McKenny v. State

• Decision Date: 24 November 1926
• Docket Number: (No. 10096.)
• Citation: 288 S.W. 465
• Parties: McKENNY v. STATE.
• Court: Texas Court of Criminal Appeals

288 S.W. 465

McKENNY v. STATE.

(No. 10096.)

Court of Criminal Appeals of Texas.

November 24, 1926.

Appeal from District Court, Fort Bend County; M. S. Munson, Judge.

Pete McKenny was convicted of murder, and he appeals. Affirmed.

E. T. Branch and Chernosky, Jeffrey & Douglas, all of Houston, and Edward Risinger, of San Antonio, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

LATTIMORE, J.

Conviction in district court of Fort Bend county of murder; punishment fixed at death.

There are five bills of exception which are not of merit enough to call for discussion. Appellant briefs only the proposition that the charge on insanity was erroneous. The exception to this charge is as follows:

"Defendant objects to paragraph 9 of the court's charge, same being a charge on insanity, because the said charge makes it more onerous on the defendant and does not correctly charge the law on insanity, as is shown by the evidence in this case."

Our statute (article 658, 1925 C. C. P.) requires that exceptions to the charge shall "distinctly specify each ground of objection." The exception in the instant case quoted above does not comply with this requirement of the statute. Pinkerton v. State, 94 Tex. Cr. R. 127, 249 S. W. 1066; Regittano v. State, 96 Tex. Cr. R. 477, 257 S. W. 906; Blackmon v. State, 95 Tex. Cr. R. 116, 252 S. W. 803; Morris v. State, 96 Tex. Cr. R. 605, 258 S. W. 1065; McCauley v. State, 97 Tex. Cr. R. 1, 259 S. W. 938; Littleton v. State, 91 Tex. Cr. R. 205, 239 S. W. 202; Gill v. State, 84 Tex. Cr. R. 531, 208 S. W. 926; Riordan v. State, 101 Tex. Cr. R. 279, 275 S. W. 1017. The ruling of this court in construing this statute is illustrated in the Pinkerton Case, supra, wherein the objection made to the charge was as follows:

"Because said paragraph is not applicable to the facts of this case, and imposes undue burdens and limitations on the defendants, and is entirely too restrictive when applied to the facts of this case."

This appears very like the objection made in the instant case. We there said, speaking through Judge Hawkins:

"The exception was not elaborated, and in no way was it undertaken to point out to the trial court in what particular the paragraph in question was not applicable to the facts, nor in what way it imposed undue burdens or limitations on appellants, nor in what manner it was deemed by them too restrictive."

Applying the same reasoning to the exception in the case before us, it is manifest that to say a charge is onerous, which does not correctly charge the law of insanity, points out no particular in which said charge is onerous or in which the law of any issue is not correctly stated; it specifies no words, phrases, or statements deemed onerous in effect, and none which, either by commission or omission, fails to properly present the law of insanity.

To meet the charge that the attorneys "waylaid the trial judges" by omnibus and blanket exceptions, and to give notice that unless exceptions to the charge were so framed as to point out to the court some particular part complained of, the present law, requiring the charge to be read to the jury and presented to the accused before argument, and that specific objections to the charge must be made, was passed. In Gill v. State, supra, where the exception was that paragraph 4 of the charge was on the weight of the evidence, we said, speaking through Judge Morrow:

"These provisions were made with the purpose of advising the trial judge, before his charge is given to the jury, of defects, affirmative or negative, which in the judgment of counsel for the accused occurred in the charge, and to afford the trial judge the opportunity to amend the charge enlightened by the views of counsel for the accused.

"No form of objection is prescribed, and, in the nature of the case, none can be laid down, but the charge complained of and the objection made must be considered together, and, if it is sufficiently definite to make reasonably apparent to the trial judge the faults complained of, it will be regarded on appeal as a substantial compliance with the requirements of the statute. The statute demanding that the objections shall be distinctly specified is not ordinarily met by a general objection."

This being a case in which the death penalty was inflicted, we have considered appellant's attack upon the charge viewed from every angle. Appellant introduced three witnesses, his father, sister, and brother-in-law. Neither the father nor the sister testified that, in their opinion, appellant was insane. The brother-in-law testified in one place, after saying that witness' wife was not bright, that this boy (evidently referring to the...