1. — Assault to Rape — Insanity — Presumption — Charge of Court.
Upon a trial for assault to rape, where evidence was introduced to show that defendant had been insane since childhood, so as to render him irresponsible for crime, and this condition continued until the time of the alleged offense, the court should have charged that the presumption of insanity continued.
2. — Same — Aggravated Assault — Charge of Court.
Where upon trial for assault to rape, the facts were such that they called for a charge of aggravated assault, the same should have been given.
DAVIDSON, PRESIDING JUDGE.
Appellant was convicted of an assault to rape, the punishment assessed being two years in the penitentiary. He requested the court to charge the jury, in substance, that if it has been shown by a preponderance of the evidence that the defendant was insane at any time before the commission of the crime, charged in the indictment, then such insanity is presumed to continue, and the burden of proof is upon the State to show that the defendant afterwards became sane, and while in that condition committed the crime charged in the indictment. Without commenting upon whether this charge was asked in the language in which it should have been given, the matter called to the attention of the court by the charge was, we think, necessary to be given in this case. A number of witnesses were introduced to show that appellant had been insane, sufficiently so to show him irresponsible for crime since his childhood, and this state of mind, under the testimony for the defense, continued to the time of the act charged against him. In Sims case it was said: "The rule, we think, is correctly stated that where insanity is admitted or proved to exist, it is presumed to continue, but this presumption as we understand it, only arises where insanity is continuing and permanent. See Sims v. State, 17 Texas Ct. Rep., 962, and 22 Cyc., p. 1116. We think the rule is correctly stated in the Sims case so far as it applied to that case. We were not there laying down the rule for all phases of that question as it might be presented, but the issue was presented in this case as in the Sims case, but with much more cogent testimony, and the facts here, as under the Sims case, come within the rule laid down in the Sims case. See also Hunt v. State, 33 Tex.Crim. Rep..
It is contended also that the court should have charged in regard to aggravated assault. We are of opinion that under the facts adduced on the trial, the court should have given a charge with reference to this question. We deem it unnecessary to review the testimony in regard to this phase of the case.
The questions with reference to newly discovered testimony will not be reviewed. Upon another trial these witnesses can be obtained and the testimony used.
For the errors discussed the judgment is reversed and the cause is remanded. Reversed and remanded.