155 S.W.2d 374 | Tex. Crim. App. | 1941
The indictment charged appellant with burglary of a house occupied and controlled by Stella Lea, on or about January 27, 1941, and further charged that appellant had theretofore been twice convicted of felony offenses, thereby seeking application of Art. 63 P. C. against appellant as an habitual criminal. Appellant was convicted and his punishment assessed at life imprisonment in the penitentiary.
Appellant sought to quash the indictment on five grounds. The first and second grounds are clearly untenable, and require no discussion. The third ground urged was that the indictment contained no allegation that the prior convictions were for like offenses as the one presently charged. Appellant has apparently confused Articles 62 and 63 of the Penal Code. The State was not seeking an increased penalty because of a previous conviction for an offense of the "same nature,” as permitted under said Article 62, but was proceeding under Art. 63 — in which case it is not essential that the prior convictions be for “like” offenses. There-need only be two previous convictions for felonies less than capital. Belton v. State, 130 Tex. Cr. R. 7, 91 S. W. (2d) 728; Arnold v. State, 127 Tex. Cr. R. 89, 74 S. W. (2d) 997.
“* * * An the Grand Jurors aforesaid do further present that prior to the commission of the aforesaid offense by the said C. R. Stout, hereinbefore alleged, the said C. R. Stout was two times duly and legally convicted of a felony less than capital, as follows, to-wit: On the 31st day of January, A. D. 1935, in the District Court of Wichita County, Texas, in a case numbered upon the docket of said court, Number 6171, and entitled the State of Texas v. C. R. Stout, the said C. R. Stout under the name of C. R. Stout, was duly and legally convicted in the last named court of a felony as aforesaid, to-wit: the felony of burglary; and on the 28th day of November, 1931, in the District Court of Wichita County, Texas, in a case numbered upon the docket of said court, Number 5359, and entitled the State of Texas v. C. R. Stout, the said C. R. Stout under the name of C. R. Stout, was duly and legally convicted in the last named court of a felony, as aforesaid, to-wit, the felony of burglary, which conviction occurred, and the judgment thereon became final, prior to the commission of the offense for which the said C. R. Stout, under the name of C. R. Stout, was convicted in cause Numbered 6171 in the District Court of Wichita County, Texas, as aforesaid; and the said convictions in cause Numbered 6171 in the District Court of Wichita County, Texas, and in cause Numbered 5359 in the District Court of Wichita County, Texas, occurred, and the judgments thereon became final, prior to the commission of the offense hereinbefore alleged in and by this indictment, * * *”
It is alleged that the conviction in No. 5359 occurred and the judgment became final before the commission of the offense charged in No. 6171, and that the convictions in both of said numbered cases occurred and became final before the commission of the offense presently charged. If this be true the former convictions were of necessity separate felonies. '
Before considering other complaints brought forward by bills of exception it may be well to state briefly the facts. Officers patrolling the streets of Wichita Falls on the night of January 27, 1941, observed that the lock on the door of the burglarized house had been broken. Upon entering the house, which was a cafe, they found a tow-sack leaning against the wall, the sack containing various articles which were kept for sale in the cafe. The officers by the use of their flash lights found appellant hiding beside a refrigerator. When the light was flashed on him, he said, “Don’t shoot. I am harmless; you have got me cold turkey this time.” The officers arrested appellant and called other officers, who took appellant and the sack to the police station. Proper evidence was presented by the State showing the former convictions of appellant for burglary, as alleged in the indictment.
Objection was urged to the State placing in evidence the above quoted statement of appellant, on the ground that it was hearsay, and also that it was a confession not made in compliance with the statute. The statement was res gestae, and not subject to either objection. Goforth v. State, 100 Tex. Cr. R. 442, 273 S. W. 845; Jones v. State, 106 Tex. Cr. R. 633, 294 S. W. 562, and cases therein cited.
Appellant defended on the ground of insanity, or temporary insanity at the time of the burglary. Bill of exception number three reflects the following incident. Jess Leverett was one of the officers to whom appellant was turned over by the arresting officer. Leverett was called as a witness by appellant, and testified on direct examination that when the officers took appellant to the police station he was placed in what they called the “drunk” cell. On cross examination by the State the witness testified that appellant was not drunk on the occasion in question, but assigned other reasons why appellant was placed in such cell. After proving by Leverett that he had known appellant
“The capacity of an accused person to be legally responsible for the crime charged depends also upon a legal definition; and it would therefore be equallly improper to ask for the witness’ testimony without first eliminating the element of law from the question. But an inquiry whether he knew the difference between right and wrong, or whether his will could control his actions, would be proper.”
In the note under said section cases from different states are cited as either in accord with or contrary to the text. In our own State it is not questioned but that a non-expert witness, when qualified to do so, may express his opinion as to the sanity or insanity of accused. It is further definitely settled in
“* * * But, conceding this, let us see if this character of opinion evidence is competent when the witness is called on to express an opinion as to whether the accused had mind sufficient to know right from wrong. Without dealing in the refined or confusing distinctions of which the subject is capable, but treating it as a practical question in the administration of the criminal law, we are unable to make any distinction between the legal effect that should be attached to the competency of a question involving the soundness of mind of the accused and a question involving his capacity to know right from wrong. If a person is of sound mind, as soundness of mind is commonly understood by nonexpert witnesses, then he is capable of distinguishing between right and wrong, and should be held accountable for his acts. On the other hand, if he is of unsound mind, he should not be held legally responsible for what he does. Therefore, when a nonexpert witness is allowed to express an opinion that the accused is of sound mind, there seems no reason why he should not also be permitted to express an opinion that he knows right from wrong. One opinion does not require more knowledge than the other, nor is one more than the other a usurpation of the functions of the jury. The reasons that would justify the admission of this evidence in the one instance justify it in the other; and the practice that would reject one opinion would reject the other. * * *”
It follows from what has been said that we do not regard the action of the court in admitting the evidence complained of as calling for a reversal.
We observe in passing that appellant seems to have injected the issue as to his knowledge of right and wrong by asking his own witnesses their opinions regarding that matter when they were testifying on the issue raised by his insanity plea.
By bill of exception number four appellant complains that the State asked the witness Alice Stout if she recalled when
Bills of exception numbers five, six and seven are not briefed by appellant, but there being no waiver thereof we have examined them carefully, and find no merit in the complaints brought forward in said bills.
Finding no reversible errors in the record, the judgment is affirmed.