Lane v. State , 59 Tex. Crim. 595 ( 1909 )

In the original opinion prepared in this case the following statement was made: "In the first place the application does not affirmatively show what was expected to be proved by the witness. The application shows a mere conclusion in that it says that the witness had noted the conduct of the defendant tending to prove his lunacy. What it was or what she would swear to that tended to prove it is not shown in the application." The correctness of this statement is challenged, and we find on a more careful examination of the record that the statement made in the opinion is not entirely accurate. It is averred in the application that: "Defendant was an inmate of the house of Max Roberts, in Houston, Texas, and was constantly for said time, both day and night, under the espionage of said Max Roberts and his wife, Freda Roberts, and that they daily and nightly watched and observed the defendant and knew that his mind was shattered and that he was insane and non compos mentis up till the time and during all of the three weeks that he was at their house in Houston as aforesaid, and up till the Thursday before the killing, when he left said Max Roberts' house, and left the town of Houston and came to Navarro County, under the advice of the said Max Roberts and his said wife, Freda Roberts, to try to get a reconciliation with his wife and family, and to seek medical advice for his mental and physical condition. That said witnesses will establish the fact that all during his stay at their house as aforesaid that he would not or could not sleep; that his room adjoined the room of these witnesses and that he would walk the floor all night long, and that he would kneel and frequently pray during the night, and would incoherently mumble strange statements, strike his head against the wall and cry and hallo constantly, and his actions were such as to show that his mind was unbalanced, such as to render him incapable of any reasonable action or of forming any designs and shows that he was suffering from some insane delusion and that he was in this condition when he left Houston, as aforesaid, either on Wednesday or Thursday night, just preceding the killing."

As stated in the original opinion, there was, we think, an utter want of any such diligence as the law requires to secure the testimony of Mrs. Roberts. It should be noted further that no process of any kind was issued or applied for in respect to Mrs. Roberts until the case was called for trial. This lack of diligence is sought to be explained and nullified on account of appellant's mental condition, he being unable, as it is averred, to inform his attorneys as to the witnesses he needed. If information had reached them of the nature of the testimony of Max Roberts, it would seem that reflection must have suggested that his wife would have had the same or similar opportunities for observing appellant. Besides, if in a case where insanity is a defense diligence may not be required of those representing him, it would result in innumerable continuances, and this would be true in cases where appellant was feigning insanity, as was contended by the State in this case, which contention finds large support in the record. It should be noted further that the affidavit of Mrs. Roberts is not attached to motion for new trial, and it does not distinctly appear what her testimony would be touching this matter. The trial court in approving the bill of exceptions concluded that the testimony expected to be given by this witness was not probably true. While this finding might not be conclusive upon us, in the absence of affidavit by witness as to what her testimony would be, and in view of the fact that the testimony of her husband does not fully meet the proof expected to be adduced through him, we are scarcely prepared to disregard this explanation and statement of the trial court. Again, it is undoubtedly true that a large discretion must be and is by law vested in the trial court in respect to matters of this sort, and ordinarily this discretion is not the subject of review unless in a particular case it is shown to have been abused or to have been exercised without due regard to the facts. In this case not a witness for defendant testified that he was insane to the extent that would excuse him for a violation of the law. More than a score of witnesses on the contrary testified for the State that he was sane and able to judge the character and quality of his act. The commission of physicians appointed by the trial court at the instance and request of appellant unanimously reported and testified that he was sane. His neighbors and those who had known him for many years testified to the same effect. The evidence offered in his behalf barely raises a suspicion to the contrary. A majority of those testifying for him described him merely as being nervous; that he appeared to have a "soft spot," to be "cranky," and kindred expressions, but as we read the record not one of them testified positively that even in his opinion that he did not know at the time of the killing or at any other time right from wrong. In view of the testimony of numerous witnesses who saw appellant after he left Houston and at the home of Mrs. Roberts and had come to Corsicana just before the killing, who testified in their opinion that appellant was sane and there was nothing strange or unusual in his conduct except one or two of said witnesses speak of his being under the influence of liquor, which from the record seems unfortunately to have been too common with him, would well justify the court below and would well justify us in concluding that the testimony of Mrs. Roberts, as stated in its entirety in the application, was probably not true. Considering all these matters in connection with the unquestioned rule often stated and well established that we should not and would not reverse a judgment on account of the refusal of an application for continuance unless in cases that by all the evidence adduced on the trial we are impressed with the conviction that the defendant might probably have been prejudiced in his rights by such ruling, and that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to defendant would have resulted. See Sweeney v. State, decided at present term; O'Hara v. State, 57 Tex. Crim. 577,124 S.W. 95; Land v. State, 34 Tex.Crim. Rep.; Gallagher v. State, 34 Tex.Crim. Rep.; Easterwood v. State, 34 Tex.Crim. Rep.; Bluman v. State, 33 Tex. Crim. 43; Goldsmith v. State, 32 Tex.Crim. Rep.; Holley v. State, 49 Tex.Crim. Rep., 92 S.W. Rep., 422.

We see no occasion to review or discuss the other questions treated in the opinion. We naturally feel a sympathy for appellant, notwithstanding the horror of his deed. His gray hair and old age appeal to us most strongly, but we can only administer the law without regard to persons.

Believing that the conclusion arrived at in the original opinion is correct, the motion for rehearing is overruled.

Overruled.

Davidson, Presiding Judge, and Thomas B. Love, Special Judge, concur.