W.E. Burt was convicted in the District Court of Travis County of murder in the first degree, the jury assessing his punishment at death. The evidence in this case, though circumstantial, establishes beyond all controversy that appellant killed his wife and two little children. This being the case, under the circumstances attending the homicide, he was evidently guilty of murder of the highest degree, if sane. The defense was insanity.
First error assigned: It appears that counsel for the State submitted to the expert, Dr. Wooten, a hypothetical case, and then asked his opinion as to the sanity or insanity of the defendant. Dr. Wooten answered that he believed him sane. Counsel for State then submitted to the expert, a case based on all of the evidence, and received the same answer. Counsel for defendant then submitted his hypothetical case, and obtained from Dr. Wooten the answer that in his opinion the defendant was insane. As appears from the bill of exceptions, full opportunity was given defendant to obtain the opinion of the expert upon any hypothesis supported or inferable from any evidence in the case. Notwithstanding appellant submitted his case to the expert, and counsel for State submitted its case, yet appellant objects, because the opinion was obtained before a full case had been submitted. What, therefore, are the rules governing this proceeding? The Supreme Court of Indiana, speaking through Coffey, J., in the case of Davidson v. State, 135 Indiana, 261, 34. N.E. Rep., 972, say: "In the examination of expert witnesses, counsel may embrace in hypothetical questions such facts as he may deem established by the evidence, and, if opposing counsel does not think all the facts established are
included in such question, he may include them in questions propounded on cross-examination. Any other course would result in endless wrangles over the questions as to what facts were and what were not established." Citing Goodwin v. State,96 Ind. 550; Rog. Exp. Test., 39; Stearns v. Field, 90 N.Y. 640. The proposition asserted in Stearns v. Field, 90 New York, 640, is as follows: "If testimony of an expert is proper, counsel may ask a hypothetical question, assuming the existence of any state of facts which the evidence fairly tends to justify. An error in the assumption does not make the interrogatory objectionable, if it is within the possible or probable range of the evidence. And it seems that such a question is not improper because it includes only a part of the facts in evidence." Citing, among other cases, Cowley v. People, 83 N.Y. 464. In Cowley v. People, supra, the learned judge says: "Another question raised is as to the admissibility of the hypothetical question put to medical experts sworn as witnesses. The claim is that the hypothetical question may not be put to the expert, unless it states the facts as they existed. "It is manifest, if this is the rule, that, in a trial where there is a dispute as to the facts, it can be settled only by the jury, and there would be no room for the hypothetical question. The very meaning of the word is that it supposes — assumes — something for the time being. Each side in the issue of facts has its theory of what is the true state of the facts, and assumes that it can prove it to be so to the satisfaction of the jury, and, so assuming, shapes hypothetical questions to experts accordingly, and such is the correct practice." Citing Erickson v. Smith, 2 Abb. Dec., 64 People v. Lake, 12 N.Y. 358; Seymour v. Fellows, 77 N.Y. 178.
Counsel for appellant do not contend that the State did not submit to the expert a full case as the basis of his opinion, and, if this contention is made, it is not true. The contention is that counsel for the State submitted a case based upon its testimony, exclusive of that for the defense, and obtained the opinion of the expert, and then proceeded to submit to the expert a case based upon all the evidence, and that the opinion should not have been given until a full case had been submitted. Not that a full case was not submitted, but that it was not submitted until after an answer was given by the expert. Nor is it contended that counsel for defendant did not submit a full case to the expert, and obtain his opinion thereon. The bill of exceptions shows that this was done. Now, then, a case based upon all the evidence was presented to the expert by counsel for the defendant, as well as counsel for the State. This being so, we can not hold that the answer which was obtained under the above circumstances should be held error for which this judgment should be reversed. Suppose counsel stating the hypothetical case should, unintentionally or through ignorance, omit to embrace therein a fact relevant to the question of sanity, and the opposing party should object, because all the facts are not embraced within the hypothetical case, calling attention to no fact omitted, would he be permitted to complain? Should the judgment be reversed because of such error, if this should be error? Certainly, no. If every fact which is relevant must be included in the hypothetical case
to authorize an answer from the expert, then, we assert, there are but few lawyers, if any, in this State or elsewhere, who have the capacity to correctly submit a hypothetical question of this character. Take a case in which there are a great number of witnesses, each swearing to acts and conversations of the accused covering a great number of years, to all manner of social and business transactions, to his facial expression, etc. Who would be able to cull from this huge mass of testimony that which was relevant to the question of sanity, and submit it to the expert, without omitting some fact that perhaps would be pertinent to the issue of sanity? Failure would be inevitable, and to permit the opposing party to object because all of the facts were not embraced in the hypothetical case, and on appeal reverse the judgment on this account, would result in the reversal of all judgments in this character of cases, or altogether deprive the party of the benefit of expert testimony on a hypothetical case. This being the probable result of such a rule, with much greater reason should we hold, where, as in this case, a full case has (whether by the State or the defendant) been submitted as the basis for an answer, that there would be no error, and especially no reversible error. We are not treating of a case in which the expert gave an opinion without hearing all of the evidence. This was the question discussed in Webb v. State, 9 Texas Criminal Appeals, 490, and in Leach v. State, 22 Texas Criminal Appeals, 279, referred to by counsel for appellant. Judge White, in his opinion in the latter case, says: "Where the expert has not heard the evidence, each side has the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence, and, if meagerly presented in the examination on one side, it may be fully presented by the other; the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted." It would seem that the learned judge below had this case in mind in the trial of the case now before us.
Miss Carrie Sparks testified for the State that she knew where defendant lived on the 24th day of July, 1896; that, about 7 o'clock p. m. of said day, she was passing said house, and heard a voice — a woman's voice — pitched high, saying, "I am not going to stand this thing any longer." That she was positive as to the day, and the high tone of the voice. Counsel asked the court to note their exception to this evidence, because the same was not in rebuttal. The court replied that no objections had been made. Counsel for defendant then moved to exclude the evidence, because not in rebuttal. This the court refused to do. In this there was no error, because the court had the discretion to receive evidence until the argument was concluded, whether in rebuttal or not.
O.H. Gibson was permitted to relate to the jury a business transaction which he had with the defendant. The transaction occurred a few days before the homicide. Counsel for defendant objected, because the predicate laid by the testimony of the witness was not a sufficient basis to authorize an expression of opinion as to the sanity of defendant. This objection was overruled, and witness answered that, in his opinion, defendant
was then sane; that is, at the time of the transaction. To this bill of exceptions the learned judge appends the following explanation. "That said witness was asked his opinion as to defendant's sanity at the time of his conversation with him about the check on Wednesday before July 24, 1896, and witness detailed at length the facts upon which he based his opinion, as is set out in statement of facts much more fully than in this bill, and answered that, upon the facts detailed, defendant was, in his opinion, at that time, sane." We are not required to consult the statement of facts to verify the judge's statement. If counsel for the accused were not satisfied with this statement, they should have inserted in the bill of exceptions all that Gibson stated. But, if the testimony of this witness is looked at, it will be found that, though not an expert, he was qualified to give an opinion as to the sanity of the defendant. This is not like the Williams Case, 37 Texas Criminal Reports, 348. In that case no facts were stated by the non-experts as the basis of their opinion. Here the witnesses gave a very full detail of such facts.
R.A. Rutherford was permitted to give his opinion as to the sanity of the appellant. Counsel for appellant made the same objection to this witness as he did to the testimony of Gibson, above, and the learned judge gives the same explanation to the bill of exceptions. In regard to this bill we make the same observations as with reference to Gibson's testimony above, holding that he very clearly qualified himself to give an opinion on the sanity of the accused.
Counsel for appellant proposed to read certain excerpts from standard works on medical jurisprudence and the disease of insanity. The State objected, and the court sustained the objection, and defendant reserved his bill of exceptions. We have carefully read the brief of appellants on this phase of the case, and, while counsel seem very confident that the court committed an error in rejecting these excerpts, they cite no authority in support of their contention. We have no statute on this subject. The rules of evidence known to the common law of England must therefore prevail. What is the common law upon this question? In Reg. v. Crouch, 1 Cox, Cr. Cas., 94, the prisoner was indicted for the willful murder of his wife, and the defense set up was insanity. We quote the case in full: "Clarkson, for the prisoner, in his address to the jury, attempted to quote from a work, entitled 'Cooper's Surgery,' the author's opinions on the subject. Alderson, B., thought he was not justified in doing so. Clarkson: I quote it, my lord, as embodying the sentiments of one who has studied the subject, and submit that it is admissible in the same way as opinions of scientific men on matters appertaining to foreign law may be given in evidence. Alderson, B.: I should not allow you to read a work on foreign law. Any person who was properly conversant with it might be examined, but then he adds his own personal knowledge and experience to the information he may have derived from books. We must have the evidence of individuals, not their written opinions. We should be inundated with books if we were to hold otherwise. Clarkson: I shall prove the book to be one of high authority. Alderson,
B.: But can that mend the matter? You surely can not contend that you may give the book in evidence, and, if not, what right have you to quote from it in your address and do that indirectly which you would not be permitted to do in the ordinary course? Clarkson: It was certainly done, my lord, in M'Naghten's Case [10 Clark F.]. Alderson, B.: And that shows still more strongly the necessity for a stringent adherence to the rules laid down for our observance. But for the noninterposition of the judge in that case, you would not probably have thought, it necessary to make this struggle now." The case of Reg. v. Taylor, 13 Cox, Cr. Cas., 77, was another murder case. The deed was done by cutting the throat of the deceased in the presence of only a child about 9 years old. Counsel for the defense, in addressing the jury, set up insanity on the part of the prisoner, and proposed to read a case from Taylor's Medical Jurisprudence. Brett, J., says: "That is no evidence in a court of justice. It is a mere statement by a medical man of hearsay facts of cases at which he was in all probability not present. I can not allow it to be read." In line with this common-law rule will be found the cases following: Ashworth v. Kittridge, 12 Cush., 193; Boyle v. State, 57 Wis. 472, 15 N.W. Rep., 827; Com. v. Wilson, 1 Gray, 337. We quote from Boyle v. State, supra, as follows: "Medical books can not be introduced in evidence, nor can an expert witness be permitted to testify as to statements made therein; and it is clearly inadmissible to permit the reading of such book to the jury by counsel." "In the trial of a criminal case, where the defense relied on is the insanity of the defendant, neither books of established reputation on the subject of insanity, whether written by medical men or lawyers, nor statistics of the increase of insanity, as stated by the court or counsel on the trial of another case, can be read to the jury." Com. v. Wilson, 1 Gray, 337.
Counsel proposed to read the same excerpts from these standard works in explanation and elaboration of his argument. The court refused to allow this to be done, and defendant reserved his bill of exceptions. The authorities cited on the preceding question are in point, and, in addition, we cite People v. Wheeler, 60 Cal. 581; Insurance Co. v. Bratt,55 Md. 200; Rog. Exp. Test., sec. 179.
Dr. Davis was placed upon the stand as a witness for the State, and after proving his acquaintance, etc., with the defendant, he was permitted to testify that the defendant was simulating; that is, playing a part, and not acting naturally. This was objected to by defendant, "because immaterial, and it would throw no light to the jury by which to read a solution of the question of guilt or no guilt in defendant as to the issue before the jury, to wit, sanity or no sanity in the defendant on the 24th of July, 1896, the day of the alleged offense for which defendant was on trial; that simulation or no simulation at this time, and in the present surroundings of defendant, would not help to aid the jury in determining whether this defendant was sane or insane on the 24th day of July, 1896, when the offense for which he is on trial was alleged to have been committed. All objections were overruled, and the exception reserved." The learned
judge qualifies this bill of exceptions by stating "that the witness testified that he had carefully observed the defendant and his demeanor during the trial, which had lasted about seven days; that he had qualified himself as an expert previously; and that the defendant himself had offered in evidence the manner and appearance of the defendant, the way he demeaned himself during the trial, as an evidence of his insanity at the time of the trial. The defendant had demeaned himself quite unusual to an ordinary individual on such a trial, and under these circumstances the evidence as to whether or not he was then intentionally trying to play a part or simulate insanity was admitted, and this question was put to witness after the hypothetical question stated in other bills had been answered by him." From this explanation it appears that the appellant entered this field of evidence by offering testimony of his manner and appearance and demeanor during the trial, as evidence of insanity at that time. Unquestionably, the State could follow him, and introduce evidence as to this same matter. It was evidently the purpose of the appellant, when introducing this evidence, to convince the jury that, as he was then insane, the probability was that he was insane at the time of the homicide. The court was clearly right in admitting this testimony.
The hypothetical question was also submitted to this witness, and he answered that, in his opinion, the defendant was sane on the 24th day of July, 1896. The objections here raised are the same as those presented with reference to the hypothetical question submitted to Dr. Wooten, and treated in this opinion above, and therefore we will not go over this discussion again.
It appears from a bill of exceptions that, at the request of appellant, Dr. Wooten and others went to the jail, and took the dimensions of the skull of the defendant, and, while there, examined the defendant, talked to him, looked at him, and observed him. The State proved by Dr. Wooten that it was his opinion that defendant was sane at that time. This bill of exceptions refers us to the statement of facts. When we consult the statement of facts, we are clearly of the opinion that the observations of defendant by Wooten were amply sufficient to warrant him in giving an opinion and there was no error in admitting his testimony. Another bill of exceptions was reserved to the testimony of Dr. Wooten as an expert as to the sanity of the defendant, but, when considered in the light of the explanation of the trial judge, it presents no error whatever.
Jack Hughes was placed on the stand for the State, by whom it was shown that he had noticed the fact that the defendant had struck his head against the window frame the day before, as he passed through the window, and that it was the only time the defendant had done so in the many times he had passed through said window during the trial. It appears that the defendant had offered in evidence the appearance of himself during the trial, his manner of coming in and going out of the courtroom, etc., as shown by the statement of facts. This presents the
same question that we have discussed above in relation to the defendant simulating insanity. We find no error in this matter.
After proving by Dr. Smoot that he was 50 years of age, a minister of the gospel, and, as such, serving the Presbyterian Church in the city of Austin for twenty years, and that he had read some authors on moral and intellectual science, but nothing on insanity or medical jurisprudence, the appellant proposed to prove by him that, in his opinion, the defendant was insane on the 24th of July, 1896, the day the offense is alleged to have been committed; and the State objected, because Dr. Smoot was not an expert. The court refused to permit the witness to testify on this phase of the case, and we think the ruling was correct. This witness was offered as an expert, when in fact he was not an expert. It was not proposed to prove his opinion as to whether defendant was sane or insane from what he knew of the defendant, his associations with him, etc., but simply to obtain his opinion as an expert.
We are not informed of any case holding that because a prisoner is in jail, unwarned, therefore his conduct can not be observed, so that the expert can give an opinion as to his sanity. It would be a remarkable case, indeed, in which the accused, if insane, would simulate sanity. We can not comprehend how the fact that he was in jail could, affect his conduct in this particular in any manner, and therefore the ruling of the court in regard to the testimony of Dr. M.M. Smith was correct. See Adams v. State, 34 Tex. Crim. 470.
The matters contained in the bill of exceptions in reference to the testimony of Dr. Goodall Wooten have been disposed of in treating of the bill of exceptions relating to the testimony of Dr. Wooten, hereinbefore discussed.
The objection to the testimony of R.E. White, sheriff, is not well taken. He had warned the defendant, and, after being warned, anything that the defendant stated to him was admissible, and he had a right to give his opinion as to the sanity of the defendant. Having stated detailed conversations, facts, acts, and his observations of the defendant, he was qualified to give an opinion. In addition to this, we will not be forced to peruse the statement of facts in order to ascertain whether the witness qualified himself or not. As before stated it is the duty of counsel for appellant to set forth the facts in the bill of exceptions. But, to satisfy ourselves that the learned judge acted properly, we have examined the testimony of this witness in the statement of facts, and find him qualified as a witness.
Objection was made to the charge of the court. We think the charge is an admirable one. It was the duty of the court, in defining murder in the first degree or murder upon express malice, to charge the jury: "Do the facts and circumstances in this case show such a reckless disregard of human life as necessarily includes a formed design against the life of the person slain? If they do, the killing, if it amounts to murder, would be upon express malice." This charge is amply supported by a number of authorities. If sane, it would be almost morally impossible for the
homicide to be committed, under the circumstances in this case (the prisoner having slain his own wife and two little children) without it being upon express malice. This homicide, with its attending circumstances, evinces a reckless disregard of human life, which is the conclusive evidence of express malice. There was no passion attending this homicide, and the defendant's mind was in the same condition when he killed his wife as it was when he killed his two little children. We are of the opinion that the charge is eminently correct when viewed as a whole.
A number of methods, modes, and instruments were alleged to have been used in the perpetration of the crime. The indictment alleges that it was "by then and there striking, beating, and wounding the said Anna M. Burt upon her head and face, with a hatchet and some heavy instrument, a better description of which the grand jurors are unable to give, thereby fracturing the skull and the bones of the face of the said Anna M. Burt, and by then and there tying tightly around the throat and neck of said Anna M. Burt a handkerchief, thereby strangling and suffocating the said Anna M. Burt, and by then and there wrapping around the head and body of said Anna M. Burt a blanket, and securely tying same thereon with rope, and then and there throwing said Anna M. Burt, so wrapped and tied, in a cistern partially filled with water, sufficient to submerge the body of said Anna M. Burt." This indictment is correctly drawn. Where there is doubt about how the death was produced, it is well to put every means suggested by proof in the indictment; and, if proof be made of one of the means, it is unnecessary to prove them all. It is not necessary to cite any authority to sustain this proposition.
If there was any error in the charge of the court, it consists in the fact that the court submitted murder in the second degree to the jury. We believe this practice, however, to be correct, prudent, and safe. The charge upon this subject is the law, not obnoxious to any objection.
The court gave the usual charge in regard to the burden of proof applicable to a case in which the accused relies upon insanity, charging that the burden was upon the accused to show his insanity. My opinion upon this subject has been expressed, and I can add nothing to what I have said, in the King Case, 9 Texas Criminal Appeals, 515; but the majority of this court hold that the charge upon this subject as submitted to the jury in this case is correct. The rule in Texas is unbroken in support of the charge as given in this case upon the question of insanity. If the burden is upon the defendant to etablish insanity, he is not entitled to reasonable doubt upon this proposition. If the burden be upon the State, then he might claim that the State should be required to establish sanity beyond a reasonable doubt; but, being upon him, he must discharge the burden, and satisfy the jury that he was insane. He need not do this beyond a reasonable doubt, but this must be done.
Counsel for appellant insist that, notwithstanding the enormity of the acts imputed to appellant, yet he was entitled to a fair and legal trial, and that, if he has not had such trial, the judgment should be reversed.
We indorse this proposition to the fullest extent, and, if we believed that any error had been committed in this trial in the least calculated to prejudice the rights of the accused, we would not hestitate to say that the judgment should be reversed; but we are of opinion, after a careful examination of this record and close attention paid to the argument of the learned counsel for the defense (than whom we have no superior), that the appellant has received a fair and legal trial. The question of fact whether the appellant was sane or insane was submitted to the jury. The evidence is conflicting. We are of opinion, however, that the great weight of the testimony is in favor of the sanity of defendant; but be this as it may, the jury has settled the question, and we think they have settled it properly.
We are of opinion that the judgment should be affirmed, and it is accordingly so ordered.
Affirmed.
MOTION FOR REHEARING.
And now comes appellant, W.E. Burt, and moves the court for a rehearing in this case, and for grounds for motion shows to the court:
1. The court misconstrued the record on the first ground discussed by the court and urged by appellant for a reversal of the case, viz., that growing out of the hypothetical question put to the expert witness, Dr. Wooten, by the State; in that the statement in the opinion is not borne out by the record, as will be more fully set out in the accompanying statements and arguments.
2. The court erred in not sustaining appellant's contention growing out of bill of exceptions 3, in that the court does not deal with the real question that springs therefrom, but confines itself to only one question, and leaves undiscussed and undecided the main question, viz., whether the testimony objected to was admissible against defendant as original evidence, and whether, if not, it should not have been withdrawn on the motion of defendant so to do.
3. The court erred in not sustaining the objection to the testimony of O.H. Gibson, as made by bill of exceptions number 1, subdivision 2, because his acquaintance with appellant was not of that full and intimate character which would authorize him to give an opinion on facts. The substance of what he testified as to facts was embraced in the bill, and this court was misled by the qualification of the trial judge to said bill by his referring to the statement of facts, and the court was in error in not turning to the statement of facts when reference is made thereto in any part of the bill. Penal Code, art. 686; Rev., Stats., art 1362.
4. The court erred in like manner in regard to the question raised over the evidence of R.A. Rutherford and for the same reason as raised in subdivision 1 of bill 1.
5. The court erred in not sustaining the objections to the testimony of Dr. Davis as shown by bill of exceptions number 4, because the court in the first place misconstrues the record, and consequently misstates the conditions surrounding the status of the case, when the question as to simulation of appellant during the trial was put by the State. Defendant had never "entered the field of evidence by offering testimony of his manner, appearance, and demeanor during the trial, as evidence of his insanity at the time." The court was misled by something that is not in the record; and second, the court fails to discuss or decide the questions springing from said bill in regard to the hypothetical case or question put to said witness. This court is in fatal error when it parallels the question arising from bills taken to the testimony of Drs. Wooten and Davis. A moment's glance at them demonstrates the difference. The Wooten bill (number 2) is made to speak through the qualification thereof by the court, viz: He makes the same qualification to this bill as he does to the bill taken as to the Dr. Davis testimony, and then proceeds: "The State, after asking a hypothetical question based on her testimony, further asked the witness his opinion based upon a hypothetical case, embodying all the evidence in the case." The qualification to the Davis bill, number 4, was as follows: "And the court stated to counsel that the State would be allowed to state a hypothetical case, based upon the assumption that her testimony was true, and embracing all the evidence for the State, and to ask the opinion of the witness based upon such hypothesis, and that the defendant would be allowed to state a hypothetical case, based upon the assumption that his testimony was all true, and on all reasonable inferences to be drawn from such testimony, and to express his opinion upon such hypothetical case. The State embraced all its testimony in its hypothetical question, and upon the assumed truth of said question the witness stated in his opinion that the defendant was sane. The defendant then put his hypothetical case to the witness based upon the assumption that all of his testimony was true, and based on the assumption that all reasonable inferences to be drawn from his testimony were true, including the fact that defendant, without motive, reason, or cause, killed his wife and children, upon which question witness answered that upon such hypothesis the defendant was insane. All the evidence was embraced and included in the State's hypothetical question and defendant's hypothetical question combined.
6. The court erred in holding that the examination of Dr. Thomas D. Wooten of defendant in the jail, when his sole business there was to measure his head, was sufficient to authorize him to speak as to the mental condition of the defendant four months before.
7. The court erred in holding the testimony of Jack Hughes admissible in presence of bill of exceptions taken concerning same.
The court misapprehended the conditions surrounding the case at the time, and gives reason for its decision of this point that are not in the record, viz., that defendant had entered into the domain of testimony to show that he was insane during the trial.
8. The court misapprehended the record in discussing the question raised by bill in regard to the witness Dr. Smoot. He was used as a lay witness, and then sought to be used as an expert when the bill arose.
9. The court erred in sustaining the charge of the trial court, wherein the court charged that the jury might infer express malice if the killing and the manner of it showed a reckless disregard of human life.
This not being a killing where such a charge has a place, it is not believed that this part of the decision was well considered. The charge is a misapplication of the law, and was ruinous to defendant on trial.
10. The court erred in failing to pass on subdivision 11 of the court's charge, where the court uses the language: "Or if the said defendant did with malice aforethought so kill said Anna M. Burt," which defective charge was expressly arraigned as authorizing a verdict of murder in the first degree, on implied malice, that is, malice aforethought, and not express malice aforethought. The court failed to consider said error.
The said error in the charge was fatal to defendant. It allows of no construction save that given it by the defendant, viz., to convict him of murder in the first degree on implied malice, and the court erred in not so holding and reversing the case therefor.
The court erred in not holding that it was not error in the trial court, in holding in its charge that where insanity is set up as a defense the burden of proof is not on the State but on the defendant.
The court further erred in upholding the charge of the trial court which placed the burden of proof on the defendant, on the issue of insanity, because the statutes of Texas provide that the rules of evidence known to the common law, in respect to the proof of insanity shall be observed in all trials where that question is at issue, and the rule of the common law on that subject, as declared by the Supreme Court of the United States, a common law court, is that the burden of proof in such cases is on the State; that such decision of the Supreme Court is of the dignity of a law, is the supreme law of the land, and appellant claims the benefit and protection thereof. Vide section 40, Penal Code of Texas, and Davis v. United States,160 U.S. 469. And yet further, because the upholding of said charge, which compelled appellant to labor under the burden of proving his insanity on his trial, was in violation of article 5 of the amendments of the Constitution of the United States, and also of section 1, article 14 of the amendments of the Constitution of the United States, and is such a gross error as to amount, and does amount, to a denial of a fair and impartial trial under due process of law; in this:
(1.) It shifted from the State, upon which same always rests, the burden of proof of criminal charge against appellant, and in effect requires him to establish his innocence (irresponsibility) for an offense of which he had not been proven guilty; until he was beyond a reasonable doubt proven guilty of some crime, he was presumed to be innocent thereof.
(2.) It abridged his immunity, as a citizen of the United States in that behalf, i. e., to be presumed innocent until the State had proven, beyond a reasonable doubt, against him every material element, including
his sanity or mental responsibility necessary to establish the offense with which he was charged.
(3.) It deprived or tended to deprive him of his life without due process of law; and,
(4.) Denied to him the equal protection of the law; for it required him to disprove an offense not yet proven against him, a burden not imposed on appellant equally with all other persons charged with crime under the laws of the State of Texas.
In view of all the facts — the gravity of the questions involved — the importance of their right decision to appellant — being no less than his life — he asks that his counsel may orally argue this motion, and that a rehearing may be granted to him.
[NOTE. — This motion was supplemented by a most able brief and argument upon all the points submitted, which, owing to its length, can not be reproduced, to the regret of the Reporter.]
ON MOTION FOR REHEARING.