Cernoch v. State , 128 Tex. Crim. 327 ( 1935 )

Appellant renews complaint that the trial court refused to permit him to withdraw his announcement and continue the case for sixty days in order that physicians from the insane asylum at Austin might observe and examine him for the purpose of basing on such observation and examination their opinion as to his sanity. The question came about in the following manner. Shortly after an attorney had been appointed by the court to represent appellant said attorney requested the court to appoint physicians from the State Hospital at Austin to examine appellant. The court declined the request. Before the trial attorneys representing the State did get two of the physicians from said institution to come to Georgetown, where appellant was in jail, and there observe and examine appellant for about an hour. They testified that from such brief examination and observation, in their opinion, appellant was sane; but also stated, that from a medical standpoint, it would take from thirty to sixty days' observation before a satisfactory opinion could be reached regarding appellant's sanity. It was then the request came for the withdrawal of the announcement and the continuance of the case. In declining to appoint the commission, and to permit the continuance of the case, the trial court, we think, was within the discretion vested in him. We have not been referred to any law which would have enabled the court to enforce a request or an order requiring the physicians connected with the State Hospital for the Insane at Austin to come to another county, and there remain long enough to satisfy themselves by observation and examination as to the sanity of one accused of crime. The whole matter is too intangible for this court to say the trial court committed error in his action regarding the matter. When reduced to its last analysis, appellant's proposition amounts to asking this court to hold that in a case where appellant is without means and it is proposed to interpose the defense of insanity the trial court should upon request of appellant or his. attorney appoint a committee of doctors to observe the accused for such time as the physicians may think requisite for them to reach a satisfactory opinion upon the question of his sanity, and that for a failure to make such appointment or for failure to continue a case until such observation could be made, a judgment of conviction should be reversed. We think it would be too speculative and going entirely too far afield for this court to announce that such action by the trial judge was an abuse of discretion which would demand a reversal.

M. B. Colbert's evidence was in substance as follows: Appellant had consulted him in regard to the collection of a debt claimed by appellant to be owing him by Frank Semsek. The latter died and his representatives denied the debt and refused payment. Appellant again went to Colbert and in the course of a conversation made threats of violence towards the Semsek family which he carried out, which resulted in a fine being assessed against him. Resentment because of an effort to collect the fine furnished the motive for the killing. The testimony of Colbert as to the threats of appellant towards the Semseks was objected to as being a privileged communication between attorney and client. The complaint is brought forward in bill of exception number four. We can not agree with appellant's contention. See Underhill's Cr. Ev., 3rd Ed., sec. 292, p. 404. Ott v. State,87 Tex. Crim. 382, 222 S.W. 261; Ormon v. State, 22 Texas App., 604; Ormon v. State, 24 Texas App., 495.

No error is revealed by bill of exception number six, which brings forward complaint that the undertaker was permitted to testify that there were five wounds in Moore's body — Moore having been killed at the same time Lindsey was killed — and that one of the wounds was in Moore's left hand, breaking a bone, and that Moore was left-handed. Nothing in the bill discloses how the proof that Moore was left handed, and one wound was in that hand, could have been harmful to appellant, even if the details complained of were not properly in evidence.

We have again considered all questions which were disposed of in our original opinion, and believe they were correctly decided. We find no error calling for reversal in other bills presenting the matters referred to.

The motion for rehearing is overruled.

Overruled.