Carter v. State

• Decision Date: 01 January 1854
• Citation: 12 Tex. 500
• Parties: B. W. CARTER v. THE STATE.
• Court: Texas Supreme Court

12 Tex. 500

B. W. CARTER

v.THE STATE.

Supreme Court of Texas.

1854.

In appeals in criminal cases, ordinarily, the transcript commences with the indictment and proceedings thereon; and where it is contended that there is no record in the Court below of the return of the indictment into Court by the grand jury, the fact must be made to appear by the transcript. Quere? As to the effect, where it is made so to appear.

A prisoner is presumed to be sane, until the contrary is proved.

Intoxication is not insanity, and where it is voluntary can never afford an excuse nor even a palliation for crime; mania a potu or delirium tremens are species of insanity, and excuse unlawful acts, although the intoxication which caused them may have been voluntary. (Note 76.)

Involuntary intoxication may be a palliation, and under some circumstances an excuse for unlawful acts.

The question in cases of the plea of insanity is, whether the defendant was capable of distinguishing right from wrong, which capacity is necessary for the existence of a criminal intent; in cases of partial insanity, the question is whether the defendant was capable of distinguishing right from wrong, in the particular connection in which the unlawful act was done.

Appeal from Panola. Indictment for murder of William Mills. The killing occurred in the town of Pulaski, near a grocery, on the 3d of December, 1851. The prisoner had been drinking to excess for several days, and more or less for several weeks. On the day of the killing there were several persons in and about the grocery, drinking and playing cards. While the prisoner and one Dodson were playing cards, the latter said to the other, on some trivial occasion, that he, the prisoner, did not have a soul larger than a mustard seed. A bystander, who stated that he considered it in jest, remarked to the prisoner in the same spirit that if it were he, he would not take that. Thereupon the prisoner struck at Dodson, and a fight ensued between them, during which Mills stood by and declared that no one should interfere until one hollowed, and which ended in Dodson knocking the prisoner down with a piece of chimney timber by a blow on the head. After this the prisoner was ranting and raving about the premises with his gun, and by his appearance and manner caused some fear that he would injure some of the party, and from the testimony it seemed that two or three of the party were each apprehensive of an attack by the prisoner. At this time Mills remarked to Dodson that if he would give him a good whipping he would go home and behave himself. Mills and his brother-in-law, Baker, loaded a gun, and Mills picked up a two-pound weight and put it in his pocket. A short time before the killing, Mills took a bowie knife which was handy, and put it in his bosom. It did not appear whether the prisoner knew of these hostile actions on the part of Mills or not. The prisoner started and went a short distance down the hill from the grocery and shot off one barrel from his gun. Deceased proposed to Dodson to go down to him; Dodson refused to go, remarking that he might shoot. Deceased went, and as he approached the prisoner asked him whom he shot at. The prisoner replied he knew whom he would shoot. Deceased replied he would not shoot a deer; told him he was his best friend, to put down his gun and come in, and Dodson would treat. Deceased kept advancing; prisoner told him not to come any further or he would shoot, and presently did shoot, and inflicted the wound which caused death. The shot appeared to have been duck shot, and some of them were flattened against the two-pound weight which the deceased still had in his pocket. Several of the witnesses who took up the deceased testified that he had no weapons about his person. The prisoner was a quiet, peaceable man when sober, but troublesome and quarrelsome when drunk. There was an effort to prove that the prisoner had been rendered insane by excessive drinking and the blow on the head. There was in proof a vague remark of the prisoner, made soon after he was arrested, to prove an old grudge. The prisoner and the deceased had been near neighbors for a long time, and so far as everybody knew had always been friendly. The prisoner made no effort to escape. Verdict, guilty of murder in the second degree, and confinement in the Penitentiary for three years.

M. D. Rogers and S. M. Hyde, for appellant. The motion to arrest the judgment in this case, on the ground that the indictment upon which the defendant in the Court below was convicted, was not presented and returned into the said Court by a legal grand jury, ought to have been sustained. (Rainey v. The People, 3 Gilman, 71; 2 Virg. Cas., 527; Brown v. The State, 7 Humph., 155.)

L. D. Evans, also, for appellant, argued the case orally at the bar.

Attorney General, for appellee. The fifth assigned error “that the indictment was not returned into Court by a legal grand jury” is stated in the motion in arrest in the record, and clearly was designed only to call into question the legality of the grand jury, and not to question the fact that the indictment was returned, or was shown by the record to have been returned into Court by the grand jury. If the latter had been its object the appellant should have brought up the caption of the record.

WHEELER, J.

The ground relied on for a reversal of the judgment in the brief furnished the Court by counsel for the appellant is that it does not appear by the record that the indictment was returned into Court by the grand jury.

The record in this Court is a transcript of the indictment and the proceedings thereon had at the trial. It does not purport to contain, nor need it contain a transcript of the record of all the proceedings had in the District Court anterior to the trial. The absence in the record of the evidence of the bringing into Court of the indictment by the grand jury, therefore, does not disprove the existence of such record evidence in the Court below. If there was not such record the fact should have been made to appear by the transcript. Where all the proceedings in the case are not shown by the transcript, and the error complained of does not affirmatively appear, regularity in the proceedings will be presumed. (English v. The State, 4 Tex. R., 125.) The objection, it is conceived, is not supported by the record. The trial was at the same Term at which the indictment was found, and in the statement of facts it is said the indictment was returned into Court by the grand jury. There can be little doubt, therefore, that the fact did appear by the record. If the entry had not been made at the proper time, the omission might have been supplied by an amendment of the record in this respect, at any time during the Term, before the grand jury were discharged. And if there was such omission, this fact may account for the failure properly to reserve the point for review.

It is unnecessary to determine how far the objection, if supported by the record, could avail the defendant, where the indictment appears to have been filed as a record of the Court at the proper time, especially after the defendant has pleaded to the indictment. We have not access to the authorities on this subject cited by counsel. But in the case of the State v. Clarkson, (3 Ala. R., 378,) it was decided by the Supreme Court of Alabama that “An indictment found among the files of the Court, and recognized as an authentic paper, proves itself, when the question of authenticity is raised on an issue to a plea to the same indictment.” The Court said: “The fact to be proved, or rather disproved, was the authenticity of the indictment as a record of the Court. There always is, and...