Lermo v. State

• Decision Date: 21 May 1902
• Parties: LERMO v. STATE.
• Court: Texas Court of Criminal Appeals

Page 684

68 S.W. 684

LERMO v. STATE.

Court of Criminal Appeals of Texas.

May 21, 1902.

Appeal from district court, Pecos county; J. M. Goggin, Judge.

Geirmo Lermo was convicted of murder, and he appeals. Affirmed.

Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Conviction for murder in the second degree, with penalty of 12 years' confinement in the penitentiary.

After the jury had been impaneled and sworn, and plea of not guilty entered, appellant's counsel filed an affidavit setting up appellant's insanity, and requested the court to proceed only with the trial of this question. The court, qualifying the bill, states: That counsel was appointed to represent appellant on the 25th of March. That he was arraigned and pleaded "Not guilty" on the 27th. That, immediately after the case was called, the parties announced "Ready," and the jury was impaneled and sworn in accordance with the law, whereupon counsel for defendant asked time for conference with his client before proceeding further, and shortly thereafter returned into court and presented the affidavit setting up the present insanity of his client. In reply to the court's inquiry as to whether the affidavit had been prepared before the announcement of "Ready," counsel stated that it had been partially prepared. The court then refused to discharge the jury for the purpose of impaneling another jury to first try the issue of insanity, but informed counsel that the issue of defendant's sanity would be by him submitted to the jury on the trial as an issue to be first determined by them, and the jury would be instructed, should they find appellant insane, to so state in a special verdict, and not inquire or determine the question of his guilt or innocence of the offense charged. He further informed counsel that he could introduce evidence on the issue of insanity, but none was offered on that issue, and no further question was raised in regard to it. And that, so far as the court could observe, there was nothing to indicate any unsoundness of mind on the part of appellant. A somewhat similar question was presented in Guagando's Case, 41 Tex. 630. The affidavit in that case was presented under conditions in a measure similar to those here involved. But on that trial evidence was introduced in regard to insanity. The court held, under the facts of that case, that a new trial should have been awarded. If, as a matter of fact, there was any evidence that could have been adduced reasonably bearing upon this question of present sanity, it should have been offered or accounted for either at the time of the trial or on motion for new trial. The only matter occurring in connection with the whole case is the statement of counsel to the effect that defendant was insane at the time he made the affidavit, and this was made after the arraignment and impanelment of the jury. In order to have met this question on the motion for new trial, there should have been something of a tangible nature to indicate the error of the court, if in fact it was an error...