Carr v. State

• Decision Date: 28 January 1888
• Citation: 7 S.W. 328
• Parties: CARR v. STATE.
• Court: Texas Court of Appeals

Page 328

7 S.W. 328

CARR v. STATE.

Court of Appeals of Texas.

January 28, 1888.

Appeal from district court, Red River county; D. H. SCOTT, Judge.

Arthur Carr, a colored boy over 9 but under 13 years of age, was tried for burglary. The witnesses for the state testified that he was unusually intelligent for his age, being able to read and write well. He confessed to the city marshal, being properly cautioned as to the effect, that he entered the store in which the burglary was committed, being threatened by another person that if he did not, his head would be blown off. This latter portion of his testimony was contradicted. Defendant was convicted and sentenced to two years in the penitentiary. Defendant appealed.

Sims & Wright, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

At the time of the commission of the offense, the evidence shows that the defendant was over 9 but under 13 years of age. His non-age being established, the burden devolved upon the state, in order to subject him to punishment, to prove that at the time he committed the offense, if he did commit it, he understood the nature and illegality of the act. Proof that he knew the difference between good and evil, or that he was possessed of the intelligence of ordinary boys of his age, does not fill the requirements of the law. It must be shown that he had sufficient discretion to understand the nature and illegality of the particular act constituting the crime. It is not required that proof of discretion should be made by direct and positive testimony. In most instances, circumstances of education, habits of life, general character, moral and religious instructions, and oftentimes the circumstances connected with the offense charged, will be sufficient to satisfy the jury that the defendant had the discretion required to render him responsible for the crime. Willson, Tex. Crim. Laws, §§ 71-74. On the trial of this case the court, over the objections of the defendant, permitted several witnesses to state their opinions as to the discretion of the defendant, and these rulings of the court are presented for revision by proper bill of exception, and insisted upon as error. The precise question thus presented has never been directly adjudicated by the courts of last resort in this state. A familiar general rule of evidence is that witnesses can only speak as to facts, and cannot be permitted to state their belief or opinions. But to this general rule there are well-settled exceptions, one of which is that where the issue is as to the sanity of a person, even witnesses who are not experts are permitted to state their opinions and conclusions upon the facts to which they testify. Willson, Tex. Crim. Laws, § 87. See, also, as to other exceptions, Cooper v. State, 23 Tex. 331; Whart. Crim. Ev. §§ 459, 460; Rosc. Crim. Ev. (7th Ed.) 143, 144. Should the exception which applies where the issue is sanity apply in this case? We can see no good reason why it should not. In the two ca...