Batterton v. State

• Decision Date: 22 January 1908
• Citation: 107 S.W. 826
• Parties: BATTERTON v. STATE.
• Court: Texas Court of Criminal Appeals

107 S.W. 826

BATTERTON v. STATE.

Court of Criminal Appeals of Texas.

January 22, 1908.

Appeal from Grayson County Court; J. W. Hassell, Judge.

Jim Batterton was convicted of violating the local option law, and he appeals. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $100 and 60 days' imprisonment in the county jail.

There are several questions raised in the record, but the only one of sufficient importance to require attention is that raised by defendant's bill of exceptions No. 2, complaining of the general charge of the court that the burden of proof is on the defendant to show the insanity of the witness Strickland. The Assistant Attorney General has filed in the case a very able brief, which we adopt as the opinion of the court. It is as follows:

"There was but one witness for the state who testifies clearly and intelligently in a consecutive and narrative form to all the circumstances surrounding the purchase of the whisky from the appellant. There are a great number of questions raised in the case as to the sufficiency of the indictment and in regard to several special charges requested. The state, however, contends in this case that there is but one point raised in the case that requires attention, and this is covered in defendant's bill of exceptions No. 2, complaining of the general charge of the court that the burden of proof was on the defendant to show the insanity of the witness Strickland. Upon an inspection of the testimony of the witness Strickland as given in the trial of this case, there was nothing whatever to suggest his insanity. In detailing the particulars of the offense he gave a very clear and intelligent account of the same, and there was nothing in his testimony that would suggest to the court that the witness was incompetent or of unsound mind. The defendant offered several witnesses to prove that the witness Strickland was not of sound mind. The state in rebuttal offered several witnesses to show that he was of sound mind. The question here presented, perhaps, has not been decided by this court and is one of first impression.

"Mr. Elliott, in his work on Evidence (volume 2, § 750), says: `A witness who has mental disqualification is one who has not the capacity to receive, to record, and to recall correct impressions, and to testify intelligently concerning them.' So that, if the witness has these mental disqualifications, his testimony should be excluded. And in section 751 this language is used: `There is now no hard and fast rule making an insane person incompetent, as there seemed to be formerly; but much is left to the discretion of the court, to be exercised according to the nature, degree, and effect of the insanity and circumstances of the particular case. It is elementary that all persons are sane, and presumed to be sane and competent, until the contrary appears.' In section 752 Mr. Elliott says: `The opposite party must cause the incompetency on the ground of insanity to appear, and this may be shown by voir dire examination, or by outside testimony, or during the course of the witness' own testimony.' And in section 753 it is said: `The court decides as a preliminary question as to whether a witness is so insane as to be incompetent, yet the trial judge can permit him to testify, and leave it to the jury to reject the testimony if the witness is deemed incredible.' And Mr. Wharton, in his work...