Morris v. State , 96 Tex. Crim. 63 ( 1923 )

The appellant, with his mother and two sisters, resided upon a tract of land which had been purchased by Oliver Marshall, the deceased. After buying the land, a new rental contract was made with appellant's mother. The appellant was twenty-one years of age. Marshall took possession of land in the same tract, and some of the buildings were used in common. The appellant regarded Marshall as officious in his interference with the part of the land which was in possession of the appellant and the members of his family. Marshall rode over the place at various times and complained that the fence posts were destroyed. He also made excessive use of the barn. When the appellant went after water he often saw Marshall, who complained of the appellant's failure to destroy the Johnson grass, the burning of fence posts and other shortcomings on appellant's part. Appellant used this language: "Some of the neighbors around here let me have signs that that was none of Mr. Marshall's business, and let me know that I had either to kill him or he would kill me. That was a Mexican named Pete."

Appellant borrowed a shotgun, sold chickens and with the proceeds bought shells, fired the gun to test it and see if it would kick, examined the post into which the shots were fired, and then waited for some three hours until Marshall appeared. When Marshall passed him with a bucket of water in each hand, appellant fired and killed him. After the shooting, appellant went to his home and was advised by a Mexican that he had better leave. This he did, but was later arrested in the neighborhood at the home of a relative. These matters come from the appellant's confession, sufficiently corroborated.

There was testimony that the appellant had talked in his sleep about seeing Marshall and that he was afraid to sleep in his bedroom or alone. There was other testimony to the effect that the appellant had complained of Marshall's conduct.

In connection with the usual and approved charge submitting the issue of insanity, the court embraced in his charge, this instruction:

"Whether the insanity be general or partial, whether continuous or periodical, the degree of it must have been sufficiently great to have controlled the will of the accused and to have taken from him the freedom of moral action, at the time of the commission of the act. Where reason ceases to have dominion over mind proven to be diseased, it then reaches the degree of insanity where criminal responsibility ceases and accountability to the law, for the purpose of punishment, no longer exists.

Whether that degree of insanity existed in the defendant at the time of the alleged crime, is the important question on this issue. If it is true that the defendant took the life of the deceased, and at the time the mental and physical faculties were beyond the control of the defendant, or if some controlling mental or physical disease was in truth the acting power within him, which he could not resist, and he was impelled without intent, reason, or purpose, he would not be accountable to the law. If, on the other hand, his mind was sufficiently sound to be capable of reasoning and knowing the act he was committing to be unlawful and wrong, and knowing the consequences of the act, and had the mental power to resist and refrain from its commission, his plea of insanity would not avail him as a defense.

It is an essential ingredient of murder that the person, to be guilty of that crime, must be one of `sound mind and discretion'; the meaning of which is, that he must have capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act he is then doing. Although a man may be laboring under partial insanity, if he still understands the nature and character of his act, and its consequence; if he has a knowledge that it is wrong and criminal, and mind sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, such partial insanity is not sufficient to exempt him from responsibility for his criminal act. But if the mind was in a diseased and unsound state, to such a degree that for the time being it overwhelms the reason, conscience and judgment, and the defendant in committing the crime acted from an irresistible and uncontrollable impulse, then it would be the act of the body, without the concurrence of the mind. In such case there would be wanting the necessary ingredient of every crime; the intent and purpose to commit it."

In view of the manner in which the court instructed the jury, it is conceived that there was no error in refusing to give the special charge on the subject of monomania. In so far as the evidence suggested that issue, it was sufficiently covered by the main charge. The bill fails to disclose that the special charge was presented before the jury was instructed and might be ignored for that reason. However, in view of the extreme penalty, it has been considered. If the appellant was sane upon all other subjects, the fact that he had a delusion that the deceased was an enemy and might at some time kill the appellant or some member of his family, such delusion would not excuse the killing of the deceased at a time when he was doing nothing indicating a present intent to injure the appellant, and when his situation was such as precluded the idea that he had any immediate design to injure him. In other words, if appellant's sanity was partial and consisted merely in a delusion such as that above described and was in other respects sane, his responsibility for his acts is to be considered as though the facts which in his delusion seemed to be real, were, in fact, real. See Merritt v. State, 39 Tex.Crim. Rep., in which is found this quotation:

"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.'"

A motion to continue the case was made to secure the attendance of several witnesses. The offense took place on the 10th of August. Appellant was then incarcerated and remained in jail until the date of his trial — December 5th. The witnesses had been inmates of the jail during the appellant's incarceration. Victoria County was given as the residence of two of them, the town of Yoakum in DeWitt County for one and Calhoun County for the other. A subpoena was applied for with sufficient diligence after the indictment. It was returned on the 5th of December, but none of the witnesses were served. The court in qualifying the bill states that he made inquiry in open court with reference to the absent witnesses and learned from the officers that after diligent search no information could be obtained with reference to the witnesses. The testimony expected of each of them was in substance the same, namely, that they had been in the same jail with the appellant and had observed his conduct and had noticed certain peculiarities with reference to it, among other things, the frequency and peculiar manner in which he would wash his hands, his failure to dry them, his picking his finger nails, his manifestation of solicitude upon the discovery of cobwebs or dust upon his hands, his mumbling to himself, his neglect to change his clothes, his smoking to excess when he had tobacco, and his practice of masturbation. Based on these facts, an opinion that appellant was insane would have been given. With reference to each of these witnesses, the averment is that "the witness has since the 11th day of August, A.D., 1922, been confined in the county jail at Victoria, Texas, in the same enclosure with the defendant herein, Ewell Morris." That the witnesses had not remained in jail during all of the intervening time is made definite by the investigation certified by the trial judge.

There is a mass of testimony concerning the life, habits and peculiarities of the appellant, the statement of facts containing over 200 pages of typewritten matter, being in the main devoted to the issue of insanity. The action of the trial judge implies the conclusion that there was no probability of securing the attendance of the witnesses by a postponement or continuance, or that if present, there was a probability that their testimony would produce a different result. In forming this conclusion, we are not prepared to say that the trial judge abused his discretion; nor can we say, in the light of the evidence adduced, that the learned trial judge, in denying a new trial, exceeded the limits of the discretion vested in him by law.

The motion is overruled.

Overruled.