1. Indictment — Name of Defendant — Idem Sonans. — In an indictment for murder, where the christian name of the accused was stated to be "Isreal," and defendant made a motion to quash the indictment upon the ground that his name being "Israel," and not "Isreal," he had never been indicted, and therefore could not be prosecuted under the same, held, that "Isreal" and "Israel" are idem sonans, and that bad spelling will not vitiate an indictment.
2. Same — Quære — Change of Indictment where Defendant Suggests a Different Name. — See quære suggested by the court as to the validity of an indictment which has been changed under the provisions of article 513, Code of Criminal Procedure, with reference to the name of the accused.
3. Amendment of Date of Filing the Indictment. — Where the minutes of the court showed that the indictment was presented in court on the 12th day of June, 1891, but the clerk had endorsed the same as filed 12th day of June, 1897, held, that the court properly permitted the clerk to change the file mark from "1897" to "1891;" and further, that the failure of the clerk even to file the indictment at all would be no ground for its quashal.
4. Murder — Charge on Murder of the Second Degree, where Evidence Shows only Murder of First Degree — Insanity. — On a trial for murder, where the evidence discloses a murder of the first degree or no crime on account of the insanity of the accused, held, that a charge upon murder of the second degree, if not demanded by article 607, Penal Code, was nevertheless clearly beneficial to defendant, and he could not be heard to complain thereof.
5. Same — Charge Wrong but Beneficial to Defendant — Practice on Appeal. — If it affirmatively appears that a charge was beneficial to the accused, the judgment will not be reversed on appeal, though it may be wrong. On the other hand, if there be doubts as to any injury or not, the judgment will be reversed. If it was calculated to mislead the jury, etc., the judgment will be reversed.
6. Charge — Insanity. — See opinion for criticism of Presiding Judge HURT upon a portion of the charge of the court upon insanity.
7. Same — Requested Instructions — Delusions. — Where the charge of the court is full and explicit on the subject of insanity, it is not error to refuse a special instruction upon the subject of insane delusions. If a person is deluded, he is insane; if insane, he is deluded.
8. Insanity — Burden of Proof. — Where the defense is insanity, the burden is on the defendant to prove his insanity by a preponderance of evidence.
9. Same — Conflicting Evidence — Practice on Appeal. —
HURT, PRESIDING JUDGE.
The name of the accused as stated in the indictment is "Isreal," not "Israel," Boren — Israel Boren being his true name. This being the case, counsel for appellant moved to quash the indictment. The motion to quash was overruled. The objections of counsel were, that the accused must be indicted before he can be tried for a felony; that the name of appellant being in fact Israel Boren, he could not be tried upon an indictment charging Isreal Boren with the murder; that such an indictment is not a charge against him; and that therefore he has never been indicted by a grand jury for the murder of Sid Nance.
We answer, that Isreal and Israel are of the same sound; that bad spelling will not vitiate an indictment; and that therefore it appears from the indictment that the grand jury had indicted the appellant for the murder of Sid Nance.
Whether article 513 of the Code of Criminal Procedure is an infraction of the guarantees secured to the citizen in criminal prosecutions by section 10, article 1, of the Constitution, is not raised in this case. Under a certain state of case, the question attempted to be raised might be quite serious. Suppose that the indictment alleged that John Smith committed the murder, and suppose that William Jones was arraigned and called upon to plead to the same. He suggests to the court that his name is not John Smith, but William Jones, and objects to being required to plead to and be tried upon such an indictment; and that in fact his name is William Jones, and not John Smith, and that he proposed to prove by some of the grand jurors that he was not intended to be indicted, Should the court hear the proposed evidence? Suppose the proof made shows that the accused is not the man intended to be indicted; must the court require him to plead, the indictment in the meantime being amended, under provisions of article 513 Code of Criminal Procedure, so as to make it charge William Jones with the crime? If the accused must plead to and be tried upon such an indictment under such a state of case, would he be tried upon an accusation of a grand jury; or would he not be tried upon the accusation of the court or its officers? These observations by the way. This question is not before us; and we have enough nice questions presented in a legitimate way, without speculating as to those not raised.
The minutes of the court read: "Tuesday, June 12, 1891. Now on this day came into open court the grand jury of Collin County, and present and deliver to the judge presiding the following bills of indictment, duly signed by the foreman as true bills, to-wit, number 4100, The State of Texas v. Isreal Boren, murder." With these minutes before the court, the clerk was permitted to change the date of filing the indictment from the 12th day of June, "1897," to 1891, so as to correspond with the correct date. In this there was no error. Suppose, the minutes showing an indictment had been properly presented by the grand jury, the clerk should, intentionally or otherwise, neglect to file the same, would this defeat the action of the grand jury? Would it be ground upon which to quash the indictment? Certainly it would not.
Counsel for the appellant object to the charge of the court with reference to murder of the second degree; first, because the court instructed upon murder of the second degree, contending that there was no evidence presenting this degree; that if the homicide was culpable, it was murder of the first degree and nothing less; second, counsel object to this expression in the charge upon express malice, "but from every unlawful killing the law implies malice."
We agree with counsel, that this homicide was murder of the first degree, or no offense whatever. If appellant was not insane, this was a cold-blooded murder; if he was, the homicide was excusable. The issue was made so by all the evidence — sanity or insanity. On such a state of case a charge upon murder of the second degree was (if not demanded by article 607 of the Penal Code) clearly beneficial to appellant; and so was the statement, "that malice is implied from an unlawful killing." This expression, abstractly wrong, authorized the jury to convict of murder of the second degree, and for which appellant, if guilty, should not complain.
We are aware that opinions of this court hold, that if the charge is wrong, and is excepted to at the time, a reversal must follow, whether there be injury or not. Now we desire to state, that if it affirmatively appears that the charge was beneficial to the accused, the judgment should not be reversed, though it may be wrong. On the other hand, if there be any doubt as to any injury or not, it should. If it was calculated to mislead the jury, it should.
We have with the greatest scrutiny repeatedly read the charge of the court on the subject of insanity; read it in the light of the objections made to it. But we must say, that the objections urged are not well taken when tested by the opinions of this court. The writer has many objections which could be urged to the principles contained therein. But my views on this subject have not prevailed, and I will urge them no longer, though unshaken in the belief of their soundness.
One extract from the charge will suffice to illustrate the patent inconsistency of the propositions of law contained therein. The learned judge charged the jury: "If you have found that the evidence in this case establishes beyond a reasonable doubt that the defendant killed Sid Nance as charged, under circumstances which would make him guilty of murder in the first or in the second degree, then in order for the defendant to be exempted from punishment for the crime he committed, if any, upon the ground of his insanity, it devolves upon him, the defendant, to establish by a preponderance of the evidence that at the time the crime was committed he was insane to that degree that will exempt him from punishment as explained in the following charges."
Now, if appellant in killing Sid Nance was guilty of murder of the first or second degree, no degree of insanity could excuse him. If he, with his express or implied malice, killed Nance, he may have been when he killed him a drivelling idiot, yet he would have been guilty of murder, and his idiocy would not and should not excuse the murder. But how it is possible for an insane man to kill another with his malice aforethought, either express or implied, I can not comprehend.
Appellant, by counsel, assigns error in the action of the court in rejecting special instructions to the effect, that if appellant was prompted by an insane delusion when he killed deceased, then lie would be excused. The court instructed the jury fully on the subject of insanity. If a person is deluded, he is insane; if insane, he is deluded. We are not treating of illusions or hallucinations. The evidence is conflicting with regard to the only issue in the case, viz., insanity. The jury decided this issue against appellant, and we can not say that the verdict is not supported by the evidence. The burden was on defendant to prove insanity by a preponderance of the evidence. His triers say that he failed to do this, and we can not say they were wrong.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.