Clinton v. State , 132 Tex. Crim. 303 ( 1937 )

In our original opinion we inadvertently stated that appellant did not testify. He did testify, claiming that he was so drunk that he had no recollection of being in the store. Our opinion has been corrected in the particular mentioned.

In his motion for rehearing appellant renews his complaint that the court did not charge on circumstantial evidence. The breaking of the glass in the door to the store was shown by positive evidence. The night watchman heard the glass break and he telephoned the sheriff. He and the watchman found appellant and his companion in the store. The following cases are direct authority upon the point that no charge on circumstantial evidence was called for under the facts. Montgomery v. State, 55 Tex.Crim. Rep., 116 S.W. 1160; Smith v. State,51 Tex. Crim. 427, 102 S.W. 406; Smith v. State,90 S.W. 638; Holland v. State, 45 Tex.Crim. Rep., 74 S.W. 765.

Appellant testified that he had been drinking all day preceding the burglary and was so drunk he did not remember going in the store or having been found there by the officers. Art. 36, P. C., provides as follows:

"Neither intoxication nor temporary insanity of mind produced by the voluntary recent use of ardent spirits shall constitute any excuse for the commission of crime. Evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in mitigation of the penalty attached to the offense for which he is being tried. When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was brought about by the immoderate use of intoxicating liquor, the judge shall charge the jury in accordance with the provisions of this article."

The court gave an appropriate charge under said article. Appellant objected to said instruction and in connection with the objection tendered a special charge which he insists should have been given in lieu of the one submitted by the court, or at least in connection therewith. The special charge requested would have instructed the jury that if at the time appellant entered the store he was in such a state of intoxication as not to be able to form a rational intent to steal, he should be acquitted. The requested charge was refused, to which appellant reserved exception. In support of his claim that the requested charge should have been given appellant relies upon Loza v. State, 1 Tex.Crim. Rep., and Reagan v. State,12 S.W. 601. The first case mentioned was decided prior to the enactment in 1881 of said Article 36 of the Penal Code. The Reagan case was decided in 1889. It is perhaps interesting to note that the same question was again before this court three times in 1892. The opinion in Lyle v. State, 31 Tex. Crim. 103, was written in June, 1892, by Judge Hurt, who also wrote in Reagan's case, which was followed in Lyle v. State. In October, 1892, the case of Kelley v. State, 31 Tex. Crim. 216, was decided. In that case the trial court gave a charge in substance the same as that here requested. Judge Simpkins writing for the court expressed views not in accord with those found in the Reagan and Lyle cases, supra. Judge Davidson concurred but Judge Hurt at that time noted his disagreement. In December of the same year the question was again presented in Evers v. State, reported in 31 Tex. Crim. 318. Judge Simpkins wrote for the court and gave the history which prompted the enactment of Article 36, P. C. The Loza, Reagan and Lyle cases, supra, were overruled in effect on the point at issue, though not specifically named. All judges were present and concurred in the opinion in the Evers case. Whatever difference of opinion may have theretofore existed among the members of the court appears to have been settled by the Evers opinion. The following cases subsequently decided are direct authority supporting the trial court's refusal of the special charge, some of the cases being on almost identical facts as to the state of drunkenness of the accused as is here claimed by appellant, and the instruction refused was in substance the same as the charge here sought. See Doyle v. State, 59 Tex.Crim. Rep., 126 S.W. 1131; Stoudenmire v. State, 58 Tex.Crim. Rep., 125 S.W. 399; Carpenter v. State, 108 Tex.Crim. Rep., 300 S.W. 83.

Other questions suggested in appellant's motion for rehearing were disposed of originally and are not thought to require further discussion.

The motion for rehearing is overruled.

Overruled.