Taylor v. State

227 S.W. 679, 88 Tex. Crim. 470, 1918 Tex. Crim. App. LEXIS 417

Opinions

PRENDERGAST, Judge.

Appellant was convicted of an assault with intent to kill his wife and his punishment assessed at six years in the penitentiary.

Appellant and his wife had been married for about four years. Early in March, 1917, she left and quit him, it seems the second time. She swore that he cursed and abused her and threatened to kill her and told her that “she wasn’t decent enough for white folks to live with,” which was the immediate cause of her quitting and leaving him. She went to her mother’s. Appellant blamed her mother and her brother, with whom her mother lived, for her quitting him. He sought to have an interview with her to try to induce her to return and live with him, and had one of his brothers-in-law to see her for that purpose. She not only declined to return to him, but also declined to see him and talk the matter over with him. When this was reported to him he said, “She will be damned sorry of it.” He made threats against her kin folks, and it seems especially against her mother and one of her brothers.

The uncontradicted testimony shows that on March 26, 1917, he armed himself with a double-barrelled shotgun, waited until in the night and slipped up to a window of the house where his wife was sitting and attempted to assassinate her. He shot her through the window, making what the doctor says was a very “extensive, ragged gunshot wound” and place large enough to almost put the hand into in her side and back. Her brother then went out of the house to try to catch him and run him off and prevent him shooting his sister again. He thereupon shot at her brother twice and then ran off and made his escape from her brother but was found later that night and arrested.

He was indicted May 29, 1917. The cause was set for trial on June 13th. On that date, on his application, the case was continued until June 20th. On June 20th, when the case was again called for trial he filed a second application for a continuance, which was overruled. The jury was thereupon duly selected and sworn and he was then duly arraigned. When called upon to plead, he pleaded guilty. The court fully complied with the statute regulating that subject (arts 565 & 6). The judgment of the court states that when the defendant in person pleaded guilty, “Thereupon the said defendant was admonished by the court of the consequences of said plea, and the said defendant persisted in pleading guilty; and it plainly appearing to the court that the said defendant is sane, and that he is uninfluenced in making said plea by any consideration of fear,.or by any persuasion, or delusive hope of pardon prompting him to confess his guilt, the said plea of guilty is by the court received and here now entered, of record upon the minutes of the court as the plea herein of said defendant.” And thereupon the trial proceeded before a jury with the result as stated.

The record shows that at sometime after this his attorneys filed a written plea which says: “Now comes the defendant R. L. Taylor by his attorneys and files in this behalf his plea of-guilty herein, and in this connection further pleads that at the time of the commission of said offense the said defendant R. L. Taylor was insane and was not mentally capable of knowing the nature and quality of the acts committed by him.” This is not signed by appellant but signed by his attorneys alone.

The record further shows that said written plea was not called to the attention of the court nor to that of the State’s attorney and neither the court nor the State’s attorney knew that ..said written plea had been filed, and that it was never presented or called to the attention of the jury.

It will be noted that even this plea filed in this way by his attorneys made no claim or intimation that he was then insane but solely it claimed that he was insane on March 26th., when he shot, attempted and intended to kill his wife—quite a different thing.

Appellant contends that because of the filing of said written plea by his attorneys that that shifted the burden of proof from him to the State to show he was sane at the time he shot and tried to kill his wife, and as the State did not affirmatively prove that he was sane at that time that he was entitled to an acquittal, and because the court refused to' grant him a new trial on that ground that he is entitled to a reversal. Of course, if he had been insane at the time he shot his wife and had proved it to the satisfaction of the jury on the trial then in law he would not have been guilty of assault with intent to kill his wife, and would have been entitled to an acquittal but the record shows that he introduced no proof whatever to establish his insanity at that time or at any other time. It is so well settled by the very many decisions of this court, that when an accused seeks an acquittal because of insanity at the time he committed the offense, the law presumes he was sane and imposes upon him the burden of showing that he was insane, and does not require the State to prove under any such circumstances that he was sane, that it is unnecessary to cite these decisions.

This is quite a different thing from that presented to the judge when an accused, arraigned for trial, wants to plead guilty. When that question is presented to the trial judge the law requires him to then and there satisfy himself that the accused is then sane and requires him to admonish the accused of the consequences of his plea of guilty and prohibits him from accepting such plea unless it plainly appears to him, the judge, that he is then sane and that he is uninfluenced in making such plea by any consideration of fear, or by any persuasion or delusive hope of pardon prompting him to confess his guilt. As shown, all this was thoroughly and completely done before the judge would receive the plea. Such matter is not to be, under any circumstances, submitted to the jury for it to determine these quéstions, but to the judge solely. No issue is made which a jury could try until either a plea of not guilty or a plea of guilty is made by the accused and entered by the court.

In Coleman v. State, 35 Texas Crim. Rep., 406, in discussing when an accused attempts to plead guilty the court must warn him, etc., and be satisfied that he is sane, through Judge Davidson, this court held: “In our opinion, however, this is a matter which must be presented to the court, and the court must make its findings thereon, and this must be entered of record in connection with the plea of guilty. These prerequisites to the validity of the plea, and the acceptance thereof by the court, are. indispensable, and must be made manifest of record. They cannot be supplied by inference, intendment or presumption. See Code Crim. Proc., Arts. 518, 519, 538; Saunders v. State, 10 Texas Crim. App., 336; Wallace v. State, id., 407; Frosh v. State, 11 Texas Crim. App., 280; Sanders v. State, 18 Texas Crim. App., 372.” In this case, as shown, all these matters were expressly found and entered of record by the judge, in the judgment of the court quoted above.

In Burton v. State, 33 Texas Crim. Rep., 138, appellant thereunder was indicted for murder, convicted of murder in the second degree and his punishment assessed at twenty-five years in the penitentiary. In that case it was shown that appellant had agreed with the district attorney to plead guilty of murder in the second degree on condition that the State would introduce no evidence other than that of the sheriff. When this was called to the attention of the court, the court refused to permit the plea under such conditions, but stated he would admit the plea of guilty to the charge of murder and that the jury should determine whether it was first or second degree, and the punishment to be inflicted. The judgment was attacked by affidavits to the effect that the defendant therein was of weak mind and scarcely responsible for his acts; and by the affidavit of a doctor to the effect that from an examination of defendant, as well as his personal knowledge, he believed him to be of such weak mind as to render him irresponsible for his act, and sought a new trial and reversal on that sort of showing. The trial judge therein made an affidavit to the effect that before he received the plea of guilty he explained the result of such plea to him and properly admonished him and satisfied himself from an examination of the defendant alone at the time that he was sane and was making the plea of guilty from no influence of fear or persuasion or hope of pardon. The judgment therein as to these matters was exactly the same as it is in this case. This court through Judge Davidson, in that case held that the court’s action was in accordance with the statute and sustained the conviction. See also Miller v. State, 58 Texas Crim. Rep., 600; Doans v. State, 36 Texas Crim. Rep., 468; Evers v. State, 32 Texas Crim. Rep., 283, and other cases.

In his brief appellant states that the grounds upon which he asks a reversal are stated in his motion for new trial and that his main reliance is on that motion. The State filed in writing a-contest of each and every ground of said motion. One ground of the motion was that the court erred in receiving appellant’s plea of guilty and at the same time receiving his plea of insanity filed herein. In contest and denial of that ground the State specifically alleged “that when the indictment was read that defendant’s counsel and himself in person both stated that it was his desire to plead guilty and that after the court had admonished defendant of his rights and of the consequences if he should enter such plea, the defendant still persisted on entering a plea of guilty, which was done in due form and as required by law,” and further “that although the defendant, by his attorneys, thereafter filed a written plea with the clerk of this court stating that he would plead guilty and further plead that at the time of the commission of said offense the said defendant was insane, that said written plea was not called to the attention of the court nor to the State’s attorneys, and that neither the court nor the State’s attorneys knew that said written plea had been filed in this cause . . . and that same was never presented or called to the attention of the jury.”

The record and judgment of the court showed that when that motion for new trial was presented to him on that, and all the other grounds he heard evidence thereon and after hearing the evidence overruled the motion. What evidence was heard by the court is not disclosed by the record. And this Court must presume, and has always presumed, that under such circumstances the evidence clearly justified and authorized the judge to so hold. The term of court at which .appellant was tried adjourned July 6th. There is no statement of facts purporting to give the testimony or any of it that was heard by the court in acting on this motion for new trial. And none anywhere in the record which shows what testimony the court heard when appellant pleaded guilty and when the court acted thereon and received said plea. The conclusions and findings of the court ah the time he received said plea is quoted above and contained in the order and judgment of the court receiving said plea. Appellant’s bill to the overruling of his motion for new trial was not filed in the court below until August 29th, nearly two months after the court had adjourned. (Reyes v. State, 81 Texas Crim. Rep., 588, 196 S. W. Rep., 533 where a great number of other cases are collated.)

One ground of the motion for new trial, and this is shown by a bill also, was the action of the court in overruling his application for a continuance and is complained of.

The allegations of appellant seeking a continuance was to the effect that two days after the indictment was filed he procured a subpoena for his sister Mrs. John Goff and her husband John Goff who lived in Sweetwater in Nolan County, requiring them to appear as witnesses at Anson in Jones County (where the case was to be tried) on June 4, 1917, and that subpoena was properly served on said two witnesses on June 2nd. Whether either or both of them then attended the court in obedience to that subpoena is not shown. Presumably they did not. No other subpoena was issued or served upon her to appear at any other time, nor is it averred that she was even notified to appear at any other time. In his second application for a continuance on account of the absence of his sister, Mrs. Goff, who, he alleged, was sick, he alleged that he expected to prove by her in substance that she was reared with him and had occasion to observe his mental condition from his childhood up and that up to about a year before the time he shot his wife, his mind appeared to be good and he appeared to be sane; that since said time, and just only a day or two befóre he shot his wife, she had occasion to observe him and he appeared at that time to be insane, and his mental condition in an unusually disturbed condition, which condition had existed several months previous to that occasion. That that occasion when she saw him was when he was on a visit to her in her home in Nolan County. In the State’s contest of this ground of appellant’s motion and his said second application for a continuance the State contended that the court’s action was correct because the facts are not set out in the application to what the witness, his sister, Mrs. Goff would have testified, it being stated in substance only that she would testify that defendant at the time appeared to be insane, etc. That this testimony by her would not have been admissible because it is not set out in said motion any acts, conduct or conversations of the defendant which were known to the' witness which would give her the right to testify to her conclusions as stated in said motion. (Burton v. State, 33 Texas Crim. Rep., 138.)

The case was tried on June 20th. The amended motion for new trial was not filed until July 3rd. It was heard by the judge on July 5th, No affidavit whatever by said witness is attached or made a part of the said motion or the record in any way that Mrs. Goff would even have testified what it is alleged she would in the way of her conclusions, nor is there any affidavit whatever from her detailing any of the acts, conduct or conversations of the appellant which would authorize her to express any opinion as to his insanity. Besides this, the statement of facts shows that many witnesses testified who had known him, some of them all of his life, others for many years, none of them for less than several years. Appellant did not attempt to make any proof by any of these witnesses that he was ever insane at any time or place. The whole of their testimony, where it bore on the subject at all, would show that he was sane and not insane. Nor did appellant .attempt to introduce on the trial any other witness or witnesses to testify to his claimed insanity at any time. The record further indicates that his sister, Mrs. Goff, had no opportunity, or the slightest, if any, to see or be with him so as to testify at all that he was insane at the time he shot and attempted to kill his wife. Upon the whole, the record in no way shows reversible error because of the court’s refusal to continue the case on his second application.

Appellant tried the case on the theory that because he had filed said written plea by his attorneys alone averring that he was insane at the time of the commission of the offense that shifted the burden of proof from him to the State to show that he was sane when he shdt his wife, and his special charges were asked and his objections to the court’s ■charge were predicated on that idea. As no evidence was introduced to show he was insane when he committed the offense, the court was not called upon to submit any such issue, and did not err in not submitting such an issue. This was an erroneous theory on his part and the refusal of his charges for a peremptory" instruction to acquit presents no error.

The case of Harris v. State, 76 Texas Crim. Rep., 126, 172 S. W. Rep., 975, cited and relied upon by appellant we think is wholly inap plicable. In that case, it is true appellant pleaded guilty but when the case was tried he introduced much testimony tending to show, if he did not show directly, that he was insane at the time he killed deceased therein. The court therein not only declined to submit the question of his sanity at the time he killed deceased, but on the contrary, notwithstanding all the testimony tending to show it, he peremptorily charged the jury that the appellant was sane. That was correctly held erroneous under the circumstances of that case.

The judgment is affirmed.

Affirmed.