*1 Higgins 503, In v. we find discussion question (now identical in which the statute P.C.) Article 1408 an robbery, held that indictment for It was there discussed. substantially defining though words statute it follows allege ownership if offense, it fails is insufficient opinion seems have been This followed property taken. logical, and is present date for the reasons court to the Higgins case. in the See Texas Jur. thoroughly discussed Vol. quote: from which we p. Sec. allege way ownership must some indictment “The taken; is, by proper it must show property averment belonged person to some other than property the ac- that cused, person deprived possession of its entitled or that against the accused.” as thereto (Form Forms, Texas Criminal No. refer to Wilson’s alsoWe upon supporting relied annotated 632) authorities ownership allegation person in a an makes which form the accused. than
other stated, third in- we hold that the count in the reason For taking alleging robbery of an automobile is dictment is, accordingly, judgment trial re- invalid. versed. Lucille Wenck State.
Emma 25,010. February No. 1951. Rehearing May Denied *2 Presiding. Barron, Judge Hon. W. S. Franklin, Woods, appellant. Parten, A. L. and Frank for
Ben Taylor Attorney, Franklin, Dickens, Palmos, County & Bill Attorney, Austin, Blackburn, George P. for Marlin, and State’s state. WOODLEY, Judge. having murder, jury assessed the
The conviction is penitentiary. years punishment at 30 in the deceased, city Miller, of Police L. Chief N. Hearne. Tidwell, Accompanied by deceased Knox went Officer city Hearne A. near home of T. Luster outskirts report a disturbance there. in answer arrived, Shortly as a after officers deceased killed through shotgun being loaded with buckshot fired result *3 of the house. window shortly arrived, and and there- Sheriff Reeves others Soon appellant house, a fired from and second shot was the after single porch a and the with out house onto
seen to come shotgun in her hands. barrel warning shots, finally put
After the had fired she the officers gun down and came fence where she was handcuffed. to the
Sheriff Reeves testified: ' right amade to me I took her and “She statement after after she came out of the house. She said she was mad and she happened sorry happened and it would if she it not have mad at him for was not Mr. Luster. She said she asked to $1.00 give and Lus- have her hair fixed and he would it to her Mr. going officer, any her call she would ter told he was to and shoot up mad.” one that come and she was The written confession was also introduced reading part the state in as follows: Wenck, “My name is Lucille Broack and I live at 801 E. Brad- years Hearne, County, in I am ford Street Robertson Texas. having age, July year, day become 21 on the 4th of this time, having gotten I a in am not married at this divorce afternoon, day about October of 1948. This on the 6th of Oc- tober, Luster, keep I a fush with Mr. who I had Tom pistol I Luster house for. a 32 caliber and Mr. hid the have pistol. got He would it mad. not tell me where was and I I also give get my Dollar wanted a to hair set he would not me and Later the dollar. I make and went down to a decided to a cake got eggs but- Miller owns and some that Mr. small store piece yard ch¡op in later some and a ter. I out wood went put my came Mr. Luster me in head a knot on head. the hit I aerial and he fixed it. I went had the radio outside and broken the in came in the chouse I asked him the house and when he give pistol I it to me. told him that he would he wouldn’t sorry. going call I looked for be He said that he was the law. pistol belonged the I and couldn’t find it. found lock box that might thought pistol Mr. and I in it. I tried Luster the open bobby pin, get open. box with I had the but couldn’t gun, single gauge lying gun, the shot which was shot shot in a up chair. When a drove I car in front of the house ran to pick gun. gone the up already chair and I had into Mr. Lust- got gun ter’s room and 5 shot shells out of the drawer. table my These pocket. I had were Buckshot. them in dress When up picked gun car I up drove with front and loaded it police one of the shells. I knew it was the car when it drove up. get I up saw one officer out of the car and walk front porch. He then turned around went then back to the car. I went house, into front room my bed on the which bed room facing and is on house, the west side of the street — police where parked. car was There bed next to street windows and I stood side of the bed and cocked gun police and fired at I car. knew there was and officer at uniform the and I car shot at the I saw an car. officer on ground by of the car and I side fired shot and I shook *4 my myself head and any said to T shot one and I want shoot recognized one else.’ I lying later Mr. L.N. ‘Slick’ Miller on the ground myself guess and he did move. I T said to he firing is dead.’ After empty this first I shot shell unloaded put good gun. and another empty in I hull shell threw the on the bed. The window fired was down when I the first shot pane and I through broke the window when went it. the shot I walked into the room on bed the East side of the house which street, sleeps. faces the and up in which Mr. Tom I Luster held gun through the shot a second time and fired the window in that room pane. toward the street. This shot broke a window also
“This shot was fired about 5 I minutes after fired the first empty shot. I then took out the and threw it on the floor hull again. in gun this same bed I room. then re-loaded I heard Mr. Lucian Luster call and some officers to me to come out of house, stayed just but I did not do it. I in the Later house. some they shots were fired at the house and I afraid would me, hit I so came out of the I house. went out the back door gun my and I had the shot and I loaded hand had it and I had shoot, gun again, it it I cocked so that would did not shoot the just up it but sat next to the house when the told me officers to and went out to the officers. right wrong
“I understand from and I know any and person. to shoot one I know that it is kill a against killing you I know people that we have laws if and that any you punished kill one that will it. grade
“I 5th went to the school and I am read and able to write. I write letters home and receive letters from home.
“I was mad at Mr. Tom Luster and I told if the him that going up they I up laws came that was and and shoot came I did shoot. and
“I this statement understand have read the contents my voluntary I and it is free and statement. have not the same whipped, promised immunity abused, threatened or from been by any one.” prosecution of the law interposed appointed by the in- defense Counsel plea testimony sanity, supported expert with from and non-expert witnesses. being subject afflic-
Appellant was to convulsions due to her right arm, paralyzed epilepsy. in her wrist She was with ted right leg hand, of her showed form of and the muscles some weakness. men- appears from all of evidence
It age tally Her mental was described some subnormal. being years, from 10 from 8 to others as witnesses years. impair- as to the extent of her mental differed witnesses non-expert expressed several Two doctors and witnesses ment. insane, opinion she that she did not know consequences wrong, know the and did not nature killing. act time of her at the *5 expressed opinion non-expert that she witnesses Other wrong, though abnormal, right from had sufficient did know wrong mentality kill man. know that it was to a to jury question re- The court submitted to the fact trial condition, defining insanity garding appellant’s mental
55 preponderance by proving of appellant the burden placing on killing. time of the insane at the that she was evidence of the verdict, by insanity their plea jury rejected the of with malice. guilty murder appellant of found jury be however, should urged, verdict of the that the is It great preponderance being contrary to the aside as set weight testimony. of re wherein a no decision this aware of areWe though ordered, similar ground solely has been on this
versal 464; urged. Tex. Jur. Grif 18 often See have been contentions 869; v. 2d Ross State State, R. 226 S.W. 154 Tex. Cr. fin v. State, 137; Tex. v. 2d Cavanar 153 Tex. Cr. R. S.W. R. 1053; Murray 147 Texas Cr. 269 S.W. Cr. 2d sane, sufficient Every presumed and to have person is to be responsible until judgment for his acts and reason to be discharge re- contrary such is established. To by preponderance sponsibility, necessary prove she that disordered that at the of the evidence that her intellect was so quality killing, of did not know the nature and time of the she doing, know, un- she was the act she or if she did so that par- distinguish and the to between the able McKenzie, is, charged, murder. Ex Parte ticular act See 2d 133. 116 Tex. Cr. R. 28 S. W. degree insanity question of fact
Whether such exists is judges jury. They to be are determined alone made weight given testimony of the witnesses and to opinions expressed by them. Exceptions complains Lee Bill of No. 6 the witness Cora objection permitted testify appellant’s Jones over 6, 1949, killing, appellant day on October knew it was kill a man. qualified by This bill was the trial court who certifies that ground only urged objection at time witness testi- qualified fied was that it was shown that the witness was give opinion. qualifications It further certified in such objection “was overruled testified because the witness de- to observation conduct and conversation with the numerous occasions.” fendant
56 except qualifications to the and is bound did not
Appellant thereby. finding supports the court’s that facts statement The express opinion qualified to an be that to herself showed
witness sane. appellant was party testify insane, layman may that a is he must Before peculiarity upon opinion which act, or omission
give some required predicate is to make formed, no admissible but is State, party sane. is See Walthall v. 144 that his conclusion 585, 2d 184. 165 R. S.W. Tex. Cr. State, 105 Tex. R. Langhorn Cr. 289 v. S.W. In non-expert opinions for such predicate regarding the rule though held that no discussed, exact could this rule express qualifications down, of the witness to an and the laid be insanity sanity largely or must be left party’s to opinion on court; if a witness testifies of the trial to discretion with and observations of personal conversations actual investigation, may he sanity is under be allowed party whose opinion. express his to express opinion allowed non-expert witness is to an
aWhen sane, why there no reason seems he should the accused express opinion right an permitted that he knows not also State, wrong. 142 Tex. R. v. Cr. See Stout 155 S.W. 2d knowledge wrong applying test as trial, appellant we see for which no error offense express opinion witness to
permitting the a man. to kill it was knew Tex. Cr. 2d testi-
In Hale saw, mony and other officers who talked the sheriff with frequently between the time of the accused the homi- observed they opinion the effect that trial were his cide insane and that he knew was was not he to kill a properly to have been received. held man was regarding disposes said this bill also has been of other What relating testimony non-expert other bills similar wit- nesses. overruling complains of the
Appellant of his motion for con- Stewart, Jim the witness upon the absence tinuance based *7 of and conduct testify to certain acts is averred would who it appellant express would upon of witness which the the basis insane. opinion that she was 1950, appellant 31, January setting prior of the on
At case and witness this sought a of of the absence continuance because 1950, 3, April postponed until response thereto, trial in application for present time court overruled at which continuance. facts, application filed for continuance
Under such application con April was a second overruled State, Winfrey R. 55 S.W. See v. 122 Tex. Cr. tinuance. 423; State, 1046; R. 24 W. 2d 114 Tex. S. 2d Mullin v. Cr. 42 Tex. 2d 118 Wheeler Cr. agree dis- are trial abused his unable to that
We overruling application ab- cretion in such second because non-expert expected testimony would this whose sence witness lay effect who testified have been the same as other witnesses opinion that inwas their insane. Excep-
Appellant Bill insists that error shown his is relating tion No. to the admission of written statement of argued appellant. “elementary” It is and “fundamen- person permitted testify tal” that a or should called not be upon express sanity. opinion an bill or own as to his her This part concerns that of said statement she said “I under- wherein wrong stand I know it is to shoot anyone and I person. it is I know that to kill know against killing you anyone we have laws people if and that kill you punished will be for it.” authority We are cited to no to the effect that such admis- by appellant sion improperly received. argument might
As suggests, such statement have little weight appellant. as evidence of the mind condition But taken in connection full her with her account of acts , conduct, admitting appellant’s we see no error in evidence killing admission that she knew that such act the deceased wrong, and criminal. Exceptions objec- overruling were reserved to the of certain charge. tions to the court’s
(cid:127)58 charge containing sixteen num- prepared trial court his counsel for examina- paragraphs furnished same to
bered charge in- numbered to 28 Objections filed were tion. “except the trial court overruled clusive which were changed objections.” to meet the above consisting charge counsel
A corrected was then furnished inclusive, paragraphs and 14a. numbered 1 to charge numbered Objections this draft were filed to renewing by inclusive, objection reference 1 to 10 the first objections. former *8 following bearing objections certificate filed the
These were judge: of the trial charge and altered the court
“Submitted and considered objections.” places above in several to conform to para- charge given jury contains 18 numbered The as to the following graphs, of are unnumbered instructions which several appear objections admonitory an to nature to which no further have been made. Exception was understood
Bill of No. 12 sets forth that “it agreed objections considered as and would that each of said charge re- objection part an to which to that of the court’s charge completed finally and read to lated when the court’s was exception jury.” the It is further this bill that shown objections, overruling in such taken “to action of the court the and each of them which had not been cured.” original
Appellant’s objections were Nos. 20 to 23 inclusive charge. specifically paragraph 14 of court’s directed to the charge appears paragraph in as No such numbered para- given, language any appear unnumbered nor does the in following charge. graph paragraph 13 of the sought ob- appellant, apply From the brief of it is language paragraph jections exceptions numbered of charge. 12 of the objections apply
This court would authorized to not be objection charge paragraphs to other no such which 376; Barkley 152 Tex. Cr. interposed. See 2d 287. charge, jury instructed as paragraph In 11 of appel- degree impairment which would entitle of mental insanity. ground of acquittal an lant to on paragraph part said of Appellant objected of last charge reading as follows: *
“* * capable mind, hand, If, sound she was of the other committing reasoning knowing to be acts she was of act, knowing consequences wrong, unlawful and evil, her power had mental to resist and refrain insanity plea a defense.” would not avail her as stating The in connec- court did not err thus the converse insanity. explanation appellant’s tion with his No defense question accuracy is raised of the instruction both as to standpoint from the state. and of the jury explanation was entitled to clear an law made, appears as could be and the trial endeavor- to have fully subject jury ed to cover the an difficult and to assist the understanding question passed upon by of the fact to be them. impressed suggestion emphasis We are with the that undue *9 given appellant prove insanity was by to the burden on cast her preponderance of the evidence. Finding requiring being no error a reversal and the evidence support verdict, judgment deemed jury’s sufficient to the is affirmed.
Opinion approved by court. appellant’s rehearing. motion
DAVIDSON, Judge.
Appellant again presses upon her evi- us contention that the touching insanity dence requires her was such as us to over- contrary turn the jury conclusion of the and hold she was that unwilling insane. This we are do. ample upon there which the
While and sufficient evidence jury appellant in- could have was reached the conclusion that
sane, is also there evidence sufficient warrant conclusion that was sane at the time of the she commission offense charged. circumstances, finding jury’s Under such will not be disturbed. passing, may point
In it well to out that the cases State, Ross v. 153 Tex. 2d Cr. S. and McGee W. carrying Rep. pen- 155 Tex. death Crim. each alty, insanity strongly presented by facts, the defense of was applied and we there the same rule here as followed. again urges
Appellant that the witness Lee Jones should Cora permitted testify not have that been on October day killing, wrong appellant knew it to kill a man. was argues contention, appellant In with connection this appellant not witness had seen the or with her for a conversed period (October 6, prior fixed six months to the time she 1949) appellant’s knowing man, it to kill was predicate therefore a shown to authorize sufficient was not testimony. nothing showing appel- exception
There is the bill period lant had seen the witness for six-month men- tioned. objection appears bill, objecting
As appellant in the expressing general opinion appellant witness knew upon theory to kill a man. was mat- It this that the disposed ter originally. present The bill does not for de- question upon. termination now insists again reviewed, The record has and we remain con- been vinced that reversible error is not reflected. rehearing
The motion for is overruled.
Opinion approved by court. *10 Calloway.
Ex Parte C. Carl 25,275. April 4, No. 1951. Rehearing May 9, Denied