Hare v. State

• Decision Date: 15 July 1970
• Docket Number: No. 42786,42786
• Citation: 460 S.W.2d 124
• Parties: Roy David HARE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 124

460 S.W.2d 124

Roy David HARE, Appellant, v. The STATE of Texas, Appellee.

No. 42786.

Court of Criminal Appeals of Texas.

July 15, 1970.

Rehearing Denied Oct. 21, 1970.

Second Rehearing Denied Dec. 9, 1970.

Kilgore, Cole & Garrett, by W. W. Kilgore, Cullen, Edwards, Williams & Stevenson, Clarence N. Stevenson, Victoria, for appellant.

William C. Sparks, Dist. Atty., D. F. Martinak, Asst. Dist. Atty., Victoria, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is murder; the punishment, life.

The indictment alleged that appellant did, on or about August 11, 1967, voluntarily and with malice aforethought kill Billye Sue Zandonatti by shooting her with a gun.

A preliminary trial on the issue of present insanity (competency to make a rational defense) on February 21, 1968, resulted in a jury verdict finding appellant was insane; that he required hospitalization in a mental hospital; and resulted in his commitment to Rusk State Hospital.

About a year later (the exact time not being shown in the record) appellant was 'certified sane by the hospital,' and a jury empaneled in the trial court found him sane.

Thereafter, on April 14, 1969, appellant was tried before a jury on his plea of not guilty on the charge of murder.

The jury rejected appellant's defense of insanity; found that he was sane at the time of the offense and at the time of his trial, and that he was guilty of the offense of murder with malice aforethought, as charged in the indictment.

Having heard the evidence adduced on the issue of punishment, the court's charge and argument of counsel, the same jury rejected appellant's motion for probation and assessed his punishment at life imprisonment in the State Penitentiary.

Appellant's brief filed in the trial court set out thirty-eight grounds of error. We deem it necessary to discuss only the four of these grounds which are urged in appellant's brief filed in this court. Other grounds of error was overruled as reflecting no reversible error.

Ground of error No. 1 relates to the court's charge on insanity. It complains of Paragraph 13 of the charge in which the jury was instructed:

'The insanity must have existed at the very time of the commission of the offense, if the same was committed, and the mind must have been so dethroned of reason as to deprive the person accused of a knowledge of the nature and consequences of the particular act done, if any, And of the rightness and wrongness of the particular act done, if any, at the time of the commission of the same.' (Emphasis added)

What appellant's brief sets out as a proper charge on insanity was given the jury in the preceding paragraph, 12, of the court's charge which reads, in part:

'* * * To establish a defense on the ground of insanity the defendant must prove, not beyond a reasonable doubt but by a preponderance of the evidence that at the time of committing the alleged act the defendant was laboring under such defect of reason and incapacity of the mind as not to know the nature and quality and consequence of the act he was doing at the time he was doing it; or if did know, that he did not know that he was doing wrong,--that is that he did not know the difference between right and wrong as to the particular act charged against him.'

Also, in applying the law the court instructed the jury that if they found and believed beyond a reasonable doubt that appellant voluntarily and with malice aforethought killed the deceased by shooting her with a gun,

'* * * but you believe from the preponderance of the evidence that at the very time he committed the act, if he did, the defendant, Roy David Hare, was laboring under such defect of reason and incapacity of the mind as not to know the nature and quality and consequences of the act he was doing, at the time he was doing it, or if he did know, that he did not know he was doing wrong, that is, that he did not know the difference between right and wrong, as to the particular act charged against him, at the time he was doing, it, then you will find him not guilty on the grounds of insanity as of the time of the alleged offense, if any, and say so by your verdict * * *.'

Viewing the charge as a whole the error, if any, is not such as to call for reversal. Art. 36.19 Vernon's Ann.C.C.P.

Ground of error No. 24 complains of the sustaining of the state's objection which resulted in the exclusion of testimony of the witness Bobbie Sullivan, sister of appellant, with regard to the physical appearance and conduct of appellant in May 1967, when she was in Port Neches.

The bill of exception reflects the following testimony which appellant was not permitted to elicit from this witness before the jury.

'A. * * * he was real fidgety and extremely upset, and he cried the biggest part of that day.

'A. He shook, his body seemed--his whole body seemed to shake.

'Q. Do you know whether or not he slept that night?

'A. He didn't sleep.

'Q. All right. Do you know whether or not he ate anything that whole day, or that whole night?

'A. No, sir. He did not eat--yes, sir, he did not eat.

'Q. All right. Now, did you see him the next day?

'A. Yes.

'Q. Would you tell us, please, what parts of the day you saw him the next day?

'A. That morning, and right around--I was there that morning, and around noon I went to the hospital to visit my sister-in-law. And it was somewhere around 3:00 o'clock I came back and stayed there till around 6:00.

'Q. All right. And what did you do at 6:00?

'A. I came back to Placedo.

'Q. All right. With regard to his appearance and conduct on that day, could you tell us what you observed?

'A. Yes. He was withdrawn. He didn't seem like he wanted to talk to anybody.

'Q. * * * Did he talk to anyone?

'A. No.

'Q. Could you just generally tell me, then, what--how he appeared to you?

'A. Yes. He seemed nervous. He walked, and fidgeted quite a bit, and refused to eat anything.

'Q. All right. During the time that you were around him that day, did he eat anything?

'A. No, sir.'

We agree that this testimony was not too remote and the state's objection should not have been sustained.

In view of the record, the sustaining of the state's objection was not such error as to warrant reversal. The witness testified before the jury as to the physical appearance and conduct of her brother on August 6th to August 10th (the date of the homicide). S...