Williams v. State , 125 Tex. Crim. 31 ( 1932 )

We said in our original opinion that the state introduced as a witness upon the hearing of the motion for new trial a physician of "thirty-five years standing." Our attention has been called to an inaccuracy in the statement. We should have said of "five years standing." The original opinion has been corrected accordingly.

The motion for rehearing is predicated upon two propositions advanced by appellant, and stated by him as follows: (a) "That evidence of insanity produced for the first time in a motion for new trial requires the granting of a new trial." (b) "That where the issue of insanity definitely appears in a case for the first time upon motion for new trial that the trial court has no discretion but must grant a new trial."

We think the cases cited by appellant do not support his propositions when so broadly stated. An examination of the authorities, does however, make it quite apparent that in such cases, as in all others, what is said by the court must be construed in the light of the facts in the particular case. In the very nature of things, when insanity is an issue the general rule as to diligence regarding claimed newly discovered evidence should not be as rigidly enforced as in other cases. Generally, both appellant and his attorney must show absence of knowledge before the trial of the evidence claimed to be newly discovered, and that lack of such knowledge was not for failure to exercise reasonable diligence. As has been said many times, if accused is of unsound mind the law will not and should not hold him to the same diligence as in cases where insanity is not an issue, and in that respect the rule has been relaxed. Many cases have been examined in the consideration of the motion for rehearing. Most of them appear to fall in certain well defined groups, viz: (a) Where some evidence was introduced on the trial which tended to show that accused was of unsound mind, and no diligence on the part of accused towards newly discovered evidence was shown, but the attorney who represented him at the trial is shown to have used reasonable diligence. Illustrative, see Schuessler v. State, 19 Texas App., 472; Rowden v. State, 112 Tex.Crim. Rep., 18 S.W.2d 170. (b) Where accused was not represented by counsel on his trial, and the showing of insanity was first made upon motion for new trial predicated on newly discovered evidence. Illustrative, see George v. State, 114 Tex.Crim. Rep.,26 S.W.2d 249; Warren v. State, 114 Tex.Crim. Rep.,24 S.W.2d 1090. (c) Where the facts incident to the offense as developed on the trial strongly suggest that accused was of unsound mind, and the evidence produced on motion for new trial is so cogent on the issue of insanity as to almost conclusively establish it. Illustrative, see Horhouse v. State,50 S.W. 361; Walker v. State, 86 Tex.Crim. Rep., 216 S.W. 1085; Lindsey v. State, 97 Tex.Crim. Rep., 260 S.W. 862; Hill v. State, 53 S.W. 845. The case of Rich v. State,115 Tex. Crim. 386, 28 S.W.2d 802, falls partly in both class (a) and (c).

It would extend this opinion to unnecessary length to review the facts of the particular cases, but an examination of Walker v. State (supra), Lindsey v. State (supra), and George v. State (supra), upon which appellant appears to chiefly rely will reveal facts, in the light of which, the disposition of those cases and the language used in the opinions may be well understood, and which to our minds distinguish them from the present case in many particulars.

In this case there was no suggestion or hint at the issue of insanity upon the trial. From appellant's standpoint the case went to the jury upon the clear-cut issue of self-defense, supported by the testimony of appellant, which was clearly and intelligently given, as shown by the statement of facts before this court, and as vouched for by the trial court in his qualification to bill of exception number six, wherein he says:

"The defendant testified as a witness in his own behalf in his trial. (See pp. 60 to 74 S. F.). Neither his appearance, conduct nor testimony indicated to me that he was not sane. He promptly and coherently answered the questions propounded to him by his counsel and the district attorney, and generally behaved about as the average witness. No issue or intimation of insanity was raised in the trial nor at any time before presenting the motion for new trial."

Appellant was not without counsel upon his trial. He was represented by attorneys whom the court says were apparently diligent and able in presenting appellant's defense. The parties whose affidavits were offered in evidence on the issue of insanity, as well as the witnesses who testified orally upon hearing of the motion for new trial, say they never before the trial told the attorneys then representing appellant about the things set out in the affidavits and testified to on the hearing. The attorneys who represented appellant on the trial did not represent him in presenting the motion for new trial; neither by their affidavit nor testimony was the trial court informed that they had no knowledge before the trial from any source of the facts upon which newly discovered evidence as to insanity is predicated, nor negativing that they had information which if pursued with reasonable diligence would have discovered the matters now relied on as newly discovered evidence. As a part of the qualification to bill of exception number six the trial court says that counsel who represented appellant on the trial:

"* * * were apparently diligent and able in presenting the defense of the defendant, and there is nothing to indicate that they would not have carefully considered any suggestion or intimation of insanity of the defendant had it been made to them before or during the trial."

Counsel now representing appellant urges that the foregoing certificate from the trial judge should be regarded by us as supplying the affidavits or testimony of the former attorneys upon the points mentioned. We are not able to so regard it. Bill of exception number six contains the affidavits of the claimed newly discovered witnesses — some of whom were present at the trial — and also contains the oral testimony heard when the motion for new trial was presented. Presumably this court is in possession of all the information which the record furnished the trial judge. It will be noted that he does not certify that no suggestion or intimation of insanity was made to former counsel before or during the trial, but only that if such suggestion or intimation had been made said counsel would have given it "consideration." In a prosecution for murder the two defenses of self-defense and insanity, or of self-defense and alibi may be interposed, yet it is well understood that in practice where the two are urged, the one weakens the other. By way of illustration; in the exercise of their best judgment, counsel might urge the defense of alibi, or self-defense, and omit raising the issue of insanity although having knowledge of facts which would raise it, believing the interest of their client could be better served by not confusing the issues, and yet, the knowledge or information regarding the issue of insanity be given the most careful consideration, but be rejected as not appealing to their judgment as strongly as some other defense. It is impossible for us to know what happened in the present case because counsel who represented appellant on his trial were not called upon to inform the trial court or this court by affidavit or evidence on hearing of the motion what the facts were regarding the matter under consideration. Even in this character of case, under the facts presented by the record, the silence of former counsel as to knowledge or lack of knowledge on the question of insanity must be regarded as a failure to show diligence in respect to that issue; especially is this true where no reason is assigned for a failure to produce the affidavits or evidence of said attorneys.

If there be expressions in some of the opinions in cases already referred to which would lead to the conclusion that where a new trial is sought for claimed newly discovered evidence on the issue of insanity, it is unnecessary to show any diligence, and that the court had no discretion in the matter, such impression should have been corrected by the following language in Skotnick v. State, 43 S.W.2d 602:

"It is the rule that, where the defense is insanity, the requirement of diligence as to newly discovered evidence is not as strict as in other instances, but the determination of thisquestion depends upon the facts of each case. Rich v. State, 115 Tex.Crim. Rep., 28 S.W.2d 802. We think thisrecord shows a want of exercise of any diligence to securetestimony touching insanity. It may be added that we are of the opinion it is clear that the proposed testimony which is alleged to be newly discovered would not likely change the result if a new trial should be granted."

After referring to the eight witnesses who either made affidavits or testified on the hearing of the motion, the court in his qualification to bill of exception number six says:

"* * * the uniform failure of all of said eight witnesses to state to counsel for the defendant any fact concerning defendant's insanity, if any, until after his trial and conviction, having clearly appeared upon the hearing of the said motion for new trial, were considered by the court as materially aiding and determining what weight should be given to their testimony of their opinions of the mentality of the defendant, and such circumstances were considered adversely to said motion; and it further appearing that another trial would very probably result in another conviction of the defendant for murder, the motion was, therefore, overruled."

The court having heard the witnesses who gave oral testimony when the motion was submitted, and having considered the affidavits, reached the conclusion stated in the qualification. Where a new trial is sought upon the ground of newly discovered evidence it is required, among other things, that the trial court be satisfied that upon another trial probably a different result would be reached. The trial court's opinion is persuasive in aiding this court to determine whether there was an abuse of judicial discretion which must be exercised by the trial judge in this character of case the same as in others under similar circumstances.

Believing the case was properly disposed of originally, the motion for rehearing is overruled.

Overruled.