Craven v. State

• Decision Date: 29 November 1922
• Docket Number: (No. 7450.)
• Citation: 247 S.W. 515
• Parties: CRAVEN v. STATE.
• Court: Texas Court of Criminal Appeals

247 S.W. 515

CRAVEN v. STATE.

(No. 7450.)

Court of Criminal Appeals of Texas.

November 29, 1922.

Rehearing Denied January 31, 1923.

Appeal from District Court, Shelby County; Chas. L. Brachfield, Judge.

Herbert Craven was convicted of manslaughter, and he appeals. Affirmed, and motion for rehearing overruled.

D. M. Short & Sons, of Center, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Shelby county of manslaughter, and his punishment fixed at 5 years in the penitentiary.

The indictment was for the murder of Bennie or Benie Young. From the stenographic report of the testimony, it appears that the witnesses spoke of deceased as Benny Young. One witness testified that deceased told him his name was Bennett Young. The name of the injured party, as alleged in the indictment, and that attributed to him by the witnesses, seems idem sonans.

Our inference from the record in its present condition would be that special charges Nos. 2 and 3 were given by the trial court. Special charge No. 4 appears to have been refused, but there is nothing on the bill as same appears in the record to indicate that such refusal was objectionable to the appellant, or that he reserved any exception to such action of the court below; nor does there appear any bill of exceptions complaining of the refusal of such charge. This court holds that, where there is nothing in the record either on or a part of the special charge and certified to by the court below, or in a separate bill of exceptions setting forth that an exception was taken to the refusal of the special charge, this court will have nothing before it for consideration in regard thereto. Nichols v. State (Tex. Cr. App.) 238 S. W. 232; Fry v. State, 86 Tex. Cr. R. 73, 215 S. W. 560; Reese v. State (Tex. Cr. App.) 249 S. W. ___, opinion Nov. 29, 1922.

Complaint is made of the manner in which the issue of insanity was presented. We have examined the statement of facts and would be in doubt as to there being testimony sufficient to raise the issue, but the trial court seemed to think it necessary and therefore gave special charge No. 2, prepared by the appellant's counsel, and which seems to us a sufficient presentation of the law applicable to this issue.

Finding nothing in the record to call for a reversal, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The appellant renews his complaint of the failure of the court to instruct the jury upon the law of insanity.

Upon a re-examination of the record, this court has concluded that the condition of the record is such as to present the question for review. As prepared, the record is to some degree confusing, which accounts for this court declining to review the matter upon the original hearing.

We give a synopsis of the evidence relied upon to present the issue. The appellant was 19 years of age. His mother said that she had tried to teach him his letters and to send him to school; that she had him 4 or 5 years, and, that when he left her father's, she tried to put him into school, but he could not learn; that he never learned his alphabet nor to count any more than a 5 year old child.

The witness Bryan said that the boy had worked for him, and had done plowing, hoeing, and farm work; that when he was sent off to work, the witness had to go with him; that he would not do anything if sent alone.

Appellant's grandfather, a negro, 65 years of age, testified that he kept the boy until he was about 14 years of age and sent him to school off and on for several years; that he learned nothing at school; that he did not know his letters, and could not count as much as to 100; that he did not know how to do things except when told and shown; that when he went to the field to plow, unless some one went with him, he would do nothing and was liable to tear up the plow; that he was weak-minded and could not remember the day of the week, month, or year; that he requested the witness to let him go back to his father and mother; this he did when the appellant was 14 years of age, and that since then the witness did not know what he did; that he called him weak-minded.

The law forbids the punishment of one for an act done in a state of insanity. Penal Code, art. 39. The presumption of sanity obtains and must be overcome by the preponderance of evidence The test in this state is whether the accused had the capacity to distinguish between the right and wrong of the particular act in question. Clark v. State, 8 Tex. App. 359; Vernon's Texas Crim. Stat. vol. 1, p. 18, and cases collated in note 1; Wharton's Crim. Law, vol. 1, § 50, also section 404, p. 561. Unless there was evidence of insanity in its legal sense, there was no issue upon that subject for the jury to decide. It...