1. — Murder — Charge of the Court — Temporary Insanity — Duty to Charge the Law.
Where the evidence in a murder case raised the issue of temporary insanity, it was the duty of the court to charge on this phase of the case, and this error of the court could be raised in the motion for new trial, although no exception had been made to the court's charge and no special instruction requested.
2. — Same — Practice — Prerogative of the Jury.
The duty of the court to give a charge in a felony case on the issues raised by the evidence, is not dependent upon the court's judgment of the strength or weakness of the testimony supporting the theory of the defense, and the case must be looked to from the standpoint of the defendant, however unreasonable it may appear.
3. — Charge of the Court — Temporary Insanity — Recent Use of Intoxicating Liquor — Degree of Murder — Penalty.
Where the evidence raises the issue of temporary insanity from the recent use of intoxicating liquor, it becomes the duty of the court, under article 41, Penal Code, to submit this phase of the case to the jury, so as to enable the jury, in case of a reasonable doubt of the defendant's guilt as to the degree of murder, to find him guilty of the second degree, or to affix the lesser penalty for murder in the first degree, if they have no such doubt.
4. — Same — General Insanity — Charge of Court.
See opinion for evidence stated therein, which required the court to submit a charge on temporary insanity from the recent use of intoxicating liquor, notwithstanding the court charged upon general insanity.
5. — Misconduct of Jury — Practice — Counter Affidavits.
Where the defendant sets up misconduct of the jury, and the testimony with reference thereto is not adequately met by the affidavits introduced by the State, a new trial should be granted.
6. — Jury — Empanelment — Bill of Exceptions — Challenges.
Before a case will be reversed for improper empanelment of the jury, the bill of exceptions must show that appellant exhausted his challenges and that some objectionable juror sat in the trial of the case. Following Keaton v. State, 41 Tex.Crim. Rep.; Taylor v. State, 72 S.W. Rep., 396.
HENDERSON, JUDGE.
Appellant was convicted of murder in the first degree, and his punishment assessed at death; hence this appeal. The evidence for the State tends to show that although appellant and deceased had been on friendly terms, that a short time before the homicide appellant became jealous that others would interfere between their friendly relations, and on that account appellant made some remarks against deceased, which might be construed into threats. That on the very night of the homicide, which occurred during a German ball or dance, he remarked to Mrs. Wunderwaldt whom deceased had accompanied to the dance, that Hoerr (deceased) must not talk to him about one Anderson, he was his worst enemy; that he would have to beg his pardon that night, or — without completing the sentence. He is also shown, to have told one Solke, who was standing in the corridor near the door of the ball-room, "That John Hoerr is a two-faced son of a bitch; I will get even with him." This last remark was uttered but a short time before deceased was killed by appellant. It appears, as stated, that appellant and deceased were on exceedingly friendly relations, and the motive assigned by the State is that appellant appeared to be jealous of any one who would interfere with their friendship. On the night in question both appellant and deceased attended a German ball. Both participated; and it seems both danced several sets with Mrs. Wunderwaldt, whom deceased accompanied to the ball. Sometime about 1 or 2 o'clock the ball broke up, and appellant was standing on the stairway, which afforded a means of exit from the dance room. Deceased was also standing near. Mrs. Wunderwaldt came out of the ball-room, took deceased by the arm, and hurriedly went downstairs. Appellant followed, and shortly after they had gotten downstairs and were walking along the pavement, appellant came up behind and shot deceased in the back of the head, exclaiming, in the German language, "There; you got it." Appellant relied on insanity and temporary insanity caused by the recent use of intoxicating liquor. He introduced evidence tending to show a warm state of friendship existing between him and deceased. That they were very fond of each other, and that they were continually in one another's company. His own evidence tended to show he had received injuries in early life which affected his mind; and that this was intensified by domestic troubles and by the use of intoxicating liquors. It was further shown by him that he saw deceased come down the stairway with Mrs. Wunderwaldt, and he thought he was losing his last friend, and after that he did not know what occurred; that the next morning when he was informed he was implicated in killing deceased, he did not remember it. This is a sufficient statement of the case to discuss the questions raised by appellant.
Appellant assigns as error the action of the court in failing and refusing to charge the jury, the statute with reference to temporary insanity, produced by the recent use of intoxicating liquor. No charge was requested on this subject at the time of the trial, and no bill of exceptions were then taken to the refusal of the court to give such a charge. However, appellant raises this question in motion for new trial. If the evidence raised this issue, unquestionably, a charge should have been given presenting this question. The law is, that the court is bound to embrace every phase of the case presented by the evidence; and the rule is, if there is any evidence tending to establish a defense, defendant is entitled to a charge directly upon the point, no matter what may be the view of the court on the weight or the value of the testimony. The duty is not dependent upon the court's judgment of the strength or weakness of the testimony supporting the theory — it being the prerogative of the jury to pass upon the probative force of the testimony. The case must be looked to from the standpoint of the defendant, and if his testimony presents any defensive theory, however unreasonable it may appear, it is the duty of the court to give it in charge to the jury. See authorities cited in White's Ann. P.C. sec. 801, subs. 2 and 3. The court gave in charge to the jury the doctrine of insanity generally, and authorized the jury, if they believed defendant was insane at the time of the commission of the act to such a degree as to incapacitate him from a knowledge of the right and wrong of the particular act at the time, to find him not guilty. But nowhere did the court charge on temporary insanity from the recent use of intoxicating liquor, as provided in article 41 Penal Code. This particular article authorizes proof of such insanity; if the jury shall believe it exists in case of murder, it enables them to determine the degree of which defendant may be found guilty, or it may be established to enable them to affix the penalty. That is, as we understand it, it would be the duty of the jury, where temporary insanity of this character is shown, in case they have a reasonable doubt as to the degree of murder to find defendant guilty of the second degree; or if they had no such doubt and find him guilty of murder in the first degree, to affix the lesser penalty. Evidently, the court believed there was evidence in the case presenting the defense of insanity, otherwise the charge on that subject would not have been given. To our mind, if the court was required to instruct the jury as to the doctrine of insanity at all, and we believe the evidence justified this, there was certainly evidence in the case suggesting that this insanity was produced by the recent use of intoxicating liquors. As far as we are advised from the record, appellant's mind had been abused and weakened from dissipation; and this condition was enhanced by the recent use of intoxicating liquor. Early on the night in question, his employer had discharged him because of his boisterous conduct in the saloon, breaking up glasses, etc., and at that time he pronounced him drunk or crazy. There is also testimony in the record tending to show that before appellant went to the ball, after he left the saloon from which he had been discharged, he went to Charley Burckell's, and there took several glasses of beer with him; and Lewis Henzy came in and he took a glass of beer with him. Afterwards he went up to the ball. Early during the dance, an hour and a half or two hours before the homicide, Mrs. Wunderwaldt states that he was then too drunk to dance, though she says he was sober enough during the last hour or two of the ball to dance. Another witness testified that a short time before the homicide he was standing in the ante-room where the ball was going on, and appellant, "All of a sudden threw a glass of beer right into the ante-room: the glass, beer and all, rolling into the room." Witness asked him "what was up now," to which defendant replied, "That is the way it is: you may think you have got a friend, then you haven't got any." And in that connection used the remarks about deceased as before stated. This is substantially the evidence, which indicates that appellant was drinking that night. It shows, not only, that appellant was drinking, but, in the opinion of at least two witnesses, that he was drunk in the early part of the night, down to within an hour or two of the homicide. We take it, that no one will seriously contend, that even if he were drunk two hours before the act of shooting, that this would not be such recent use of intoxicating liquors as would require the court to give in charge the statute in question, provided it appeared that at the very time of the homicide appellant was not then of sane mind. As stated, the court instructed the jury as to insanity, evidently believing there was evidence tending to show this at the time of the commission of the homicide. But, on what hypothesis the court was enabled to find that insanity was in the case and not attributable at all to the recent use of intoxicating liquor, we are not able to determine. No doubt, the learned judge believed, from the fact that the evidence showed that appellant and deceased up to the time of the homicide were warm personal friends — greatly attached to each other; and the fact of a sudden killing by appellant of deceased, in the absence of any motive which usually characterizes a homicide, as well as the evidence tending to show appellant's condition of mind, required him to submit to the jury a charge of insanity. And in this we think the court was right. Under the evidence in this case showing the use of intoxicating. liquor by appellant on that night, we believe the court was equally if not with stronger reason bound to submit to the jury a charge covering our statute on the recent use of intoxicating liquor.
We are also inclined to the opinion, that a new trial should have been granted because of the misconduct of the jury while in the jury-room. We do not understand the testimony offered by defendant on this subject to be adequately met by the affidavits introduced by the State. We do not deem it necessary to discuss the questions raised in the empanelment of the jury, as they are such as are not likely to occur again. We believe the principles of law to be well settled by the decisions on that subject; before a case will be reversed on this ground, the bill of exceptions must show that appellant exhausted his challenges, and that some objectionable juror sat in the trial of the case. Keaton v. State, 41 Tex.Crim. Rep.; Taylor v. State, 72 S.W. Rep., 396.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
Davidson, Presiding Judge, absent.
[Motion for rehearing overruled without written opinion. — Reporter.]