Thompson v. State

CHRISTIAN, Judge.

The offense is murder; the punishment, death.

The opinion on the former appeal will be found in 63 South Western, Second Series, at page 849.

We deem it unnecessary to set out the evidence, as the testimony adduced upon the present trial was substantially the same as that shown in the opinion on the former appeal.

Appellant entered a plea of guilty. During the progress of the trial he introduced witnesses who gave testimony deemed by the trial court to raise the issue of insanity at the time of the commission of the offense. After defining insanity the trial court instructed the jury to acquit appellant if they believed he was insane at the time he committed the offense. In addition to the foregoing charge, the court instructed the jury to convict appellant upon his plea of guilty and assess his punishment at death or confinement in the penitentiary for life or for any term of years not less than two.

Appellant insists that the court should have submitted the case on a plea of not guilty. In Yantis v. State, 255 S. W., 180, on motion for rehearing, this court, speaking through Judge Lattimore, used language as follows: “It was proper for the learned trial judge, when appellant entered a plea of guilty, if evidence be introduced tending to show him insane at the time of the commission of the offense, to have the plea of guilty withdrawn and a plea of not guilty entered, preferably by appellant or his counsel; but, if they would not, then by the court for appellant.”

In Taylor v. State, 227 S. W. 679, this court said that in no case can the trial court accept a plea of guilty and at the same time accept a plea that the accused was insane at the time the offense was committed. See also Harris v. State, 172 S. W., 975; Johnson v. State, 48 S. W. (2d) 274. Manifestly, the charge of the court on insanity is inconsistent with that part of the charge instructing the jury that appellant had entered a plea of guilty, and that he should be convicted.

The judgment is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.