if any such really existed, to be offered upon the trial. Nor does it appear that the insanity of the defendant which warranted his commitment to an asylum in Iowa in 1887 was of such a character as would have any bearing on the question of the degree of insanity which must exist to relieve him of responsibility for the crime with which he was charged; that is, a mind so diseased as to be incapable of distinguishing between right and wrong. It is well known that one may be suffering from a peculiar mental derangement or particular phase of insanity which would authorize his confinement in an asylum for care and treatment but who would yet have sufficient mental capacity to understand the nature and character of his actions and to distinguish between right and wrong, and, hence, to be accountable under the law for his criminal conduct. (People v. Willard, 150 Cal. 553.) As to the matter of the ascertainment of the actual existence of this commitment or the nature of the insanity of the defendant as disclosed by it, if it existed, nothing definite is shown or stated. It does not appear even that counsel had ever entered into any correspondence or took any measures to ascertain, or that he did definitely ascertain, the existence of any such commitment or record. No diligence in this matter is shown at all. The second affidavit is clearly insufficient. It simply states that the testimony of certain named witnesses residing

in Iowa is material to the defendant. It does not con

evidence

tain any statement of a single fact or item of which it is expected the witnesses would testify to. It was necessary to show what facts it was expected these witnesses would testify to in order that the court might determine whether the testimony it was expected they would give would be material to the defendant and so warrant the granting of a continuance by the court until it could be obtained.

Nor was the position of appellant strengthened by the third affidavit. It was fuller than the others and that is really the most that can be said for it. It showed that counsel received letters from some parties who were communicated with in Iowa "tending to show the insanity of the defendant". But these letters do not accompany the affidavit nor were the facts, if any, which were mentioned in the leters contained in the affidavit of counsel. For all that appears to the contrary these letters amounted to nothing more than an expression of opinion by the writers on the subject of the insanity of defendant. There is nothing in the affidavit to show when these people knew the defendant; whether in 1887, some twenty-eight years ago and about the time it is claimed he was sent to the asylum in Iowa, or during later years. It nowhere appears when defendant left Iowa or how long he had been in this state. Nor does it appear what the acquaintance or association of any of these letter writers was with the defendant or what were their opportunities of observation of his conduct. Nothing anywhere showing what any of them knew about him, or what facts they expected to testify to; nothing except the general statement of counsel that in his opinion the letters suggest matters "tending to show the

insanity of the defendant". But the trial court was entitled to be put in possession of the facts, if any, which these witnesses stated they would testify to as tending to show the insanity of the defendant, whether they were contained in the letters referred to by counsel or derived by him from any other source, so that the court could determine whether the testimony of the proposed witnesses was material or not as tending to show that degree of insanity which would relieve defendant from responsibility for crime and which must have a reasonable tendency to show the existence of such a diseased and deranged condition of his mind at the time he committed the criminal act charged that he was incapable of distinguishing between right and wrong respecting it. While there are many kinds or degrees of insanity it is, as we have said, only this degree which will relieve from responsibility and it is only evidence which tends to establish such a degree of insanity which is material evidence. There is not the slightest showing in the affidavits that the testimony which would be given by the proposed witnesses tended to show insanity of the defendant in the degree required. Nor were the statements in the affidavit with reference to the opinion expressed by the attorney in Iowa and his alleged activity in the matter of procuring testimony there as to the insanity of the defendant sufficient, taken by themselves, or in connection with the other affidavits presented, to require the court to grant the continuance. This attorney expressed the opinion that defendant was insane; that if given an opportunity he could get a large number of witnesses to testify to it and that he was collecting data for the purpose of securing testimony to show such insanity. It does not appear that the Iowa attorney knew or ever saw the defendant nor upon what grounds he based his opinion as to his insanity. Neither does it appear that he had imparted to the attorney for the defendant any facts or data which would be testified to by witnesses in Iowa. His communications in the early part of his correspondence with counsel for defendant only express a hope or expectation of being able to do so which seemed to be no nearer attainment at the time the motion for the continuance was made than when first expressed because he had not communicated with counsel for defendant on the subject for almost a month before the trial. It is further suggested that there is nothing in the affidavits to show but that the evidence which defendant expected to produce from Iowa and which, as far as any definite date was stated in the affidavit, would be addressed to a period some twenty-eight years before the commission of the crime with which defendant was charged, would be too remote to be admitted in evidence if procured, and further, that it was not shown in the affidavits that such evidence would be necessary to the defendant, that is, that he could not sustain a defense of insanity by witnesses present in this state and without the testimony of these witnesses in Iowa, We do not discuss these last suggestions because, for the reasons we have already given and which go to the more vital defects in the affidavits,

we are satisfied that there was an absence of any legal showing sufficient to have required the court to grant the motion for a continuance of the trial and that the order denying it was therefore properly made.

[3] As to the refusal of the court to call a jury to try the then sanity of the defendant. This motion was made on the day set for the trial of the cause and preceded the motion for a continuance. It was made under section 1368 of the Penal Code which provides that "If at any time during the pendency of an action . . a doubt arises as to the sanity of the defendant the court must order the question as to his sanity to be submitted to a jury; . . .," and was based on an affidavit of one of the counsel for defendant that he had conversed with defendant for an hour on each of two occasions and believed that he was insane, and further, that counsel were informed that defendant had escaped in 1887 from an asylum in Iowa to which he had been committed.

The doubt referred to in section 1368 supra, upon the existence of which a trial of the present sanity of a defendant must be had is a doubt arising in the mind of the court having the defendant in charge. (People v. Hettick, 126 Cal. 425.) Counsel for appellant assume that a doubt of the sanity of defendant must legally have been engendered in the mind of the court on the affidavit of counsel expressing his belief that defendant was then insane, coupled with the further averment of the escape of defendant from an asylum in Iowa to which he had been committed some twenty-eight years before. But the court was not constrained to entertain this doubt simply because counsel entertained such a belief proceeding from some conversations with defendant or the suggestion of a previous commitment and escape. All that was presented on the hearing of the motion was this affidavit of counsel. There was no evidence, oral or documentary, introduced on the subject. But opposed to these matters stated in the affidavit of counsel for defendant, as is said in People v. Kirby, 15 Cal. App. 264-269: "It is fair to assume that the trial court had ample opportunity to, and did, as was its duty, observe and note the defendant's mental condition from time to time, and in particular on the date when his present insanity was suggested. The knowledge thus acquired may have contributed largely toward rebutting any possible inference of present legal insanity which might have been deduced from the facts stated in the affidavit. Section 1368 of the Penal Code contemplates that the doubt referred to therein must arise in the mind of the court having a defendant in charge (People v. Hettick, 126 Cal. 425; Webber v. Commonwealth, 119 Pa. 223); and in the absence of such a doubt the court is not required to submit the question of the defendant's present insanity to a jury in advance of the trial. (People v. Geiger, 116 Cal. 440.)"

The ruling of the court denying the motion amounted to a finding by it that it entertained no doubt of the sanity of the defendant at the time the motion was made and we perceive no reason for questioning the accuracy of this conclusion.

We have noted and considered all the points urged on this appeal. The evidence amply supports the verdict and there being no merit in the other assignments of error the judgment and order appealed from are affirmed.

We concur:

SLOSS, J.

SHAW, J.

ANGELLOTTI, C. J.

LAWLOR, J.

MELVIN, J.

LORIGAN, J.

S. F. No. 7446. In Bank. June 22, 1915.

MT. KONOCTI LIGHT AND POWER CO. (a Corporation), Petitioner, v. MAX THELEN, H. D. LOVELAND, ALEX GORDON, EDWIN O. EDGERTON and FRANK R. DEVLIN, as members of and constituting the Railroad Commission of the State of California, Respondents.

[1] RAILROAD COMMISSION-REHEARING OF PROCEEDING-REGU LARITY OF PROCEDURE.—Upon this application for a writ of certiorari to review the proceedings of the railroad commission with a view to the annulment of an order made by the commission on an application for a rehearing it is held that while in view of the language of the statute the power of the commission may be doubted, if it grants an application for rehearing without an opportunity of a hearing to the adverse party, to make any change in the order already made without an opportunity to such party to be heard on the rehearing, that upon the showing made herein there was no substantial departure from the procedure provided by the act affecting any substantial right or beyond the power of the commission.

[2] ID. ID.-ORDER UPON REHEARING-EXPIRATION OF MORE THAN TWENTY DAYS AFTER FINAL SUBMISSION-VALID ORDER-CONSTRUCTION OF PUBLIC UTILITIES ACT.-An order made by the railroad commission upon an application for the rehearing of a proceeding before it made more than twenty days after the final submission of the matter for decision is not void, as the provision of the Public Utilities Act that under certain circumstances the commission "shall forthwith proceed to hear the matter with all dispatch and shall determine the same within twenty days after final submission and if such determination is not made within such time, it may be taken by any party to the rehearing that the order involved is affirmed", is simply directory so far as the commission is concerned, in no way going to its jurisdiction and in so far as the parties are concerned simply authorizes them, pending final decision, to act without fear of penalty upon the assumption that the order is affirmed.

[3] ID. REVIEW OF PROCEEDINGS-LIMITATION.-The Public Utilities Act in terms provides that the review by the supreme court of proceedings before the railroad commission "shall not be extended further than to determine whether the commission has regularly pursued its authority, including a determination whether the order or decision under review violates any right of the petitioner under the constitution of the United States or of the state of California", and it is held on this application for a writ of review that there is no ground in the showing made in support of the application for the claim that the commission had not "regularly pursued its authority", or, in other words, had exceeded its jurisdiction in vacating its first order and dismissing petitioner's complaint or for

the claim that any right of petitioner under either constitutions is affected.

Application for writ of certiorari prayed to be directed against Max Thelen, H. D. Loveland, Alex Gordon, Edwin O. Edgerton and Frank R. Devlin, as members of and constituting the railroad commission of the state of California.

For Petitioner-Wm. S. McKnight.

For Respondents-Douglass Brookman,

Application for a writ of certiorari.

The proceeding before the railroad commission which it is sought here to review was one by the Mt. Konocti Light and Power Company, petitioner here, against James A. Gunn, Jr., complaining that Gunn was constructing his hydro-electric system from Kelseyville, Lake county, to the village of Finley, in the same county, the last named village being territory not theretofore served by him, but already occupied by the power company, and was about to enter into competition with it there, and asking for an order restraining Gunn from so doing. It is assumed he had no certificate of public convenience and necessity from the railroad commission authorizing him to make such extension of his system. (Sec. 50, Public Utilities Act.) By his answer Gunn denied certain allegations of the complaint and set up his right to do as he was doing by reason of a franchise granted by the supervisors of Lake county, under which he had commenced to do business before the effective date of the Public Utilities Act.

The commission first made an order restraining Gunn as asked, but on his application for a rehearing, which, according to the petition here, was heard by the commission at a time and place fixed by it, and finally submitted to it for decision on February 18th, 1915, vacated and annulled this order and dismissed the power company's complaint on May 5th, 1915. This action was had on the theory that the commission had no power to prevent Gunn from exercising the franchise given him by the supervisors of Lake county.

The power company seeks from this court a writ of certiorari to review the proceedings of the railroad commission, with a view to the annulment of the second order of the commission, the order vacating the first order and dismissing the complaint.

[1] 1. It sufficiently appears from the petition and exhibits attached thereto that there was a hearing on the application for rehearing at a time and place fixed by the commission, that the matter was finally submitted to the commission for decision and that such submission involved the determination of the rights of the respective parties on the merits of the controversy in the event that the commission concluded that its original decision Under the circumstances no further hearing was was erroneous. essential or apparently desired. While in view of the language of the statute we might doubt the power of the commission, if it grants an application for rehearing without an opportunity of a hearing to the adverse party, to make any change in the