22 Tex. Ct. App. 279 | Tex. App. | 1886
Appellant was convicted of murder of the second degree for the killing of one J. H. Martin; his punishment being assessed at fourteen years in the penitentiary.
On the trial his defenses, in addition to the plea of not guilty, were, first, resistance to an unlawful arrest by an officer acting without authority of a warrant and when no offense had' been committed by defendant, and, second, insanity.
Amongst the witnesses summoned by defendant were several medical experts whose testimony he proposed! to use on the issue
Where “the rule” is invoked as to witnesses, the the mode and manner of its enforcement is confided largely to the discretion of the court, and the exercise of that discretion will not be revised except in clearest cases of abuse. (Kennedy v. The State, 19 Texas Ct. App., 620; Bond v. The State, 20 Texas Ct. App., 421; Posey’s Texas Crim. Digest, pp. 611, 612.) Mo exception is provided by statute, exempting any particular class of witnesses from the operation of the rule. (Code Crim. Proc., Arts. 662 to 666.) Ordinarily witnesses who are summoned as experts are excepted from the rule, and in cases involving the question of insanity the better and more satisfactory practice would be to allow them to remain in the room and hear the testimony of all the other witnesses, in order that from the whole testimony they may be enabled to determine from the evidence itself the matter upon which their opinion is desired. (Johnson v. The State, 10 Texas Ct. App., 571.) Hr. Wharton states the rule otherwise, and holds that “when insanity is set up by a defendant and denied by the prosecution an expert can not be asked his opinion as to the evidence in the case as rendered, not only because this puts the expert in the place of the jury in determining as to the credibility of the facts in evidence, but because the assistance thus afforded is in most trials illusory, experts usually being in conflict, and the duty devolving on the court and jury of supervising the reasoning of experts being one which can rarely be escaped.” (Whart. Cr. Evid., sec. 418.) This whole subject was fully discussed by us in Webb’s case, 9 Texas Court of Appeals, 490, and upon a review of the authorities it was said that “as to medical experts, they may state their opinion upon the whole evidence if they have heard it all, or upon a hypothetical statement which is in conformity with the whole evidence. All authorities agree that it is inadmissible to permit an expert to give his opinion upon any thing short of the whole evidence in the case, whether he has personally heard it or it is stated to him hypothetically." (Citing Redfield’s
In the case in hand it is not shown that the hypothetical method of obtaining the opinion of the experts was either defective in not submitting all the facts essential to an intelligent opinion, noi? that the opinions were such as would have been given differently had the evidence' been heard directly by these witnesses, and their conclusions drawn from it, and not from a hypothetical statement of it. We can not perceive that the discretion of the trial judge was abused in the matter to the prejudice of defendant.
Doctor D. E. Wallace, superintendent of the insane asylum at Terrell, Texas, qualified as an expert, and upon tbe hypothetical statements submitted to him, declared as his opinion that the defendant, at the time of the homicide, was suffering from recurrent insanity. He further stated, in effect, that had defendant been consigned as insane to his custody, at no time covered by the facts stated would he have felt authorized to release him as a sane man from the asylum.
Appellant’s counsel asked this witness if he could give any illustrations of recurrent insanity which had come within his own personal experience. This testimony was objected to by the prosecution and excluded by the court. We have had no access to the authority (Lawson on Expert and Opin. Evid.) cited in support of the admissibility of the evidence in the brief of appellant’s counsel. But, even if admissible, in our view of the case its exclusion could not materially affect defendant’s rights, and the ruling would be error without prejudice, which is not reversible error. The general rule seems to be that ££ an expert may be asked by either party as to the reasons on which his opinion is based ; or he may, with leave of the court, give such explanation on his own account. Beyond this he can not go in such examination, though he may be examined in details in order to test his credibility and judgment.” (What. Cr. Evid., 8 ed., sec. 419.)
Many objections are urged to the charge of the court upon the
Different courts and different law writers have announced different tests of responsibility for crime where insanity was claimed as a defense to its commission. Mr. Greenleaf’s rule is whether the accused was laboring under such defect of reason from disease of the mind as not to know the nature or quality of the act he was doing, or, if he did know it, that he did not know that he was doing wrong—the party’s knowledge of right and wrong in respect to the very act with which he is charged. (2 Greenlf. Evid., sec. 373.) And this seems the rule as recognized in Texas in the early case of Carter v. The State, 12 Texas, 500, and also in Webb’s case, 5 Texas Court of Appeals, 596; Williams v. The State, 7 Texas Court of Appeals, 163; and Clark v. The State, 8 Texas Court of Appeals, 350.
Mr. Taylor, in his celebrated work on medical jurisprudence, speaking of moral insanity, says: “The law does not recognize moral insanity as an independent state; hence however perverted the affections, moral feelings or sentiments may be, • a medical jurist must always look for some indications of disturbed reason. Moral insanity is not admitted as a bar to responsibility for civil or criminal acts except in so far as it may be accompanied by intellectual disturbance” (p. 780). From the time of the decision in the noted McHaughten case (10 Cl. and Fin., 200), the English courts have followed the doctrine as the same is announced by Greenleaf, and they have refused to recognize the coexistence of an impulse absolutely irresistible with capacity to distinguish between right and wrong with reference to the act, and in most of the American States the
It is held in Oregon that if the accused knew enough to know the difference between right and wrong and that he was violating the law by the commission of the act, it will not excuse him although he had surrendered his judgment to some mad passion, which, for the time being, was exercising a strong influence over his conduct. (State v. Murray, reported in 6 Cr. L. Mag., 255.) Ungovernable passion is not insanity, and one whose power of will is not impaired by disease, and who, yielding to passion slays another, is subject to the punishment fixed by law. (Saunders v. The State, 94 Id., 147.)
It is said by the Supreme Court of Alabama: “There is a species of mental disorder, a good deal discussed in modern treatises, some times called ‘irresistible'impulse,’ ‘moral insanity,’ and perhaps by some other names. If by these terms it is meant to affirm that a morbid state of the affections or passions, or an unseating of the moral system, the mental faculties remaining meanwhile in a normal sound condition, excuses acts otherwise criminal, we are not inclined to assent to the proposition.. The senses and mental powers remaining unimpaired, that which is some times called moral ór emotional insanity savors too much of a seared conscience or atrocious wickedness to be entertained as a legal defense. Gibson, C. J., in Commonwealth v. Mosher,
And so in The People v. Horn, 63 California, 120, it is held that “ an irresistible impulse to commit an act which one knows is wrong or unlawful, if it ever exists, does not constitute the insanity which is a legal defense. Whatever may be the abstract truth, the law never recognizes an impulse as uncontrollable which yet leaves the reasoning powers, including the capacity to appreciate the nature and quality of the particular act, unaffected by mental disease. It can not be said to be irresistible because not resisted.” And in Wallace v. The People it is laid down that if an accused has sufficient reason to know right from wrong, it is immaterial whether he had sufficient
But even in Pennsylvania the doctrine of uncontrollable impulse appears to have been greatly modified, if not repudiated entirely; for we find the Supreme Court of that State, in 1885, announcing, in The Commonwealth v. Taylor, that “moral insanity is not sufficient to constitute a defense unless it be shown that the propensities in question exist to such an extent as to subjugate the intellect, control the will, and render it impossible for the person to do otherwise than yield thereto. Ho mere moral obliquity of perception will protect a person from punishment for his act. The jury should be satisfied, with reference to the act in question, that his reason, conscience and judgment were so entirely perverted as to render the commission thereof a duty of overwhelming necessity.” A man in the condition thus described would be unquestionably insane to all intents and purposes, in our opinion.
We deduce from the authorities, as a correct general conclusion, that the law does not require as the condition on which c riminal responsibility shall follow the commission orf crime the possession of one’s faculties in full vigpr, or a mind unimpaired by disease or infirmity; that the mind may be weakened by disease, or impaired, and yet the accused be criminally responsible for his acts; that he can only discharge himself from responsibility by proving that his intellect was so disordered that he did not know the nature and quality of the act he was doing, and that it was an act which he ought not to do. But that if, on the other hand, he had sufficient intelligence to know what he was doing, and the will and the power to do or not to do it, he is, in contemplation of law, responsible for the act he has committed. (State v. Martin, N. J., reported in 3 Crim. Law Mag.. 44; see also Dunn v. The People, 109 Ill., 635, and 1 Bish. Crim. L., sec. 391.)
But let us concede, for the sake of argument, that defendant was entitled in this case to have the doctrine of irresistible impulse and uncontrollable will given in charge to the jury, then we think it is manifest from the following extracts taken from the charge that the law was sufficiently given, and that defendant has no just ground of complaint in the matter. The jury were instructed: “A safe and reasonable test in all cases would be that whenever it should appear from all the evidence that, at the time of doing the act, the prisoner was not of sound mind, but was affected with insanity, and such affection was the effi
We are of opinion that the charge upon the general doctrine of insanity was sufficiently full, and that it amply submitted the question of irresistible impulse and uncontrollable passion, at least as far as we are willing to go in that direction, and therefore there was no error in refusing the special requested instructions.
But, again, it is insisted that the court erred in the refusal of defendant’s special instruction to the effect that the law presumes insanity to continue after once shown to exist. In Webb’s case, 5 Texas Court of Appeals, 596, this court quotes from Mr. Greenleaf that “if derangement or imbecility be proved or admitted at any particular period, it is presumed to continue
Doctor Wallace’s opinion was that defendant was a subject of ‘1 recurrent insanity.” 1 ‘ Recurrent ” means returning from time to time. Mr. Wharton lays it down as a rule that there is no presumption that fitful and exceptional attacks of insanity are continuous—a proposition manifest in itself. It is only insanity of a chronic or permanent character which, on being proved, is presumed to continue. (Whart. Cr. Ev., sec. 730.) On the other hand, the rule prevails that where an insane person has lucid intervals, the law presumes the offense of such person to have been committed in a lucid interval, unless it appears to have been committed in the time of his distemper. (1 Russ on Crimes, 9 ed., top p. 10, s. p. 11; 1 Hale, 33, 34.)
In an able article on “presumptions in criminal cases,” published in the first volume Criminal Law Magazine, Doctor Wharton says: “Supposing, however, insanity has been proven to exist at a particular time, is it presumed to continue? So we have been some times told, but erroneously. Some diseases which are classed under the general category of insanity are undoubtedly chronic and permanent, and from them recovery is hopeless. From senile dementia and congenital idiocy there can be, as a rule, no recovery. There are few other forms of insanity of which recovery may not be predicated, at least as a contingency, and many forms of insanity, for example, puerperal and climacteric, arising from some peculiar transitional condition of the system, are notoriously temporary. It is a petitio principii to say-that chronic insanity is presumed to continue; it is untrue to say that temporary insanity is to be considered as anything else than temporary. The fact is, there is no presumption of law whatever as to the continuance of disease of any kind. The question is one of experience, to be determined by the character of the disease, taken in connection with the character of the person in whom it acts.” Aside from this, the burden is upon the defendant to show that he was insane at the time of and with regard to the particular act, and the presumption of sanity in temporary or recurrent insanity is against him, and must be overcome by him with a preponderance of evidence. (2 Bish. Cr. Proc., 674.) It was not error to refuse the special instruction upon this subject.
Our statutes make a difference in the practice with regard to charges in civil and criminal cases. In the former the charge is regarded as excepted to without the necessity of taking any bill of exceptions thereto. (Rev. Stat., Art. 1318; 2 Cond. Cases, Willson, secs. 135, 656), while in the latter it is expressly provided that if any of the eight provisions of the code with regard to the charge are disregarded “the judgment shall be reversed if the error is excepted to at the time of the trial.” (Code Crim. Proc., Art. 685; Clanton v. The State, 20 Texas Ct. App., 615, and authorities cited.) If no exception has been taken, then the question of the error in the charge may be raised on motion for a new trial, and a new. trial shall be granted “where the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.” (Code Crim. Proc., Art. 777, subdivision 2.) It is a well settled rule that a charge of the court, when first questioned as to its correctness in the motion for new trial, will not be revised on appeal unless, when viewed in the light of the circumstances, it was calculated to prejudice the rights of the accused. (Hart v. The State, 21 Texas Ct. App., 163; Mendiola v. The State, 18 Texas Ct. App., 463; Lewis v. The State, 18 Texas Ct. App., 401;
Applying these rules to the facts proven, we can not perceive that the error of the charge was calculated to injure defendant’s rights. It is abundantly shown that he was cursing in a public place and handling, if not flourishing, a knife. The druggist in front of whose store he was cursing was disturbed, and asked the deceased as an officer to take defendant away from his house. Complained of for the first time on the motion for new trial, when considered in the light of these facts,, we must hold that the error in the charge was without prejudice.
Another objection is that the court in effect charged the jury that, when the facts have been proven which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to justify or excuse the prohibited act. (Penal Code, Art. 51.) This identical question was raised in Jones v. The State, 13 Texas Court of Appeals, 1, and it was there held that “ when an accused relies upon any substantive, distinct, separate and independent matter as a defense, which is outside of and does not necessarily constitute part of the act or transaction with which he is charged (such as the defense of insanity, etc.), then it devolves upon him to establish such special and foreign matter by a preponderance of evidence. It would not be error to instruct in such cases that the burden of proving such defenses devolved upon the accused.” (Smith v. The State, 18 Texas Ct. App., 69; 7 Allen, Mass., 306; 62 Iowa, 414; 81 Kentucky, 662.)
The supplementary motion for new trial was properly overruled. “A new trial must be applied for within two days after the conviction; but for good cause shown, the court, in cases of felony, may allow the application to be made at any time before the adjournment of the term at which the conviction was had.” (Code Crim. Proc., Art. 779; Hart v. The State, 21 Texas Ct. App., 163; Smith v. The State, 15 Texas Ct. App., 139; Bullock v. The State, 12 Texas Ct. App., 42; White v. The State, 10 Texas Ct. App., 167.) Appellant was convicted at one term and an appeal was taken; the appeal was dismissed and the motion was made at a subsequent term. That was not the term at which the conviction was had.
It only remains to pass upon the sufficiency of the evidence. It is true the medical expert, Doctor Wallace, thought the de
Because we have failed to find any reversible error in the record the judgment of the court below is in all things affirmed.
Affirmed.
