Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.
This case was before this court on an appeal from a former trial of the case, and was reversed and remanded. See 40 S.W. Rep., 264. Insanity was set up as a defense in that case, and the facts attending the killing and the evidence regarding insanity were substantially the same, except in the present ease more testimony was introduced on behalf of the defendant tending to show insanity. A number of bills of exception were taken by appellant to the action of the court in the admission and exclusion of testimony; but these bills only appear in the statement of facts, and the statement of facts was filed under a ten-day order, after the adjournment of the court. Consequently they can not be considered. The only questions presented that require consideration at our hands are with reference to the action of the court in giving and withholding certain requested charges, presented in the motion for a new trial.
Appellant objected to the court's charge on manslaughter, which is as follows: "But an assault and battery committed upon the slayer by deceased prior to the difficulty, and which occurred a sufficient length of time before the killing for a person of ordinary temper to become capable of cool reflection, would not be an adequate cause." This was objected to on the ground "that the testimony in the case made it an issue of facts whether the defendant was a man of ordinary temper, and on the question of manslaughter the question to be determined was whether the defendant had in fact recovered from the attack made on him, and was at the time of the shooting in fact capable of cool reflection. It being the actual condition of the defendant's mind, as a fact, at the time of the shooting, the court should not have confined the jury to the consideration of what ought to have been the condition of some ideal person, but the jury should have been permitted to determine the question of fact involved upon the testimony before them." We understand the objection urged to this portion of the charge was because it instructed the jury to consider appellant, with reference to manslaughter, as a person of ordinary temper. This is but the language of our statute on the subject. Article 700, Penal Code, is as follows: "By the expression 'adequate cause' is meant such as would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection." Now, if the adequate cause is by express law addressed to a person of ordinary temper (that is, if the passion to be aroused or engendered is to be so aroused or engendered in a person of ordinary temper), then it follows that the passion aroused, as to its continuance, must refer to a person of ordinary temper. The low in this respect puts every person on the same basis, and, as to the adequate cause, refers to the ideal person, to wit, the person of ordinary temper, and has no reference to the peculiar idiosyncrasies
or infirmities that may exist in particular individuals. Appellant here insists that he could not be regarded as a person of ordinary temper, because he introduced proof of insanity, and that consequently, as to manslaughter, the ideal standard erected by the law was erroneous as to him. As to this, we would say that he had the full benefit thereof in the charge presenting that phase of the case; and if, under the evidence and charge of the court, the jury believed him insane, they were directed to acquit him altogether. As to manslaughter, they were simply directed to put him on the plane of an ordinary person; that is, they were directed to regard him as a person of ordinary temper, both as to the condition of his mind under which the passion was engendered, and of its continuation. This we understand to be the plain letter of the statute. We do not understand other portions of the charge on manslaughter to be objected to, nor any other grounds, save those mentioned, to be urged to the charge of the court on manslaughter; and so we are circumscribed to the charge quoted, and we have discussed the same above, and see no error.
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Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.
This case was before this court on an appeal from a former trial of the case, and was reversed and remanded. See 40 S.W. Rep., 264. Insanity was set up as a defense in that case, and the facts attending the killing and the evidence regarding insanity were substantially the same, except in the present ease more testimony was introduced on behalf of the defendant tending to show insanity. A number of bills of exception were taken by appellant to the action of the court in the admission and exclusion of testimony; but these bills only appear in the statement of facts, and the statement of facts was filed under a ten-day order, after the adjournment of the court. Consequently they can not be considered. The only questions presented that require consideration at our hands are with reference to the action of the court in giving and withholding certain requested charges, presented in the motion for a new trial.
Appellant objected to the court's charge on manslaughter, which is as follows: "But an assault and battery committed upon the slayer by deceased prior to the difficulty, and which occurred a sufficient length of time before the killing for a person of ordinary temper to become capable of cool reflection, would not be an adequate cause." This was objected to on the ground "that the testimony in the case made it an issue of facts whether the defendant was a man of ordinary temper, and on the question of manslaughter the question to be determined was whether the defendant had in fact recovered from the attack made on him, and was at the time of the shooting in fact capable of cool reflection. It being the actual condition of the defendant's mind, as a fact, at the time of the shooting, the court should not have confined the jury to the consideration of what ought to have been the condition of some ideal person, but the jury should have been permitted to determine the question of fact involved upon the testimony before them." We understand the objection urged to this portion of the charge was because it instructed the jury to consider appellant, with reference to manslaughter, as a person of ordinary temper. This is but the language of our statute on the subject. Article 700, Penal Code, is as follows: "By the expression 'adequate cause' is meant such as would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection." Now, if the adequate cause is by express law addressed to a person of ordinary temper (that is, if the passion to be aroused or engendered is to be so aroused or engendered in a person of ordinary temper), then it follows that the passion aroused, as to its continuance, must refer to a person of ordinary temper. The low in this respect puts every person on the same basis, and, as to the adequate cause, refers to the ideal person, to wit, the person of ordinary temper, and has no reference to the peculiar idiosyncrasies
or infirmities that may exist in particular individuals. Appellant here insists that he could not be regarded as a person of ordinary temper, because he introduced proof of insanity, and that consequently, as to manslaughter, the ideal standard erected by the law was erroneous as to him. As to this, we would say that he had the full benefit thereof in the charge presenting that phase of the case; and if, under the evidence and charge of the court, the jury believed him insane, they were directed to acquit him altogether. As to manslaughter, they were simply directed to put him on the plane of an ordinary person; that is, they were directed to regard him as a person of ordinary temper, both as to the condition of his mind under which the passion was engendered, and of its continuation. This we understand to be the plain letter of the statute. We do not understand other portions of the charge on manslaughter to be objected to, nor any other grounds, save those mentioned, to be urged to the charge of the court on manslaughter; and so we are circumscribed to the charge quoted, and we have discussed the same above, and see no error.
Appellant objects to the court's charge on insanity, and to the refusal of the court to give certain requested charges on that subject. The court's charge on this subject is as follows: "Among other defenses made in this case is that of insanity. You are charged that only a person with a sound memory and discretion can be held punishable for a homicide, and that no act done in a state of insanity can be punished as an offense. Every man is presumed to be sane until the contrary appears to the jury trying him. He is presumed to entertain, until this appears, a sufficient degree of reason to be responsible for his acts; and, to establish a defense on the grounds of insanity, it must be clearly proved that at the time of committing the act the party accused was laboring under such defect of reason, from the disease of the mind, as not to know the nature or quality of the act he was doing, or, if he did know that, he did not know that he was doing wrong, — that is, that he did not know the difference between the right and the wrong as to the particular act charged against him. The insanity must have existed at the very commission of the offense, and the mind must have been so dethroned of reason as to deprive the person accused of a knowledge of the right and wrong as to the particular act done. You are to determine from the evidence in this case the matter of inanity, — it being a question of fact, — controlled, so far as the law is concerned, by the instructions herein given you." Appellant contends that this charge erects the single standard, to wit, that if appellant, at the time he committed the act, knew the difference between the right and wrong thereof, he was sane; if he did not know it, he was insane. It is urged that this charge was defective, because this test was too circumscribed, in that it utterly ignored emotional insanity, or the inability of appellant to control his will power, on account of his insanity. Appellant asked the court to give the following additional charge: "The responsibility of the defendant on his plea of insanity may be determined by inquiring: (1) Did the defendant
have sufficient mental capacity to appreciate the nature of the particular act of killing at the time it was done, or did he have sufficient mental capacity to know the right or wrong of the particular act at the time, and under the circumstances? and (2) did he know that he was doing wrong in killing William Thaison at the time, and under the circumstances? and (3) had he sufficient mental capacity and will power to choose whether he would or would not kill William Thaison at the time he did kill him? All these questions must be determined in the affirmative in order to hold defendant responsible for the killing charged in the indictment; and if you, from the evidence, find a negative answer to either one of said question, you should acquit him (the defendant)." This charge the court refused to give, and the appellant assigns this action of the court as error. Appellant, in this connection, refers us to Leache v. State, 22 Texas Criminal Appeals, 279, and insists that this court has heretofore laid down the rule on this question, embracing the test embodied in his special requested instructions: that is, that said test embodies, not only the right and wrong test, but also the capacity and will power on the part of a person affected with insanity to restrain his actions. An examination of that decision appears to lay down the test suggested by appellant, in addition to the test of capacity, to distinguish between the right and wrong of the particular act. But subsequent decisions of the court appear to confine this question to the capacity to distinguish between the right and wrong of the particular act. Mr. Bishop, in treating of this question, appears to adopt the view suggested in the Leache case; that is, viewing the question from a practical standpoint, there is such a thing as emotional insanity, — that is, some insane persons may be capable of reasoning, and knowing that the particular act done by them is wrong, and yet their will power is overcome, and they are driven by an irresistible impulse to the commission of the act. See 1 Bish. Crim. Law, sees. 383b-387, inclusive. However, it is not necessary for us to discuss the question here, as in our view of the case it does not become material. We understand that the peculiar insanity claimed for appellant here was that he was afflicted with insanity, or an impairment of his intellectual faculties, superinduced by masturbation, and that it manifested itself in the delusion that women he saw became infatuated with him, and he ultimately formed the idea that a certain woman in Memphis, Tenn., was pursuing him, and that she was devising plans for his destruction, etc. Now, so far as we are enabled to discover from the record, the homicide in this case has no connection with the said monomania or delusion. It is true, the books teach that a person afflicted with monomania suffers frequently a general impairment of the intellect, and he may be otherwise insane, but we see nothing in this case that indicates a general breaking down or impairment of the faculties. Doubtless, from self-abuse the intellect of appellant had become more or less weakened, and he was thus rendered morbidly sensitive, and liable to take offense in regard to matters that would not thus affect one whose faculties were entirely normal and healthy. But there is nothing suggesting
that his will power was broken down, or that, conceding he was capable of determining the right and wrong of a particular thing, he had lost control of his will power, and was incapable of resisting an impulse to do the wrong. The record, to our minds, suggests an ordinary killing, predicated on an affront and an assault made on him by the deceased on the day of the homicide, and an hour or two before it occurred. Appellant, it appears, was intermeddling with the engine or machinery used at the brick kiln where he was at work, against the orders of the deceased, who was the superintendent. The deceased told him he had no right to be meddling with the machinery. Defendant replied that he had given him authority to attend to the engine and watch everything, and everything he saw loose to tighten up. Deceased told him that he had not done so. Appellant told him he was a liar, or a "damn liar;" that he had told him more times than once. Deceased in the meantime had taken the wrench out of the defendant's hand, or defendant had given it to him; and when he called Thaison a liar the latter jumped and caught appellant by the throat with his left hand, and backed him around the boiler or water pipe, and he raised the monkey wrench over the appellant's head, and threatened to knock his brains out with it. He held him there about a half minute, and then let him go, and told defendant to go to the office and get his money and Appellant left, went up to the little town, got a pistol, loaded it, and came back about an hour afterwards, walked up to where deceased was, and shot him in the back. He made no effort to escape, but subsequently gave himself up, or was arrested by the officer in town. These are substantially the circumstances attending the killing. There is nothing extraordinary in the circumstances connected with this homicide. Appellant had a motive, which he appears to have acted upon, much in the same manner in which hundreds of other homicides have occurred. We fail to find anything in the testimony indicating that appellant was not capable, on account of defect of understanding, of knowing that the act he was doing was wrong, or, if he did know it, that he was driven to its commission by an irresistible impulse over which he had no control, superinduced by insanity. It occurs to us that, if he was insane at all, it was on account of the infirmity of his mind, which rendered him incapable of reasoning and knowing that the act he was then doing was wrong. This issue was fairly submitted to the jury, and we do not understand that any complaint is made in regard to its submission, but the charge is criticised only because the court did not give, in this connection, emotional insanity. As stated, we disagree with counsel in this contention. The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.