Young v. State , 120 Tex. Crim. 489 ( 1931 )

MORROW, Presiding Judge.

— The offense is murder; penalty assessed at confinement in the penitentiary for a period of fifty years.

The evidence is such as to show that Johnnie W. Bradshaw was murdered, and that Homer Edwards and the appellant were present at the time the offense was committed. Appellant claims that Edwards committed the offense and that he (appellant) was merely present and took no part in it. The homicide occurred on April 9, 1930. The appellant had twice been adjudged a lunatic, first in February, 1929, and again in January, 1930. Judgments, regular on their face, showing that the appellant was insane were introduced in evidence. Some ten days before the homicide, the appellant and Edwards, who was likewise an inmate of the insane asylum, had escaped therefrom.

The court instructed the jury on the defense of insanity. Paragraph 10 of the charge read as follows: “The judgments of the County Court in Bexar County, Texas, which have been introduced in evidence before you, adjudging that the defendant was insane on the 26th day of February, 1929, and also on the 8th day of January, 1930, established the fact that he was insane on the 8th day of January, 1930, and raise the presumption that he was insane at the time Johnnie W. Bradshaw was killed, but whether he was sane or insane at the very time of such killing is a question which it is your exclusive province to determine from all the facts and circumstances in evidence before you.”

Under the facts the jury should have been instructed in substance that by reason of the judgments of insanity, the presumption existed that the appellant was insane at the time the offense was alleged to have been committed, and that the burden was upon the state to prove from the evidence, beyond a reasonable doubt, that at the time the deceased was killed the appellant was sane, and unless the state did so prove the jury could not convict the accused of murder. In article 34, P. C., 1925, it is said: “No act done in a state of insanity can be punished as an offense.”.

That such is the law of this state has been declared many times. See Witty v. State, 69 Texas Crim. Rep., 125, 153 S. W.; 1146; Yantis v. State, 95 Texas Crim. Rep., 541, 255 S. W., 180; Davidson v. State, 109 Texas Crim. Rep., 255, 4 S. W. (2d) 74, and precedents there cited.

In the succeeding paragraph of its charge the court instructed the jury on insanity, using the following language: “Ordinarily every person is presumed to be sane until the contrary is shown by proof, but in this case the defendant is presumed to have been insane at the time of the killing, and, therefore, not responsible for any act that he may have committed, until the contrary is shown by evidence beyond a reasonable doubt. So, even though you should find and be satisfied from the evidence under the charges hereinbefore given you that the defendant committed the act charged in the indictment, either alone or as a principal with one, Homer Edwards, still - you cannot convict the defendant unless you further find and believe from the evidence beyond a reasonable doubt that the defendant was sane at the time of the killing.”

The part of the charge last quoted above manifests the intention of the learned trial judge to give a fair charge on,the law of insanity. It is believed, however, that when paragraphs 10 and 11 are considered together, they are calculated to. leave the jury in doubt as to the burden of proof. The appellant had been adjudged insane and placed in a lunatic asylum. He had not been discharged. The judgments of insanity had not been set aside. He had recently- escaped from the lunatic asylum. The evidence against him is wholly circumstantial, and the facts are such as to require for his protection that the jury be given a charge in which there could be no mistake that they would understand that the burden of proving that the appellant was sane at the time the criminal act is charged to have taken place is upon the state, and unless the burden was discharged, there could be no conviction.

The sufficiency of the evidence to support the verdict is very earnestly challenged by the appellant’s counsel. A reversal of the case upon other grounds renders it improper for us to. express any opinion with reference to the sufficiency of the evidence.

For the reasons stated above, the judgment is reversed and the cause remanded.

Reversed and remanded.