Merritt v. State , 39 Tex. Crim. 70 ( 1898 )

Appellant was convicted of murder in the second degree, and his punishment assessed a confinement in the penitentiary for a term of five years; hence this appeal.

In appellant's first bill of exceptions he complains that the court acted improperly in admitting the testimony of T.F. Harrison, to the effect that, just before the killing, Joe Brown was over with him on the platform at Milsap, and went from there over to the blacksmith shop, and in connection with his going, stated that he said he was going from there either to get some water or draw some water, witness was not certain which. The objection urged to this testimony was that the statement was made in the absence of the defendant. In our opinion what he said at the time of going over to the shop was a part of the res gestae of that act, and was admissible. But, if it be conceded that it was not, we fail to see how its admission could injure the appellant. There is no pretense anywhere in the record that deceased was pursuing Merritt or seeking an encounter with him. Nor is there any pretense that he went over to said shop for any other than an innocent purpose.

We also believe that it was admissible to show on the re-examination of the witness Harrison by the State that he was opposed to mob law, and had always used his influence to prevent mobs. This was in rebuttal of the attempt to show by this witness, on his cross-examination by the defendant, that he was one of a party who had undertaken to get up a mob to mob the defendant.

We fail to see it was admissible to prove by the witness McCall that defendant's wife, seven or eight, years before the homicide, had made complaint before him as a justice of the peace, in which she charged her husband with making an assault on her. There was nothing in the case that rendered this testimony admissible, and it was of a character to prejudice appellant's case before the jury.

Under the peculiar circumstances of this case, in our opinion it was admissible to prove, on cross-examination by the State of the witness J.R. Hollified, "that he had never heard of defendant being insane until after the homicide." There was a great deal of testimony introduced by the defendant tending to show that appellant was insane, and that this insanity was of long standing. The witness Hollified was a near neighbor of the appellant, and it was competent to show by him that he had never heard of the defendant being insane until after the homicide, as tending to show on the part of the State that the defense relied on was of recent fabrication and origin.

By bills of exceptions numbers 8, 9, 11, 12, 13, and part of 15 appellant presents the question as to competentcy of evidence to show that Joe Brown was regarded by the defendant as being at the head of a mob to kill him. This testimony was offered by appellant, in connection with other testimony from a number of witnesses, tending to show his insanity; that such insanity was in the shape of a delusion that a mob was after him to kill him, and that Joe Brown was at the head of the mob. It extended over a number of years, and these bills of exception show that proof was made on a number of occasions that appellant talked to them (witnesses) about a mob being after him, and on such occasions he became intensely excited and beside himself, and that they pronounced him insane on the subject of believing that a mob was seeking his life. In connection with their testimony as to his conversation about the mob being after him, and his conduct and condition on such occasions, it was offered to be proved by them that he stated that Joe Brown was at the head of the mob, and that he was at the bottom of the attempt to mob him. As a specimen of this character of testimony, we will quote from bill of exceptions number 13 as follows: "While the witness Jasper N. Haney was on the stand, after he had testified that he had known defendant for several years, and that he had received a letter about two months before the homicide from defendant requesting him to send up a United States marshal, that he was about to be mobbed, and that four or five days after said letter was received defendant rushed into Iris (witness') law office greatly excited, and stated a mob was after him, and that they were going to kill him (defendant), and asked for protection; and after said witness had testified that in his opinion defendant was not sane on the question of a mob, and that he would kill any one he fancied connected therewith, and would not know it was wrong — counsel for defendant offered to prove by said witness that when defendant rushed into his office as above stated, and in the same conversation above stated, the defendant claimed that Joe Brown, deceased, was the leader of the mob, and had organized it for the purpose of killing him." This testimony, in which the witness named Joe Brown as the leader of the mob, was excluded; and it will be seen, going through the statement of facts, that the court permitted the witnesses to testify as to all the facts of these conversations, leaving out the name of Joe Brown as the leader of the mob, merely referring to the leader of the mob as "a certain person." It has long been recognized that a delusion is a form of insanity. It is sometimes called "monomania;" that is, the subject may be sane on every other topic, but insane on some particular topic. Of course, it denotes an impairment or disease, of the mental faculties which may more or less less affect the mind generally. We quote from Mr. Wharton on this subject (1 Whart. Cr. Law, sec. 37): "The answer of the English judges on the special topic of delusion is as follows: 'The answer must, of course, depend on the nature of the delusion; but, making the same assumption as we did before, namely, that, he labors under such partial delusion only, and is not in other respects insane, we think "he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defense, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.' To the same effect speaks Chief Justice Shaw: 'Monomania may operate as an excuse for a criminal act' when 'the delusion is such that the person under its influence has a real and firm belief of some fact not true in itself, but which, if it were true, would excuse his act; as where the belief is that the party killed had an immediate design upon his life, and under that belief the insane man kills in supposed self-defense. A common instance is where he fully believes that the act he is doing is done by the immediate command of God, and he acts under the delusive, but sincere, belief that what he is doing is by the command of a superior power, which supersedes all human laws and the laws of nature.' " We gather from the authorities that a delusion need not be confined, as was formerly held, to the delusive belief of a fact which, if true, would afford a justification. But if the delusion was of such a character as to impair the mind of the person possessed thereof, to such an extent that the person was not able to discern the right or wrong of the particular act he was doing, and was induced to commit the particular act by the delusion, he would not be a criminal. Mr. Bishop, after stating the rule about as Mr. Wharton does, supra, uses this language: "This branch of doctrine should be cautiously received, for delusion of any kind is strongly indicative of a generally diseased mind, and doubtless sometimes, if not always, does in fact extend beyond the precise point we have supposed, whether perceptible to the casual eye or not." And he then proceeds to quote from Hadfield's cases. See 1 Bish. New Cr. Law, secs. 393, 394. See also Busw. on Insan., secs. 429, 430. Now, if delusion is a feature of insanity, and if a person overcome with such delusion does an act while under its influence for which the law would not hold him amenable, it is important that the exact facts and conditions and moving cause to such delusion be proved. The delusion of appellant in this case was not solely that appellant believed a mob was in pursuit of him, but that that mob was led on by a particular individual — Brown, the deceased. If Brown did belong to the mob, there would be much greater reason afforded why, under the spell of the delusion, appellant should have slain him. If, according to appellant's conception, Brown did belong to the mob, much more, if he were the leader of the same, would it appear that appellant's act in slaying Brown was the result of his insane delusion. The court, however, seems to have concluded that the insane delusion could be proved, and a most important feature omitted therefrom. That is, according to the court's idea, it was entirely competent to prove that appellant was deluded as to a mob in pursuit of his life, but it could not be shown in connection therewith who composed the mob. In the view we take of this question, we fail to see of what avail all the proof offered by appellant concerning the mob in pursuit of his life would be to him, if he was not permitted to show who composed that mob. The very essence of appellant's delusion was that the mob was led on by the deceased, if, he, indeed, was not the entire mob, and that under such belief he slew him; yet we have seen from the bills of exception above stated that appellant was denied this proof. In our opinion, this was material error on the part of the court.

Appellant, by his bill of exceptions number 14, shows that he introduced his wife and proved certain facts by her. The bill further shows that on cross-examination the State was permitted to show other and different facts, not germane or pertinent to those elicited on direct examination. Some of these facts elicited on cross-examination were of a damaging character, and calculated to greatly prejudice appellant before the jury. This was independent testimony, and the use of the wife as a witness against the husband, which was not admissible. See Jones v. State, 38 Texas Crim Rep., 87; Gaines v. State, 38 Tex. Crim. 202, and authorities cited. Nor was it permissible to lay the predicate by the wife of appellant as to matters about which she could not be cross-examined, in order to impeach her.

We believe that it was competent to impeach the witness White by showing that he had been indicted for forgery.

By bill of exceptions number 21 appellant objected to the testimony of Dr. Withers as an expert as to the sanity of appellant. The bill shows that Dr. Withers had been the family physician of defendant up to the year 1891, a period of ten years; that he had only seen appellant since that time once or twice, and then only casually. On this general statement he was permitted to give his opinion as to the sanity of appellant. We take it that the bill sufficiently shows an acquaintance and knowledge on the part of the witness to testify on that subject, but by a fuller examination of the witness on this subject the difficulty will no doubt be obviated.

We do not believe that it was competent for the deputy sheriff, McConnell, to testify that he heard the defendant testify in a certain case tried a few weeks before, and in that case he testified like a sane man.

No exception was reserved to the charge of the court on insanity, but in view of another trial we would observe that the charge of the court on this subject may be well enough as far as it goes, but it does not apply the law to the facts of the case. We think that the court should give the jury a charge on insanity as applicable to the facts proved. In this case appellant's proof tended to show that he was overwhelmed at the time of the homicide with an insane delusion that deceased was the leader of a mob that was seeking his life. If he was insane on that subject, and if, under that delusion, he was incapable of distinguishing right and wrong of the particular act he was doing, and he believed that in slaying Brown he was preserving his own life from the mob, then he was not criminally responsible, and the jury should be instructed, if they believe the homicide occurred under such circumstance, to acquit him. The judgment is reversed and the case remanded.

Reversed and remanded.