Nash

I congratulate the author of the main opinion on a scholarly and correct analysis of the problems involved. I agree with his conclusion that, if there is to be a change in the rule of the M’Naughton ease, it should be made by the Legislature and not by this court.

In the past, I have felt some dissatisfaction with the rigid application of the M’Naughton rule. Shortly after the adoption in 1927 of the provisions of the Penal Code providing *55 for a bifurcated trial where an accused pleads not guilty and not guilty by reason of insanity, this court decided a series of cases rigidly restricting the admissibility of evidence of mental condition on the trial of the guilt issue. As the main opinion correctly points out, the rigid rules then adopted are no longer the law of this state. As I understand the recent decisions of this court, relevant evidence of an accused’s mental condition affecting intent where intent is an element of the crime charged is now admissible on the trial of the guilt issue. Thus the basis of my dissatisfaction with the rigid application of the M’Naughton rule no longer exists.

For these reasons I concur with the reasoning and holding in the majority opinion.

A jury found defendant guilty of first degree murder of Lawrence Rice (count 1), first degree murder of John Berg (count 2), assault with a deadly weapon upon Dennis Butler (count 3), and assault by means of force likely to produce great bodily injury upon Dennis Butler (count 4). They fixed the penalty on each murder count at death and found that defendant was sane at the time of every offense. On this appeal from the ensuing judgment and an order denying a new trial, defendant attacks the M’Naughton rule by which California measures the insanity which renders *39 a person incapable of crime 1 and urges this court “to re-examine the existing test in California for determining criminal responsibility and to update its thinking and rulings on said subject.” We are not convinced that it is necessary or proper for us to undertake this task.

At the trial on the pleas of not guilty defendant introduced no evidence. The prosecution evidence, which includes extrajudicial declarations of defendant, is as follows:

Defendant, 33 years old and of no particular occupation or fixed abode, met Butler (victim of counts 3 and 4, the felonious assaults) for the first time on Los Angeles’ “skid…