Taylor v. State

This case was affirmed in an original opinion by PRENDERGAST, Judge, handed down in February, 1918, and is before the court at this time upon appellant's motion for rehearing, setting up various grounds which will be noticed.

It is contended that the court erred in not passing on and reversing the case in its original opinion upon the ground that there was misconduct of the jury in discussing appellant's failure to testify. The matter is set forth in the seventh ground of appellant's motion for new trial in which the affidavit of one of the jurors appears and is made a part of the statement. Reference to said affidavit discloses that it is alleged therein that while in their retirement several jurors referred to appellant's failure to testify, and questions were asked as to why he did not do so. Appellant pleaded guilty, thereby admitting all of the facts necessary to the conclusion of his guilt. It is not shown what was said in the jury room or that any remark or statement was made which could lead this court to presume that the failure to testify was taken by the jury as any circumstances against appellant. The juror making the affidavit said he considered the appellant insane. There was no error in overruling this ground of said motion. Coffman v. State, 73 Tex. Crim. 295, 165 S.W. Rep., 939; Howard v. State, 76 Tex. Crim. 297, 174 S.W. Rep., 607; Rhodes v. State, 69 Tex. Crim. 45, 153 S.W. Rep., 128; Cooper v. State, 72 Tex. Crim. 266.

It is also insisted that the former opinion of this Court was erroneous in holding that the trial court properly overruled appellant's application for a continuance. Our statutes, Article 566 C.C.P., require that in all felony cases upon plea of guilty, if the punishment is not absolutely fixed and beyond the discretion of a jury to graduate, a jury shall be impanelled "Toassess the punishment, and evidence shall be submitted to enablethem to decide thereupon." The purpose of the absent testimony as set forth in said application, not being to affect the punishment, but being admissible, if at all, solely on the issue of lack of guilt, the appellant is in no position to complain of the overruling of the application for a continuance. Also, this was a second application, and in addition to setting out the facts to which the absent witness would testify, if present, same must appear to be both admissible and material. It must further be shown that such testimony cannot be procured from any other source known to the appellant. Following is the testimony expected from said absent witness, as set out in the application: "That she is a sister of the defendant, R.L. Taylor; that she was reared with him, and has had occasion to observe the mental condition of the defendant from his childhood up, and that up to about something like twelve months ago that the defendant's mind appeared to be good, in other words he appeared to be sane, that since said time she has had frequent occasions to observe the defendant and will testify that she had occasion to observe him only a day or two before the commission of the offense charged in the indictment, and that he appeared at that time to be insane, and his mental condition in an unusual disturbed condition, and that said condition had existed for several months previous to that occasion, and that on said occasion defendant was at her house and visited her home in Nolan County, Texas, at which time she observed the condition of the mind of the defendant at hereinbefore stated."

For the purpose of this opinion we notice only that part of the statement relating to appellant's condition for some months prior to the alleged killing. It is stated in said application that the absent witness had occasion to observe appellant a day or two before the commission of the offense and that "he appeared at that time to be insane, and his mental condition in an unusual disturbed condition, and that said condition had existed for several months previous to that occasion," said occasion being a visit made by appellant to the home of the witness in Nolan County, Texas. No facts are set out in the application to which the absent witness, if present, would testify. The statement that she would testify, "that he appeared to be insane and his mental condition disturbed," is but a conclusion. The absent witness was appellant's sister and was non-expert. As said by Judge HENDERSON in the Davis case, 96 S.W. Rep., 73: "These were non-expert witnesses. They were not authorized to give an opinion until they stated the facts upon which they predicated an opinion, and such facts should have been stated in this application;" and this court held in that case that the application was properly overruled.

The same ruling is adhered to in all the decisions. Shirley v. State, 37 Tex.Crim. Rep.; De Luconay v. State, 68 S.W. Rep., 793; Harrison v. State, 44 Tex.Crim. Rep.; 69 S.W. Rep., 500; Wilson v. State, 45 Tex.Crim. Rep., 73 S.W. Rep., 964. Again, could the absent testimony have been obtained from any other source? Said testimony was to the effect that said sister saw appellant a day or two before the shooting, and that said condition had existed for several months. The shooting was on March 26th. Hiram Walker was a witness, and was appellant's brother-in-law, living with his wife who was appellant's sister, in the county where the trial was had. He swore that appellant was staying at his home when the offense was committed. No question was asked this witness as to appellant's insanity or mental condition, either at the time of the commission of the offense or prior thereto. Mrs. Walker, appellant's sister, and wife of said witness, was not called by the appellant to the witness stand. These relatives were with appellant after the alleged visit of appellant to Mrs. Goff's, the absent sister and up to the time he started to the place where he shot his wife. Thell Browning, another brother-in-law of appellant, was a witness on the trial and swore that for four or five days before appellant came to Jones County, where the shooting occurred two or three days later, appellant had been staying at witness Browning's house in Scurry County. This witness was not asked as to any peculiar actions of appellant nor his opinion of appellant's mental condition. This witness and many other people, apparently friendly to appellant and who knew him well and had been with him during the days and weeks preceding the shooting, all testified, and none of them were asked a question about appellant's mental condition. If his mind was unbalanced or if his actions were peculiar it would reasonably appear that some of these witnesses would have known such facts.

The trial court's action in overruling such application would also be sustained under that other well settled rule of this court that a motion for new trial upon the ground of error in refusing a continuance will be properly overruled if it sufficiently appear from the other testimony in the case that it is unlikely that the witness would have testified as claimed or that such testimony would not have probably been true.

Appellant excepted to the court's charge because it did not submit the question of insanity to the jury, and asked two special charges; one a peremptory instruction for acquittal upon the ground that the State had not proved defendant sane when the crime was committed; and the other instructing acquittal unless the jury believed beyond a reasonable doubt that defendant was sane when the offense was committed, and that the burden of proof was on the State to prove the defendant's sanity at such time. Both charges were refused. Appellant's exceptions Nos. 3, 4 and 5 complained of the court's refusal to submit these two special charges, and the issue of insanity to the jury. There was not a particle of evidence before the trial court that appellant was insane when the crime was committed and it is difficult, in view of this fact, to see just why the trial court should have submitted the issue of insanity; and we can see no reason at all why he should have given any instruction to acquit because the State had not proven appellant sane when the crime was committed. Inquiry as to the insanity of one accused of crime may be made in a proper case and manner at any time, but our statutes only make it necessary that in a plea of guilty it must plainly appear to the court that the accused is sane and not influenced, etc. etc. See article 565 C.C.P. The question of sanity, when such plea of guilty is offered, is for the court and relates solely to the mental condition of the accused when making his plea and not to such condition when the offense was committed. The act of pleading guilty to the commission of a crime, a felony, which involves disgrace and heavy penalties, is so against his interest that it pleased the merciful framers of our laws to assume that a man would not do so in his right mind, and when free from hostile influences. So that the inquiry in such case is confined to the time of the plea and is only for the court. Hence it has always been held necessary that the judgment in such case should affirmatively show that the trial court had passed on this question and found the accused sane, as a prerequisite to accepting such plea. Sanders v. State, 18 Texas Crim. App., 372; Saunders v. State, 10 Texas Crim. App., 336; Wallace v. State,10 Tex. Crim. 407; Frosh v. State, 11 Texas Crim. App., 280; Harris v. State, 17 Texas Crim. App., 559; Burton v. State,33 Tex. Crim. 138; Coleman v. State, 35 Tex. Crim. 404. Judge WHITE in the Burton case, supra, says that sanity "was necessarily an issue for the court in such plea." In the Coleman case, supra, Judge DAVIDSON says, referring to the question of insanity in connection with a plea of guilty: "In our opinion, however, this is a matter which must be presented to the court, and the court must make its finding thereon, and this must be entered of record in connection with the plea of guilty. These prerequisites to the validity of the plea, and the acceptance thereof by the court, are indispensable, and must be made manifest of record."

The judgment of the trial court in the instant case is in exact accord with these decisions and what we conceive to be the law. Same is as follows:

"The State of Texas v. R.L. Taylor.

Charge assault with intent to murder. No. 1613. Date June 20th day of June, 1917. Date, 20th day of June, 1917.

"This day this cause was called for trial, and the State appeared by her district attorney, and the defendant R.L. Taylor appeared in person, his counsel also being present *(and the said defendant having made application in due form for suspension of the sentence on his conviction herein), and having been arraigned in open court, both parties announced ready for trial, and the defendant, R.L. Taylor, in open court, in person, pleaded guilty to the charge contained in the indictment, thereupon the said defendant was admonished by the court of the consequences of said plea, and the said defendant persisted in pleading guilty; and it plainly appearing to the court that the said defendant is sane, and that he is uninfluenced in making said plea by any consideration of fear, or by any persuasion, or delusive hope of pardon prompting him to confess his guilt, the said plea of guilty is by the court received and here now entered of record upon the minutes of the court as the plea herein of said defendant."

Which portion of the judgment is followed by the usual recitals as to the impanelling of the jury, hearing of the evidence, etc. etc.

It being beyond question that there was no evidence before the trial court of insanity at the time the offense was committed, and that the judgment as quoted is in accord with the law and recites the sanity of appellant at the time of making the said plea, it follows there was no error in the refusal of the court to give the special charges and in refusing to submit the issue of insanity because there was a written plea of insanity on file at the time of trial setting up such issue. An inspection of the record shows that a written plea signed by appellant's attorneys was filed, which is as follows: "Now comes the defendant, R.L. Taylor, by his attorneys, and files in this behalf his plea of guilty herein, and in this connection further pleads that at the time of the commission of said offense the said R.L. Taylor was insane and was not mentally capable of knowing the nature and quality of the act committed by him." We observe that every plea available to a defendant under our statutes and practice is set out in Articles 569 and 572 C.C.P., and we nowhere find place or authority for a written plea of guilty signed only by the attorneys for defendant. It is provided by Article 581 C.C.P. as follows: "A plea of guilty in a felony case must be made in open court, and by the defendant in person." We observe here that the judgment supra recites that this statute was followed. If the written plea mentioned was intended to call the trial court's attention to the fact that it was his duty to assure himself of the sanity of appellant at the time of making his plea, its purpose was served, and that fact determined, as appears from said judgment, and there is no room for further complaint on this ground. However, it appears from the reading of such plea that such was not its purpose, as it states that appellant was insane at the time of the commission of the offense, so that it is clear that in no way did appellant claim to be insane at the time of making his plea, and we hold 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. In appellant's motion for new trial he insists that the trial court erred in receiving such plea of guilty when there was also presented a plea of insanity. Upon this question there arose a question of fact, the district attorney having filed a statutory traverse of the matters contained in said motion for new trial, specifically denying that said written plea was brought to the attention of the court or jury or himself as the representative of the State, and further setting up that appellant's plea was in person, in open court, etc. Article 841, Vernon's C.C.P. authorizes such traverse of the grounds of a motion for new trial. See also Wilson's Crim. Forms, p. 960; Pickett v. State,56 Tex. Crim. 68; Dougherty v. State, 59 Tex.Crim. Rep.. In such case the court may hear evidence for or against and enter his judgment and in the absence of a showing that such judgment was not supported, this court will assume the correctness of the lower court's judgment and uphold his action. Upon the hearing of said motion and traverse in the instant case the trial court overruled the motion, and nothing appearing from the record to show error in the court's action, we are compelled to uphold same.

It is urgently insisted that the case of Harris v. State,76 Tex. Crim. 126, 172 S.W. Rep., 975 is opposed to the holding herein announced. With certain statements in the Harris case we reluctantly disagree and regret that the same may have led to some confusion, but with the spirit of that decision we are in hearty accord. It is undisputed that much evidence was introduced in said case showing insanity, even though there was a plea of guilty, and this court held that under our statute requiring facts to be produced upon a plea of guilty, that if the issue of insanity be suggested in such case, evidence on this issue should go in with the other facts of the case to be decided by the jury. This is fundamentally unsound and would necessarily and inevitably cause much confusion in practice. It is unsound in that it would lead to the engrafting on our system of trials, of a practice in which both pleas of guilty and not guilty would be permitted by the court and passed upon by the jury at one and the same time, for a plea of insanity is as surely a plea of not guilty as can be; the saying that one was insane when he acted being the legal equivalent to saying he was not criminally guilty. This court refused to let the verdict stand in the Harris case on the ground that the evidence introduced showed Harris to be insane when the crime was committed. We are of opinion that in such case the correct procedure should have been that it would at once become the duty of the trial court, upon a hearing under the plea of guilty, if the evidence introduced showed insanity, to have the plea of guilty withdrawn and a plea of not guilty entered upon behalf of the accused and the issues fully and legally determined thereafter, and our opinion is that the Harris case should have been reversed and remanded for the failure of the trial court to so proceed. We are also of opinion that if the evidence so introduced to enable the jury to fix the punishment, pertinently suggested insanity at the time of the commission of the offense, this court would reverse if opportunity was refused appellant to withdraw his plea of guilty and have all the issues passed upon by the jury. It was correctly held in the Alexander case, 69 Tex.Crim. Rep., 152 S.W. Rep., 436, that at any time before the retirement of the jury a plea of guilty might be withdrawn and the case tried on a plea of not guilty, and such course should be followed when the evidence offered to enable the jury to fix the punishment shows a state of case under which, if true, the accused would not be guilty of any crime.

The impartial attitude of the court and the integrity of our practice would forbid the conviction of one not legally guilty or responsible and if the evidence adduced on a plea of guilty raised the issue of the present insanity of an accused the trial should be halted until the court could legally have that issue settled; and likewise and for the same beneficent reason, if such evidence presented the issue of his insanity at the time of the alleged commission of the crime, the case should be allowed to proceed no further until a plea of not guilty be entered and the plea of guilty withdrawn so that the issue of insanity could be placed before the jury in accordance with law, with proper practice and the holdings of this court. In so far as the Harris case is in conflict with these views we cannot follow it, though agreeing to the correctness of the reversal therein. In the instant case there was no evidence adduced on the trial showing insanity, either at the time of trial or when the offense was committed, consequently there was no possible invocation of the doctrine of the Harris case, if correct.

No error appearing in the former opinion of this court the motion for rehearing is overruled.

Overruled.