An appeal from the judgment and from the order denying a new trial was affirmed. ( People v. Goold, 215 Cal. 763 [ 12 P.2d 958].) [1] On September 14, 1948, defendant filed in the superior court an unverified petition for writ of error coram nobis.
[6] We reaffirm our previous determinations that defendant has no absolute right in the sanity phase of the trial to open and close the argument to the jury but he may be allowed this privilege in the discretion of the trial court. ( People v. Letourneau, 34 Cal.2d 478, 495 [ 211 P.2d 865]; People v. Kimball, 5 Cal.2d 608, 611 [ 55 P.2d 483]; People v. Goold, 215 Cal. 763, 766 [ 12 P.2d 958]; People v. Hickman, 204 Cal. 470, 482 [ 268 P. 909, 270 P. 1117].) [7] Defendant also asserts that the court erred in (1) allowing the prosecutor to comment in argument upon his failure to testify during the guilt and sanity phases of the trial, and (2) giving an instruction on this subject on the guilt trial substantially of the type held to constitute error in Griffin v. California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106].
That question appears to be settled. [5] "No section of the Penal Code specifically directs the order of the trial upon a plea of not guilty by reason of insanity, and it has been repeatedly held that defendant has no right to open and close the argument to the jury ( People v. Hickman (1928), 204 Cal. 470, 482 [ 268 P. 909, 270 P. 1117]; People v. Goold (1932), 215 Cal. 763, 766 [ 12 P.2d 958]; People v. Kimball (1936), 5 Cal.2d 608, 611 [ 55 P.2d 483]; see, also, People v. Hardy (1948), 33 Cal.2d 52, 65-66 [ 198 P.2d 865]) although the trial court may permit him to do so (see People v. Lee (1930), 108 Cal.App. 609, 613 [ 291 P. 887])." ( People v. Letourneau, 34 Cal.2d 478, 495 [ 211 P.2d 865].)
It has been held in other cases under similar circumstances that the court could require the same jury to serve throughout the trial. ( People v. French, 12 Cal.2d 720, 765 [ 87 P.2d 1014]; People v. Goodwin, 9 Cal.2d 711 [ 72 P.2d 551]; People v. Goold, 215 Cal. 763 [ 12 P.2d 958]; People v. Woods, 19 Cal.App.2d 556 [ 65 P.2d 940]; People v. Willison, 116 Cal.App. 157 [ 2 P.2d 543].) The defendant had a full and fair trial.
However, that section is in a chapter entitled, "Inquiry into the Insanity of the Defendant before Trial or after Conviction." No section of the Penal Code specifically directs the order of the trial upon a plea of not guilty by reason of insanity, and it has been repeatedly held that defendant has no right to open and close the argument to the jury ( People v. Hickman (1928), 204 Cal. 470, 482 [ 268 P. 909, 270 P. 1117]; People v. Goold (1932), 215 Cal. 763, 766 [ 12 P.2d 958]; People v. Kimball (1936), 5 Cal.2d 608, 611 [ 55 P.2d 483]; see, also, People v. Hardy (1948), 33 Cal.2d 52, 65-66 [198 P. 865]) although the trial court may permit him to do so (see People v. Lee (1930), 108 Cal.App. 609, 613 [ 291 P. 887]). The section provides, "The trial of the question of insanity must proceed in the following order:
And it has been held repeatedly that a defendant so charged is not entitled as a matter of right to a separate trial ( People v. Rocco, 209 Cal. 68, 73 [ 285 P. 704]; People v. Eudy, 12 Cal.2d 41, 45 [ 82 P.2d 359]), but that the question of severance is one that must be left necessarily to the determination of the trial court in the exercise of its sound discretion. ( People v. Bringhurst, 192 Cal. 748, 753 [ 221 P. 897]; People v. Goold, 215 Cal. 763, 766 [ 12 P.2d 958; People v. Tinnin, 136 Cal.App. 301, 317 [ 28 P.2d 951]; People v. King, 30 Cal.App.2d 185, 206 [ 85 P.2d 928].) [19] It is not an abuse of discretion to refuse to grant a demand for separate trials because damaging testimony, admissible against one defendant and not against the other, may be received in the case, but it is then incumbent upon the court to limit such evidence in its application to the defendant to whom it is referable.
Juries are therefore usually instructed not only to make an independent judgment as to the voluntariness of a confession, but to decide whether or not the confession was true and made with the full knowledge of its meaning and effect. ( People v. Goold, 215 Cal. 763, 766 [ 12 P.2d 958]; People v. Lehew, supra, at p. 343.) In the present case, owing to the stipulation, there was no instruction relating particularly to confessions.
[5] We find no error or abuse of discretion in the ruling of the trial court refusing to permit the defendant to make the closing argument on the sanity issue. ( People v. Hickman, 204 Cal. 470, 482 [ 268 P. 909, 270 P. 1117]; People v. Goold, 215 Cal. 763, 766 [ 12 P.2d 958].) The judgment and order are, and each is, affirmed.
In People v. Tipton, 48 Cal.2d 389, 393-394 [ 309 P.2d 813], the court held that low mentality does not prevent an understanding of the meaning and effect of a confession. (See also People v. Goold, 215 Cal. 763 [ 12 P.2d 958]; People v. Rucker, 11 Cal.App.2d 609 [ 54 P.2d 508]; and People v. Boyington, 3 Cal.App.2d 655 [ 39 P.2d 867].) (1b) Not only from the officer's testimony, but from appellant's own testimony there is evidence that appellant knew at the time the police spoke with him that he did not have to talk with them if he did not want to and that he could get an attorney if he wanted one.
[28] The only error assigned in regard to the insanity phase of the proceeding is that the trial court permitted the prosecution both to open the trial and to make the closing argument. He would have us overrule People v. Letourneau, 34 Cal.2d 478 [ 211 P.2d 865], People v. Kimball, 5 Cal.2d 608 [ 55 P.2d 483], People v. Goold, 215 Cal. 763 [ 12 P.2d 958], and People v. Hickman, 204 Cal. 470 [ 268 P. 909], which have heretofore approved of this procedure. Such is not within our power. If any change is required in this particular, it must come from the Supreme Court.