*1 nоt furnish an af- did for new trial motion Ms give the evidence would witness she from absent fidavit testify court to motion, appear in did she nor set out found, under the cir- presumed court is that effect. The would case, witness evidence оf this cumstances jury and that testi- probably her not have believed mony the result of made no would have difference controverting In the state has shown that this wit- frequently prostitute a common who had been ness was fines, pаid courts, paying appeared had so fine a short making subpoena prior application for while appellant to the trial. In gave at wMch could found address she but officers failed to find her there. necessary
It will not be to discuss further defects in the bills exception complaining of the failure of the court to say the motion for continuance. It is sufficient to dili- due gence was not shown. find no error the trial reversible case and the judgment of the accordingly trial court is affirmed.
Billie McCune v. State. March 14, 1951. No.25020. 13, 1951. Rehearing June Denied *2 Presiding. Judge McGee, David Hon. Trenary Murray,
George Worth, Ft. and Charles J. H. appellant. Attorney, Hellman, W. H. Tol Criminal District W.
Stewart McLean, E. Assistants Criminal District Attor bert аnd John Attorney, ney, Blackburn, Worth, P. State’s Fort Austin, for the state. Judge.
MORRISON, rape by punishment, force; death. offense After being drinking privilege evening and after refused taking girls appellant by home, chance, seems,, one of starting Ap- prosecutrix parking her car on a lot. observed eighteen brutally prosecutrix, pellant a married first beat woman years senior, then forced the back seat of her car and her ap- offense, her. At thе time of the commission of the ravished supporting pellant seems have been himself that old snatching. personal be- purse He took well-known trade longings prosecutrix. apprehended appellant police and wove a
Fine work soon against confessed; compelling Appellant case him. guilt corroborated, effectually
fession was and he admitted his during the course of the trial. Two conscientious attоrneys capably presented appellant’s insanity defense of proof mentality. of his low properly
The court
insanity.
submitted the
defense
Bill of
of the court’s refusal
admit certain school
from the
records
Waco Public Schools con-
tained in
what
denominated
purpose
for the
of the Bill as
*3
Defendant’s Exhibit No. 5. Nowhere in the record or in the
bill is such an
pass
instrument
to be found. For this court to
upon a
to
evidence,
bill
the exclusion of
it,
it must have before
bill,
the
Otherwise,
excluded
nothing
there is
pass
for this
upon,
court to
and the bill
not
does
reflect error.
Rodriquez
State,
104 Tex. Cr. R.
On the if other we are to assume that thе exhibit only tained by witness, the facts testified to then we can- not judge with the conclusion of the trial their ad- materially mission would have altered the verdict. So constru- ing bill, position pass question said we are a materially whether the introduction of such exhibit would have by altered the verdict and are not the trial court’s con- bound especially say which shows clusion. in view the record adjudication subsequent appellant’s feeblemindednеss by exhibit. the dates covered complains court’s failure to
Bill of charge of feeble- requested the effect that evidence a submit mitigation by mindedness should be considered proper a state- charge not penalty. requested was weight evi- law, a ment of but given. therefore, been Perez v. and, should dence S. 2d 314. R. 172 W. 146 Tex. Cr. complain Exception miscon- Bills separation duct, or conversations with unauthorized as to either deаling telephone with persons. with those bills In connection hearing jurors, it noted that a is to be conversations parties, new and all both had for on the motion was jurors they talked, there had testified that and those whom Appellant in his brief of the case. been discussion long-distance operators, who calls nor took the neither the juror’s first in Mr. office who took the the individual Grace’s telephone, had testified on called Mr. Gracе call then for shown, injury appellant contends that in- but actual No him, presumed. This not available to since his jury attorneys gave be should their consent the officers injury telephone If actual or miscon- calls to be made. prevented established, this consent would not have had duct showing prevent it, certainly should them from them from claiming but injury. presumption of dealing It is contended connection with those bills with persons with unauthorized it would the сonversations presumption injury impossible for the state to rebut which once conversation was shown to have taken arose *4 presump- place. Appellant seems to with the rule that a injury merely a of аrises the defendant shows that tion when person, spoke to member of the says an unauthorized but he rebutted, presumption in be and effect that this cannot we they testify juror or when should not believe the his wife they family they did affаirs that talked about and not about reasoning juror the case. seems to be that both the and his His always being contempt court, in of wife would in fear of held and would tell the truth therefore about their conversation. upоn reasoning.
This could not its decisions court base discharged fully duty rebutting feel that the state its We presumption, any, complained if arose which out acts of Exception in Bills of and 6. Exceptions a
Bill 5 fails to communication of No. show with most, jury. any At of it shows that a woman was member standing at the room. seen door This reflects no error. failure to of the court’s Bill It newly discovered on account
grant a new trial attorneys appellant’s two affidavit contains preparation by them in the diligence showing exercised they predicate, necessary Following defense. their client’s prior appellant laymen known had who set forth affidavits following him hаd examined of a doctor who rape and that new trial question presented a only is whether serious might granted hear so another should have been that diseases, Grice, specialist who testimony a nervous of Dr. testimony appears appellant after His examined his conviction. that form of an affidavit wherein he states record in the opinion appellant mind date of the his was of unsound on the he state offense and the date trial. Nowhere therein does is, appellant legally insane; opinion that in that he right wrong, did not and or know the difference between he consequences did not understand the nature charged against aсcepted act him. to deter- These are the tests accountability mine under the criminal law. controverting In the state’s answer to the for new general practiti- we McCollum, find affidavits from Dr. oner, Powell, psychiatrist, and Dr. both of whom examined appellant prior opinion to the trial. Each stated that in his appellant right wrong knew the difference between and that
he consequences understood the nature and of his act. upon
We are called court, determine whether the trial who had appellant testify, heard the lay- had heard doctors during men testify the course of the question trial appellant right whether wrong knew from and had thesе him, affidavits before failing abused his discretion in a new trial. prepared We are not hold that he did. Judge Lattimore in Covin 130 Tex. Cr. R. S. 2dW. said effect that a halt must be called somewhere and that a granted every trial cannot be time an alienist is discovered testify who will is insane. *5 Again we attorneys commend capably the for and conscien-
tiously representing their client.
Finding error, judgment reversible of no the the trial court is affirmed.
212 FOR
ON MOTION REHEARING. Judge. WOODLEY. overruling appel- in error we were in
It is сontended that Exceptions 4. relates to lant’s Bill of No. This bill the claim juror engaged long in jury of in that distance misconduct persons telephone with unauthorized without the conversations argued appel- that court. It is the consent of permission telephone jurors to attorneys limited calls the was lant’s their wives. jury the motion wherein mis- that for observe We by appellant alleged, and counsel was sworn knowledge was conduct belief,” allegations and and the their of “to the best supported by affi- were not otherwise misconduct
as to any position in to know the facts with reference person of davit facts, pleading was insufficient to re- these Under thereto. support hear claim of evidence court quire the State, R. 150 Tex. 200 Toms v. Cr. S.W. See misconduct. State, R. Tex. 2d 174; v. Cr. S.W. 198. Fielden 2d overruling court did err trial follows It insufficiency allegations trial for the as for new proof. failure well as disposition Regarding 2 and our there- Bill No. though charge requested suggested of, incor- it properly refused, rect, it was sufficient to call at- and therefore charge omission from correct instruction to thе tention legal subject insanity.. short of feeble-mindedness given charge proper contained a instruction to the pro- weakness of mind is no effect that mere defense crime party sufficient know accused has reason to the nature vided the charged against him, quality the act dif- knew the right wrong thereof. between ference requiring permitting cited to decision or might judge they trial to instruct in his mitigation of the accused in consider feеble-mindedness punishment to be assessed the event conviction. Not stituting any issue, aof defensive the trial court did element refusing subject. not err further In Cross S.W. was held that the trial *6 jury upon mere weakness of required court is not things eаsily persuaded do mind, party was one or that wrong. were ruling permit- inconsistency
We trial court’s see ting showing appellant’s retarded of evidence introduction declining condition, instruct subnormal mental and in fixing punish- as to thеir use such evidence ment to to an affirma- be assessed the event conviction. As defense, required tive the trial court the law and apply evidence, jury’s punishment it to the for the while determination from all re-urged ably by
Other contentions that have been counsel again attention, received our and we remain original properly disposed convinced that the case was of on submission. again express appreсiation our for the able and con-
scientious presenting efforts counsel in question on appeal standpoint from the client. their
As to the evidence said to be now available and discovered after wе cannot that the trial court abused his refusing discretion in a new trial. insanity issue of after conviction is not foreclosed against appellant may newly and it be that his discovered wit- may
nesses be offered him if that issue should be hereafter raised.
Appellant’s rehearing motion for is overruled.
Opinion approved by the court. Ex Parte George Billie McCune
and Billie State. McCune February 20, 25020. 1952.