KELLEY v. THE STATE

T.J. Wyatt and T.A. Fuller, for appellant. — The charge of the court upon temporary insanity of mind as a defense should have been in the language of the statute, and the court should have instructed the jury, in the fifth paragraph of the charge, that if the defendant, at the time of the commission of the act, was laboring under such defect of reason as not to know the nature or quality of the act he was doing, or that if he did not know that he was doing wrong, he should be acquitted. Webb v. The State, 5 Texas Ct. App. 596[ 5 Tex. Crim. 596]; Williams v. The State, 7 Texas Ct. App. 163[ 7 Tex. Crim. 163]; Powell v. The State, 37 Tex. 348.

By reference to the statement of facts in this case, the testimony both for the State and the defendant shows with preponderating force that at the time defendant was charged with the crime for which he was tried, that he was laboring under such a defect of reason from "mania a potu" or delirium as not to know the nature and quality of the act he was doing.

If he did not know what he was doing, then he did not know he was doing wrong; and being utterly deprived of his reason and understanding, he could not commit crime. We think this doctrine is within the rule of current decisions in this State.

The inquiry should have been made as to defendant's knowledge of right and wrong, with respect to the very act with which he was charged. Willson's Crim. Stats., sec. 81; Carter v. The State, 12 Tex. 500; Webb v. The State, 5 Texas Ct. App. 596[ 5 Tex. Crim. 596]; Williams v. The State, 7 Texas Ct. App. 163[ 7 Tex. Crim. 163]; Clark v. The State, 8 Texas Ct. App. 350[ 8 Tex. Crim. 350]; King v. The State, 9 Texas Ct. App. 515[ 9 Tex. Crim. 515]; Warren v. The State, 9 Texas Ct. App. 620[ 9 Tex. Crim. 620]; Johnson v. The State, 10 Texas Ct. App. 571[ 10 Tex. Crim. 571]; Pettigrew v. The State, 12 Texas Ct. App. 225[ 12 Tex. Crim. 225]; King v. The State, 13 Texas Ct. App. 277[ 13 Tex. Crim. 277]; Thomas v. The State, [ 40 Tex. 60]; Erwin v. The State, 10 Texas Ct. App. 700[ 10 Tex. Crim. 700]; Burkhard v. The State, 18 Texas Ct. App. 599[ 18 Tex. Crim. 599]; Powell v. The State, 37 Tex. 348.

Previous to the statute regulating intoxication as a defense in this State, the court passed upon it according to the rule of the common law, and has been held by the courts and ruled in the cases cited. We think, notwithstanding our statute regulating intoxication as a defense, we are not wholly cut off from the old and established rule, where a positive case of "mania a potu" or delirium exists. We think the court should have instructed the jury on the law applicable to the facts in the case. The defendant has reasons to justly complain of the charge of the court, especially the latter part of paragraph 5, which had an emphasizing effect upon the jury. The language used by the court is as follows: "But any amount of voluntary drunkenness which does not reach the status above indicated would not form a justification for the commission of the act."

The finding of the jury is most clearly and distinctly against the evidence. The language used produced an effect upon the jury that they were compelled to find defendant guilty. At all events, the court should have stopped after charging the statutory rule upon intoxication, and left the jury free to decide the issue from all the circumstances in evidence in the case.

The fifth paragraph of the court's charge reads as follows: "You are charged that intoxication produced by the voluntary recent use of ardent spirits constitutes no excuse for the commission of a crime; however, if in this case you find and believe that the mind of the defendant at the time he entered said house (if you find he did enter the same) was in such a condition from drunkenness, or from insanity produced by the use of ardent spirits, that he, the defendant, could not form a fraudulent and criminal intent, then you will acquit the defendant; but any amount of voluntary drunkenness which does not reach the status above indicated would not form a justification for the commission of the act, if it was committed."

With forceful and unnecessary repetition, the court here reiterates in a paragraph twice over the dizzy height to which defendant must ascend with his evidence before his defense is entitled to consideration at the hands of the jury.

The parting language of the court is, that in this contest for his liberty upon this issue, the presumption of law is, that he knew and intended the nature and consequences of his act, or the act being proved characterized the intent.

Concede that the opening clause of this paragraph is the law, and that what immediately follows is all that defendant could ask, as presenting his defense, how futile was this crumb to him, after it was qualified, neutralized, and destroyed in effect by the pointed proviso attached to it, recalling the minds of the jury to the extraordinary status required by law to be attained by defendant before his defense should receive consideration at their hands. This is followed by telling the jury that the presumptions were against him upon the issue. As thus stated, he was deprived of a fair and affirmative charge upon the defense made by the evidence, and it was fundamental error not to give such.

We contend, however, that said paragraph is not the law of burglary and of this case. In the case of Carter v. The State, 30 Texas Court of Appeals 551[ 30 Tex. Crim. 551], Judge Davidson restates as fundamental criminal law, that it is the intent which characterizes the act, and not the act the intent. Burglary must be characterized by a certain intent, and this charge relieves the State of showing such intent, and puts against the defendant the presumption of such intent, and requires him to show its nonexistence. Collins v. The State, 20 Texas Ct. App. 197[ 20 Tex. Crim. 197]; Allen v. The State, 18 Texas Ct. App. 120[ 18 Tex. Crim. 120]; Reed v. The State, 11 Texas Ct. App. 510[ 11 Tex. Crim. 510]; Peter v. The State, 23 Texas Ct. App. 684[ 23 Tex. Crim. 684]; Carter v. The State, 30 Texas Ct. App. 551[ 30 Tex. Crim. 551].

Again, we insist, that under the undisputed evidence the defendant should not have been convicted; and also that the trial court should have granted him a new trial, for the reason that the verdict of the jury was against the evidence. A section hand who, though lowly in the sphere of life, had prior to this occurrence borne good character for honesty and integrity, had been on a two weeks drunken debauch. He had delirium for days, and at 6 o'clock on the night of the alleged burglary, he was crazy, and did not know what he was doing. At 10 o'clock on same night, with his bare hand, he broke out a window of a beer saloon, near which was situated a barrel containing beer in bottles, and in thirty feet of where the State's witnesses were sitting, and immediately thereafter he was found with some beer bottles convulsively clasped to his bosom, and ill an unconscious state, and upon being asked if he was hurt, his only reply was to hold up his cut and bleeding hand. The saloon man testifies, that at 3 o'clock that evening he was not insane. He merely judges from his outward appearance. The defendant testifies that he was wholly unconscious of having done the act, and we most candidly insist that this is a conviction that should not be permitted to stand. We invite the inspection of the entire record, wherein we think the soundness of our contention will be manifest, and we respectfully ask that this cause be reversed and remanded, for the errors above urged.

On motion for rehearing (which was overruled) the same learned counsel filed the following brief and argument:

Now the appellant comes and moves the court for a rehearing, and asks that this cause be reversed and remanded for the following reasons, to-wit:

1. Because the defendant was entitled to a charge under the evidence upon "settled insanity," unmixed with the doctrine of drunkenness, and the charge given being excepted to, was error.

2. Because the evidence fairly raised the issue of settled insanity, and it was part of the law of the case, and the jury should have been charged that if at the time of the commission of the act the defendant was laboring under such defect of reason as not to know the nature and quality of the act he was doing, or if he did not know he was not doing wrong, he should then be acquitted.

Barrett testified: Defendant had been on a drunk for about two weeks. For a day or two before the house was broken into tie did not know what he was doing. Hie was nervous and exhausted. I saw him about dark just prior to this burglary. He was not in his right mind; saw him lying helpless around Rhome for two weeks.

Carson says: Saw defendant for two weeks before the burglary; saw him lying around drunk and helpless; saw him the day of the occurrence; he was shaking, exhausted, and weak. The day before the burglary saw him, and he was crazy for something to drink.

Defendant testified that he was unconscious and irrational, and did not know what transpired. Smith v. The State, 19 Texas Ct. App. 95[ 19 Tex. Crim. 95]; Erwin v. The State, 10 Texas Ct. App. 700[ 10 Tex. Crim. 700].

3. A rehearing should be granted and the cause reversed, because of this language used by the court in the charge, which was duly excepted to, to-wit: "Every man is presumed, until the contrary is shown to the jury, to have a sufficient degree of reason and understanding to be responsible for his acts." This was tacked on to the fifth paragraph, and by mistake was omitted in our quotation in former brief. It was a part of fifth paragraph.

We call attention to appellant's bill of exception found in the transcript. The State's witness testified, for the State, that upon hearing glass fall he went around behind the store and found defendant hitched in a wire fence a few feet from the back of the saloon, and when he was unhitched he fell over in all unconscious state; and upon cross-examination said further, that he was mumbling and talking incoherently when he first found him hung ill the fence. The court, in effect, charged that the presumption was, that these witnesses were wrong. We take the position that the evidence under the peculiar phase did not authorize the court to charge that the defendant was presumed to have a sufficient degree of reason and understanding to be responsible for his act. Again we most earnestly submit that this charge, taken as a whole, was most dangerously misleading.

Responsibility for his acts means, in the connection used in the charge, criminal liability and consequent punishment. The jury could not have understood it otherwise, indeed, it is the plain meaning. The act having been proved, the responsibility ensues — that is to say, the statutory penalty follows. The ingredients necessary to make a complete case is presumed until the contrary is shown, is the doctrine of the charge. The jury are told that appellant is presumed to be responsible for his acts; presumed to merit punishment; presumed to have done it with fraudulent intent; presumed to owe responsibility to the law; and to have filled its measure under the law of burglary by proof of the naked act, unless the contrary is shown. If it is the law that when an act is committed in a state of mind when the perpetrator does not know right from wrong, his criminal liability depends upon what made him so, or the length of time he had been in this condition, still we insist that this charge is obnoxious to the bill of exception retained to it. It means more than to say that the burden of proof is upon the defendant to show his insanity. It reaches the main case, and strengthens, by the great weight of presumption, the chief elements of guilt. If it is the intent which characterizes the act, and not the act the intent, why should the jury be told in a burglary case that responsibility is presumed when the act is shown? It takes something more than the act alone; it takes intent also.

We respectfully ask an examination of our bill of exception to the court's charge, from which it appears that the appellant not only suffered injury from the substance of the matter charged and from the omission to charge the law, but from the manner of its statement; being complex, reiterative, and injurious repetitions, it was rendered doubly erroneous and hurtful. We respectfully ask that a rehearing be granted, and the cause reversed and remanded for the errors assigned by us in our original brief, and by the reasons assigned in this motion. Carter v. The State, 30 Texas Ct. App. 551[ 30 Tex. Crim. 551]; Collins v. The State, 20 Texas Ct. App. 197[ 20 Tex. Crim. 197]; Lyle v. The State, ante, 103. R.L. Henry, Assistant Attorney-General, for the State; but no brief for the State has come into the hands of the Reporter.