Burgess v. State ( 1915 )

After the original opinion affirming this case had been handed down, in connection with his motion for rehearing, appellant also by certiorari had brought up proper copies of some papers which had been omitted in the original transcript. All these, in connection with the whole record, have been duly considered by us.

Nothing new, so far as the merits of this case are concerned, are urged on this rehearing. He merely presents and urges some of the same things that were presented on the submission of the case originally.

Deceased's mother, Mrs. W.T. Rigsby, and appellant were the only eyewitnesses to the murder. He did not testify. Mrs. Rigsby did. He sought in his cross-examination of her to impeach her by showing that she was addicted to the use of morphine and that, therefore, her testimony against him was unreliable and perhaps not true, especially as to the position the deceased was in when appellant shot her the three times. As stated in the original opinion, the State's witnesses, the doctors who testified to the wounds in the body of the deceased, differed as to the exit and entrance of the bullet holes in her body. In this connection it was proper, if not necessary, that the garments worn by the deceased at the time appellant killed her, be exhibited to determine therefrom whether some of the wounds were the exits or entrances of the bullets in her body. And in this respect no error was shown by the exhibition of said garments. As stated in the original opinion, the record shows that no improper use or argument was made of these clothes. They were simply exhibited so that the witnesses could point out, as they did, where the balls had entered the body of the deceased, as shown by the garments themselves. This is so well established as the law in such matters that we deem it unnecessary to cite or discuss the authorities.

Appellant, again, by his able attorneys, contends that the court erred in refusing to give his special charge to the effect that, if the jury "find from the evidence that the defendant at the time of committing the offense had become insane from the long continued and recent use of intoxicating liquors, or from some other cause," to acquit him; and that it was reversible error not to give it. He also contends, in effect, that the evidence was sufficient to show that at the time he killed deceased he was insane, caused by the long continued use of intoxicating liquors to such an extent as to at that time show that he was suffering from delirium tremens. And, further, that, because of his then said insanity, he could not be held to diligence in securing witnesses to show his then insanity. His attorneys make a plausible argument along this line, but it is wholly fallacious in that it assumes facts for its basis, which the record does not bear out. The mere fact that one accused of crime pleads insanity as a defense is no evidence that he was insane at the time of the commission of the act. The pleading is the mere basis for the introduction of evidence and not evidence.

Because of appellant's insistence and the fact that the death penalty in this case was inflicted, we have again read and studied the evidence and record in this case carefully, and we are more confirmed than ever that no reversible error was committed on the trial of this case that would authorize or justify this court in any event to reverse this case. Upon a further study of the evidence we are satisfied that there is no testimony that appellant was insane from delirium tremens, or and other cause, at the time he killed the deceased, but, on the contrary, that he was then sane. There is no evidence in this regard whatever that appellant ever at any time or at any place had delirium tremens. At most, the evidence would tend to show that for a number of years prior to the killing appellant was a drinking man and occasionally in previous years got on sprees, but the evidence from his own witnesses shows that he had quit drinking for some time before this offense was committed, and there is no evidence whatever to show that at or about the time of this killing was he either drunk or drinking. The evidence as a whole, without doubt, and without contradiction, shows that for at least six years prior to the killing appellant had lived in, and the territory around Beaumont. That his wife's parents for about four years before the killing had lived in Beaumont, and that most of that time their daughter had been with them in their home, separated from appellant repeatedly because of his cruel treatment of her. There is no evidence that indicates that he was not competent to attend to his business day in and day out for all these years. On the contrary, as a matter of fact, it shows that he was in the active pursuit of his business during all these years.

"Every person is presumed to be of sane mind until the contrary is shown. Carter v. State, 12 Tex. 500, 62 Am. Dec., 539; Fisher v. State, 30 Texas Crim. App., 502, 18 S.W. Rep., 90 (following Webb v. State, 5 Texas Crim. App., 596; s.c., 9 Texas Crim. App., 490); King v. State, 9 Texas Crim. App., 515; Massengale v. State, 24 Texas Crim. App., 181, 6 S.W. Rep., 35; Guerrero v. State (Crim. App.), 171 S.W. Rep., 731." Note 1, art. 40, Vernon's Ann. P.C.

"Accused has the burden of proving insanity by a preponderance of evidence. Roberts v. State, 67 Tex.Crim. Rep., 150 S.W. Rep., 627; Carter v. State, 12 Tex. 500, 62 Am. Dec., 539; Leache v. State, 22 Texas Crim. App., 279, 3 S.W. Rep., 539, 58 Am. Rep., 638; Hurst v. State, 40 Tex.Crim. Rep., 46 S.W. Rep., 635, 50 S.W. Rep., 719; Boren v. State, 32 Tex. Crim. 637, 25 S.W. Rep., 775; Webb v. State, 5 Texas Crim. App., 596; s.c., 9 Texas Crim. App., 490; King v. State, id., 515; Johnson v. State, 10 Texas Crim. App., 571; Jones v. State, 13 Texas Crim. App., 1; King v. State, id., 277; Mendiola v. State, 18 Texas Crim. App., 462; Smith v. State, 19 Texas Crim. App., 95; Fisher v. State, 30 Texas Crim. App., 502, 18 S.W. Rep., 90; Lovegrove v. State, 31 Texas Crim. App., 491, 21 S.W. Rep., 191; Stanfield v. State, 50 Tex.Crim. Rep., 94 S.W. Rep., 1057; McCullogh v. State, 50 Tex.Crim. Rep., 94 S.W. Rep., 1056; Fults v. State, 50 Tex.Crim. Rep., 98 S.W. Rep., 1057; Kirby v. State (Crim. App.), 150 S.W. Rep., 455; Welch v. State, 71 Tex.Crim. Rep., 157 S.W. Rep., 946; Douglas v. State,73 Tex. Crim. 385, 165 S.W. Rep., 933; Guerrero v. State (Crim. App.), 171 S.W. Rep., 731." Note 2, art. 40, Vernon's Ann. P.C.

Appellant killed his wife early in the morning. He was very soon thereafter arrested and has been confined in jail continuously ever since. Some five doctors living in Beaumont testified in the case. He did not attempt to prove by any or either of them, and none of them testified, that he was insane at or about the time he killed his wife. At most, by one of them, Dr. Johnson, he attempted to prove that at a time months before the killing he acted queer towards Dr. Johnson, and that Dr. Johnson at the time was afraid of him because, as Dr. Johnson said, appellant was then drinking and had seen his wife go into Dr. Johnson's office and must have seen her go out, and, because of some jealousy of her, he at once went into Dr. Johnson's office and so acted because of his jealousy and being drinking at the time as to cause Dr. Johnson to then think he was "not exactly normal at the time." There can be no doubt from the evidence that he was in Beaumont time and again and frequently for some time prior to the killing. He was doubtless known by a large number of people living there at the time. The officials who had him in charge and who arrested him immediately after the act, and none of them, testified on the subject. No expert at any time examined him for the purpose of ascertaining whether he was sane or insane, doubtless because he knew he was not insane, and his attorneys must have known it.

Under the very terms of our statute and all the decisions thereunder (art. 41, Vernon's Ann. P.C., and decisions noted thereunder) neither intoxication nor temporary insanity produced by the voluntary recent use of ardent spirits shall constitute any excuse for the commission of crime, nor shall intoxication mitigate the crime or the penalty of crime. In this case there was no evidence to show, and none tending to show, that appellant was drunk, or even drinking, at the time he killed his wife, nor at any time recently theretofore.

The court gave a full and proper charge in appellant's favor submitting the question of his insanity to the jury for a finding. His charge was in accordance with the many decisions of this court. A large number of them are collated under article 40, Vernon's Ann. P.C. It is unnecessary to give them in this opinion. Doubtless, the court thought it better to submit the question of insanity to the jury under an abundance of precaution, even though the evidence did not call for such a charge. It was in his behalf and not against him. Christian v. State, 71 Tex.Crim. Rep., and authorities there cited.

We think it unnecessary to further discuss any question in this case. From a full and thorough consideration of the record, the law applicable to the question, appellant's brief and authorities cited by him, we are fully satisfied that no reversible error was committed in the trial of this cause, and under the law we can not do otherwise than overrule his motion for a rehearing, which is accordingly ordered.

Overruled.