Guagando v. State
| Decision Date | 01 January 1874 |
| Citation | 41 Tex. 626 |
| Parties | ANDREAS GUAGANDO v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Guadalupe. Tried below before the Hon. J. P. White.
Andreas Guagando was convicted for the murder of Salome Fuentes, in Guadalupe county, on the night of November 9, 1873.
After the defendant's application for continuance had been overruled and a jury selected, his counsel presented to the court the affidavit of Kossuth Fuentes, that the defendant was then insane, and asked leave to file a plea suggesting insanity, based on the affidavit, and that the trial be postponed until the question of insanity could be determined.
This application was refused for reasons stated at length by the judge in the bill of exception taken by defendant's counsel. The reasons given for the refusal were the following:
“1. Because it appeared to the court that the party making the affidavit was a stranger (a Mexican) in the country, and unknown to any citizen of Guadalupe county.
2. Because, when the case was called for trial at 9 o'clock on the morning of the day of trial, the defendant, after his motion for a continuance had been overruled, had selected a jury, the jury had been impaneled, the defendant had been arraigned, and pleaded not guilty, and at the request of counsel for defendant, the case was then postponed until 2 o'clock p. m., to enable the counsel to consult with their client and his witnesses. At 2 o'clock p. m., when the case was again called, this application was made.
3. Because it appears that the defendant had been indicted December 8, 1873; that he had been arrested March 16, 1874; that on the 7th day of July, 1874, counsel had been assigned defendant; that on July 11, 1874, a special venire had been ordered; that on July 17, 1874, a nolle prosequi was entered in that case because of a misnomer of the deceased; that a second indictment was returned on the 16th July, 1874; that the same attorney who represented defendant in his first case appeared as his counsel in the second, and asked that additional counsel be assigned, which was done.”
It was further stated by the court, in refusing the application, that the question of insanity would be tried in case the defendant was convicted before a judgment would be rendered on the verdict.
The defendant was found guilty of murder in the first degree. A jury was afterwards sworn to determine the question of defendant's sanity at the time of the trial, &c. Six non-professional witnesses, who knew the prisoner well, testified to their belief that he was periodically insane, and that he was then insane. They testified to the effect that he was a Mexican of good family, and of more than ordinary culture; that his insanity was indicated by a tendency to be alone; that on such occasions he would not recognize his most intimate friends; would do without food for a long time, and would walk incessantly, making sudden and unnecessary journeys, walking to Mexico, &c. (The testimony of the State disclosed that for four hours preceding the homicide the defendant was engaged in walking to and fro in front of a house where a dance was progressing, after which, without a quarrel or known cause for strife, he stabbed the deceased and killed him.)
Four physicians were examined as experts, who seem to have had access to the prisoner for one hour and a half. Their testimony will be found sufficiently stated in the opinion.
No brief of appellant's counsel received.
George Clark, Attorney General, for the State.
Appellant was indicted, charged with the murder of Salome Fuentes, and has appealed from a judgment of murder in the first degree.
The several bills of exception, motion for a new trial, and the assignment of errors, present the questions on which a reversal of the judgment of the District Court is asked.
The first assignment of error, that “the court erred in overruling defendant's motion for a continuance,” cannot be sustained. The affidavit for a continuance states that the residence of the witness, whose absence was the alleged ground of continuance, was unknown, and that attachments had issued to Bexar and Wilson counties. It was not stated even that he was supposed to be in either of these counties. Neither was it stated when the attachments had issued, or when applied for. The affidavit further stated “that said witness cannot be found in Guadalupe county, where he is supposed to reside,” but omitted to state that a subpœna had issued to Guadalupe county for this witness. The bill of exceptions No. 1 shows that this witness had been served with a subpœna in Guadalupe county, a short time before, to testify on behalf of defendant on this identical charge of murder, under an indictment which had been set aside for a misnomer. The affidavit not showing due diligence, the motion for a continuance was properly overruled.
The second assignment of error is, that “the court erred in first refusing to consider the defendant's plea of insanity before the trial on the indictment for murder.” The bill of exceptions taken to the refusal of the judge to permit the plea of insanity to be filed, and the action of the court and counsel on this subject, show a misapprehension of the law on this question. The statement or explanation in bill of exceptions No. 2, that the person who made affidavit to the insanity of defendant was a stranger, and unknown to any of the citizens of the county, means doubtless that he was unknown to those in court or such citizens as they may have conversed with on that subject, and was not a sufficient reason to refuse the filing of the plea of insanity, when the question was presented by the counsel for the accused.
The affidavit was not at all necessary. Art. 781 and the ten succeeding articles of the Code of Criminal Procedure, under some of which the court seems to have acted after the conviction of appellant, do not constitute the rule which applies before the trial on an indictment. They relate to and are made for the government of the court on a question of insanity presented on behalf of a defendant after conviction or judgment. Art. 781 of the Code of Criminal Procedure declares: “If it be made known to the court, at any time after conviction, or if the court has good reason to believe a defendant is insane, a jury shall be impaneled to try the issue.” Art. 782 declares that: “Information to the court as to the insanity of a defendant may be given by the written affidavit of any respectable person, setting forth that there is good reason to believe that the defendant has become insane.”
The question, however, of present insanity is entirely distinct from the question of insanity raised after conviction or judgment, and to which art. 781 and succeeding articles of the Code of Criminal Procedure have reference, and should have been determined before trial on the indictment.
The statement that the cause was called for trial at 9 o'clock a. m. on the morning of the day of trial; the defendant's motion for a continuance heard and overruled; that a jury had been selected and impaneled, the defendant arraigned, and a plea of not guilty entered, and the...
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