Cadena v. State

• Decision Date: 28 March 1923
• Docket Number: (No. 7533.)
• Citation: 251 S.W. 225
• Parties: CADENA v. STATE.
• Court: Texas Court of Criminal Appeals

251 S.W. 225

CADENA v. STATE.

(No. 7533.)

Court of Criminal Appeals of Texas.

March 28, 1923.

Rehearing Denied May 23, 1923.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Frank Cadena was convicted of murder, and he appeals. Affirmed.

J. M. Woods and Ed. Haltom, both of San Antonio, for appellant.

D. A. McAskill, Dist. Atty., W. S. Anthony, Asst. Dist. Atty., W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Bexar county of murder, and his punishment fixed at death.

Appellant complains of the refusal of the trial court to allow him to ask all the jurors, if they should be taken on the jury and after the evidence was all in there should be in their minds a reasonable doubt as to whether or not defendant was sane or insane, would they be willing to give him the benefit of the doubt and find him insane? As we view the matter this question was so framed as not to present an issue; "a reasonable doubt as to whether or not defendant was sane or insane," presents the matter so as to make it impossible to determine if the doubt inquired of be as to sanity or insanity. The use of the expression "whether or not" further adds to the confusion of the question. It has never been the rule in this state that sanity must appear beyond a reasonable doubt. Hurst v. State, 40 Tex. Cr. R. 387, 46 S. W. 635, 50 S. W. 719; Stanfield v. State, 50 Tex. Cr. R. 69, 94 S. W. 1057; McCullough v. State, 50 Tex. Cr. R. 132, 94 S. W. 1056. Sanity is presumed until the contrary is made to appear, and this is one of the issues in which the burden shifts to the accused, who interposes the defense of insanity, and it is held that he must prove it by a preponderance of the testimony. King v. State, 9 Tex. App. 515; Fisher v. State, 30 Tex. App. 509, 18 S. W. 90; Fults v. State, 50 Tex. Cr. R. 503, 98 S. W. 1057; Carlisle v. State (Tex. Cr. App.) 56 S. W. 365.

As we understand this record, an effort was made at interposing the defense of insanity, but no witness who knew appellant prior to the homicide testified to his belief that he was insane at the time of its commission. Appellant's brother and his sister were witnesses in his behalf, and neither was asked relative to their opinion as to his sanity or insanity, or whether he knew it was wrong to kill a human being. It was suggested by the defense that appellant was a marihuana smoker and that from the effects of the use of this drug he had developed a homicidal mania. It was in testimony by Dr. Dorbandt that the use of marihuana in large or excessive quantities would produce a state of mind similar to delirium tremens, and he said that, if appellant was under the influence of said drug at the time of the homicide, in his opinion appellant would not know the right or wrong of the act charged against him. To show that appellant was under the influence of said drug, his sister testified that, during the night preceding the homicide, appellant coughed and complained much and smoked a great deal, and that she thought he smoked Bull Durham tobacco, though she did not know the odor of such tobacco; that what he smoked smelled very bad. Another witness testified that about four days before the killing he spent the night with appellant, and that the latter smoked cigarettes that did not look or smell like good tobacco; that it looked and smelled like marihuana; that about 15 years before appellant had asked this witness to get him some marihuana. Another witness testified that on a date not given he worked with appellant and saw appellant smoking and afterward acting queerly, and that he also saw him throw away a partially smoked cigarette which witness got and examined, and it was marihuana.

In this condition of the record appellant placed on the stand Dr. Berry, who testified that he had observed the effects of marihuana use on persons. The facts attending this homicide were then stated to Dr. Berry, as well as the testimony of appellant's witnesses as above detailed, and he was then asked, assuming said testimony to be true, would he conclude therefrom that the cigarettes smoked by appellant on the night preceding the homicide were marihuana or not. The state objected to this testimony, and to the court's refusal to allow same a bill of exceptions was reserved. We are cited to no authority and know of none that go to the extent of holding such testimony admissible. The doctor as an expert could state what condition of the mind would follow the use of marihuana. The fact of the use of such drug, and the amount and quantity of such use, could be proven by witnesses who knew such facts, but it seems to be the rule that expert opinions must be limited to matters of science, skill, trade, and the like, and will not be allowed to usurp the province of the jury on matters of fact of which they are made the judges by our laws. Hunt v. State, 9 Tex. App. 166.

There is nothing in the proposition that the state was allowed to introduce the confession of appellant as part of its rebuttal testimony, even though the appellant only introduced in his behalf while developing his side of the case, testimony bearing on his use of marihuana as affecting his mental condition. The confession of appellant, made on the day of the homicide, was as follows:

"My name is Frank Cadena. I live at 1112 Saunders avenue. About 3 o'clock this afternoon I was sitting talking to Paulita Jiminez, the girl I shot three times, at the above address, and I understand from the detectives, is dead. I killed her because I was jealous of her and loved her too much. We had not had any fuss or quarrel. This all happened in Bexar county, Tex., this 14th day of April, 1922.

                  "[Signed]                     Frank Cadena
                "Witnesses:               James M. Crow
                                         "Anton Saladino
                                         "W. L. Schleshinger."
                

Some time later appellant made another confession, stating that he had not told the full truth of the matter at first, and he then made the following statement:

"Voluntary statement of Frank Cadena. I, Frank Cadena, being first duly warned by J. A. N. Flores, the person to whom this statement is made, to the effect: First, that I do not have to make any statement at all. Second, that any statement made by me may and will be used in evidence against me in the trial of the case concerning which this confession or statement is made, do hereby voluntarily state as follows: My name is Frank Cadena. I live at 1112 Saunders avenue. On April 14, 1922, about the hour of 3 o'clock p. m., while I was sitting talking with Paulita Jiminez, I pull out a gun and shot her three times. I shot her because I loved her. About a month ago I went to Laredo, Tex., trying to forget her. I remained at Laredo, Tex., for one day. I had been living with her and wanted to forget her, because I could feel that I was giving in, and I was about forgetting my wife. I loved Paulita and I wanted to forget her; first thing I knew I fell in love with her. She was my sister-in-law. That is why I wanted to forget all about her. We had no fuss or quarrel at the time of the shooting. She asked me on several times not to quit her, as she could not stand it; my wife is at present in the hospital.

                  "[Signed]                 Frank Cadena."
                

Either or both these confessions were entitled to go before the jury, not only as evidence of appellant's guilt of the crime, but as rebutting the theory of a homicide committed in a state of insanity.

The language of the state's attorney, as used in his argument set out in bill of exceptions No. 5, is not deemed by us so foreign to the facts as to be erroneous. The matters stated by appellant in his second bill of exceptions, supra, appears to justify such argument.

There is serious complaint of the fact that, when the sheriff's force were sworn to bring in talesmen to complete the jury after the special venire was exhausted, they went to the room in the courthouse...