McCann v. State

In paragraph 10 of the court's charge on insanity, after instructing generally on the subject, is found the following application of the law: "Therefore, if you believe from the evidence, beyond a reasonable doubt, that the defendant did kill Lillian Davis, by shooting her with a gun as charged in the indictment, but if you further believe from a preponderance of the evidence that at the very time he committed the act, the defendant's mind was in an impaired and unsound state to such a degree that for the time being it overwhelmed the reason, conscience and judgment, and that the defendant in killing said Lillian Davis, acted from an uncontrollable and irresistible impulse produced by such impaired and unsound condition of his mind that deprived him of a knowledge of right and wrong, as to the killing, you will find him not guilty, * * *"

Appellant objected to such instruction on the ground that it placed a greater burden on appellant than the law required. From Texas Jurisprudence, Vol. 12, p. 292, Sec. 54, we quote: "The doctrine of irresistible impulse is not recognized in Texas. A person who has an irresistible impulse to commit a crime is insane if he does not know the nature and quality of the act, but is sane if he does know the nature and quality of the act and does know right from wrong and knows the act to be wrong."

The text is supported by, and practically copied from Cannon v. State, 41 Tex.Crim. Rep.; Kirby v. State,68 Tex. Crim. 63. Just what did the instruction given mean, other than to advise the jury that if appellant had shown them by a preponderance of the evidence that in killing deceased he acted upon an irresistible impulse resulting from a mind impaired to such an extent that he did not know right from wrong as to such killing, he would not be guilty. While we see no necessity for complicating a charge on insanity with the question of "irresistible impulse," and think under the consistent holdings of our court it should be omitted, yet such an instruction is usually regarded as more favorable to accused than the ordinary and well approved charge. See Kirby v. State (supra), p. 74. If the manner in which paragraph ten of the instruction is worded, standing alone, might be subject to some criticism, yet when taken in connection with the very next paragraph — number eleven of the instructions — there is no way in which the jury may have been misled to appellant's hurt. It reads: "* * * if his mind at the time of such killing, if any, was in such diseased and unsound condition that for the time being his reason, conscience and judgment were overwhelmed to such an extent that he did not know such act was wrong and criminal, and would subject him to punishment, or that there was thereby created in the mind of the defendant an uncontrollable and irresistible impulse to kill the deceased, which, because of such unsound condition of his mind, he had not sufficient reason, judgment and will power to resist, then it will be your duty to acquit the defendant, * * *"

The latter part of the last quoted charge is certainly more than appellant was entitled to under the law, and is free from the criticism of the burden complained of as to paragraph ten.

On account of the grave penalty inflicted we have again carefully examined the bills presenting the questions which were discussed in our original opinion. Believing they were properly disposed of we regard a further discussion not called for. Counsel for appellant who represented him under appointment of the court are entitled to commendation for the very earnest and able manner in which they have performed their duty in behalf of an unfortunate client, the facts of whose case were not of their making, and whose act in killing deceased seem prompted by jealousy, and without excuse or extenuation.

The motion for rehearing is overruled.

Overruled.

ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.