Ex parte Hodges

• Decision Date: 25 June 1958
• Docket Number: No. 29927,29927
• Citation: 314 S.W.2d 581,166 Tex.Crim. 433
• Parties: Ex parte George Wallace HODGES.
• Court: Texas Court of Criminal Appeals

Page 581

314 S.W.2d 581

166 Tex.Crim. 433

Ex parte George Wallace HODGES.

No. 29927.

Court of Criminal Appeals of Texas.

June 25, 1958.

Harris E. Lofthus, George S. McCarthy, Amarillo, for appellant.

Wayne Bagley, Dist. Atty., Carlton B. Dodson, Asst. Dist. Atty., Amarillo, Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

On February 5, 1958, George Wallace Hodges was indicted for the murder of Jimmie Louise Gibson, his aunt. The indictment was returned in 47th District Court of Potter County. The offense was alleged to have been committed on or about January 21, 1958.

Being unable to employ counsel, Hon. Harris E. Lofthus, of the Amarillo Bar, was on February 12, 1958, appointed by the court to represent Hodges in the defense of the case against him.

On March 11, 1958, Hodges, by his court appointed counsel, filed motion for a special venire alleging that he expected to be ready for trial and moved that a venire be ordered to appear on April 14, 1958.

It was so ordered by the court on March 18, 1958.

When the case was called for trial the district attorney produced an affidavit made before him by Lawrence E. Gibson, the husband of the deceased Jimmie Louise Gibson, and Mrs. Jimmie B. Stephens, appellant's sister, stating that George Wallace Hodges 'is a person of unsound mind at this time and was a person of unsound mind at the time of the alleged commission of the offense charged against him (January 21, 1958).' Both affiants were witnesses for the State in the murder trial.

Appellant's counsel vainly protested the impaneling of a jury to pass only upon the issue of his sanity; stated that he had announced ready for trial on the indictment for murder without raising the question of insanity and was not raising such question in his defense or in bar of prosecution. He called attention to the fact that the defendant was presumed to be sane; that the burden of proof on the issue of insanity was on the defendant; that he did not intend to present any evidence to prove insanity and would object to any evidence being offered in an attempt to prove that Hodges was insane.

Counsel for appellant also directed attention to the fact that the affidavit was not sufficient to raise an issue of legal insanity such as would bar trial or constitute a defense.

Notwithstanding these matters, an order was entered transferring the case from the 47th District Court to the 108th District Court 'for trial of issue of sanity or insanity' and a jury was impaneled in the 108th District Court of Potter County to try the insanity issues.

When counsel for defendant Hodges declined to offer any testimony the court, over objection, permitted the District Attorney to offer the testimony of Dr. Reid, a psychiatrist. Dr. Reid expressed the opinion from his examination of Hodges and of his Navy medical records, that he was on January 21, 1958, and at the time of the trial, mentally ill; was of unsound mind and was suffering from schizophrenia, a serious mental illness, unclassified or paranoid type. No question was propounded to Dr. Reid concerning the defendant's competency to make a rational defense or to know that it was wrong to commit murder.

Having heard Dr. Reid's testimony, the jury, being charged on the right and wrong test for determining legal insanity, answered the two issues submitted to them and found that Hodges was insane on April 16, 1958, but that he was not insane on January 21, 1958.

Upon these findings, George Wallace Hodges was ordered committed to a State Mental Hospital.

Recognizing that no right of appeal lies from a judgment entered upon a preliminary trial on the insanity issue, application for writ of habeas corpus was presented and writ was issued by Judge E. C. Nelson, who presided at the insanity trial.

The application being heard and the evidence and proceedings before him being taken into consideration, Judge Nelson ordered that the application be dismissed, and that George Wallace Hodges be remanded to custody.

This is an appeal from the order remanding appellant George Wallace Hodges to custody to be committed to a State Mental Hospital

We are aware of no precedent for the consideration by this Court of the attack upon the judgment rendered in the preliminary trial, and must hold that unless such proceeding is void the judgment may not be attacked by habeas corpus. To hold otherwise would be equivalent to entertaining an appeal. It is settled that such a judgment is not appealable. Boehme v. State, 159 Tex.Cr.R. 358, 264 S.W.2d 118.

It appears to be the State's position that Acts of the 55th Legislature, p. 1413, Ch. 486 (including present Art. 932b Vernon's Ann.C.C.P.), which became effective January 1, 1958, changed the law as it had previously existed and not only permits but makes it the duty of the district attorney and the court to conduct a preliminary trial on the issue of the defendant's insanity when any person makes affidavit that the defendant charged with a criminal offense is a person of unsound mind. We do not so construe the new statute.

Art. 34 Vernon's Ann.P.C. provides in part 'No person who becomes insane after he committed an offense shall be tried for the same while in such condition.'

It has long been the holding of this Court and its predecessors that under this provision of Art. 34 P.C. an accused, upon demand timely made, supported by affidavit, has the right to have a jury impaneled in advance of his trial for the offense to determine whether he is mentally competent to make a rational defense. Guagando v. State, 41 Tex. 626; Witty v. State, 69 Tex.Cr.R. 125, 153 S.W. 1146; Ramirez v. State, 92 Tex.Cr.R. 235, 241 S.W. 1020; Soderman v. State, 97 Tex.Cr.R. 23, 260 S.W. 607; Ray v. State, 110 Tex.Cr.R. 31, 7 S.W.2d 93; Pickett v. State, 113 Tex.Cr.R. 395, 22 S.W.2d 136; Norford v. State, 116 Tex.Cr.R. 533, 34 S.W.2d 290; Chapman v. State, 136 Tex.Cr.R. 285, 124 S.W.2d 112; Rice v. State, 135 Tex.Cr.R. 390, 120 S.W.2d 588; Amos v. State, 155 Tex.Cr.R. 488, 237 S.W.2d 305.

It is clear that under the authorities cited the preliminary trial is to be granted 'if desired by the [defendant]', (Ramirez v. State, supra [92 Tex.Cr.R. 235,...