Mikeska v. State

• Decision Date: 01 December 1915
• Docket Number: (No. 3833.)
• Citation: 182 S.W. 1127
• Parties: MIKESKA v. STATE.
• Court: Texas Court of Criminal Appeals

182 S.W. 1127

MIKESKA v. STATE.

(No. 3833.)

Court of Criminal Appeals of Texas.

December 1, 1915.

Rehearing Denied February 2, 1916.

Dissenting Opinion February 17, 1916.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

Frank B. Mikeska was convicted of murder, and he appeals. Affirmed.

H. P. Shead and M. J. Hickey, both of Richmond, C. H. Chernosky, of Rosenberg, and Heidingsfelders, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., E. T. Branch, T. J. Harris, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of the murder of his wife and the death penalty assessed.

The proof would show that deceased, being dissatisfied with the home appellant carried her to, a place near Crosby, in Harris county, said she was going to return to her father's, in Waller county. Appellant in his confession says that the kinsfolk of deceased, before this, had been trying to get his wife away from him, and when, on this morning, she said she was not satisfied with the home he had provided, and that she was going back from where she came, he thought she meant it, and he could not control himself, and he went in another room, got a shotgun, and shot and killed her. On this trial he made no defense of his action further than to plead he was insane, and therefore not responsible for his acts. On this plea of insanity appellant introduced proof of his acts and conduct from his childhood up to and including the day of the homicide, and by his father, of his conduct shortly after the homicide. All this evidence of queer conduct and acts during the various periods of his life's history was introduced by appellant to prove that he was insane at the time of the killing of his wife. Appellant does not rely upon any specific cause at the time of or just prior to the homicide to prove that his mind was temporarily unbalanced at the time of the homicide, but appellant begins with his childhood days and takes acts and conduct then occurring, and through all the various years of his life, to prove that at the time, at least, he was of unsound mind and incapable of knowing right from wrong. And as this inquiry embraced this broad a scope, in rebuttal of this testimony, certainly it was permissible for the state to show, if it could, that at no period of his life was appellant's mind so unbalanced as to render him irresponsible for his acts. As the appellant relied on such facts to show that he was mentally unbalanced at the time of the commission of the offense, the state could introduce the same character of proof as tending to show that he was not mentally unbalanced at the time of the homicide, and was sane at that time.

In bills of exception Nos. 1, 6, 9, and 10 objections are made to the introduction of the testimony of Drs. York, Ross, and Martin. As these bills are all of the same character, we will state only what one of the physicians testified. After qualifying as an expert on insanity Dr. Martin testified:

"I talked to this defendant a number of times, talked to him about first one thing and then another, talked to him about his condition, how he felt and how he was getting along, what caused him to get into this trouble, and first one thing and another as it would come up, talked to him on general subjects, the weather, the war, or anything of that kind, current events. The day before this case started last Wednesday I was present when he was talking about his troubles and his early boyhood and life generally, the day before this case started; he has made to me a detailed statement about the events of his life, from his boyhood and up to where he went to school, what he had done, where he had worked, and the name of his children and wife, and went into a history of his mother and father; he went into those subjects at length. In my opinion he is absolutely sane; I know that he knows it is wrong to kill any one. If a person had a slip of the mind for an hour or a day, and then regains consciousness, he would not know anything that took place during that interval; he could not detail anything that he saw or heard during that interval of the disease of his mind. If this defendant, several days after his wife died, made a detailed statement of all the facts and movements of the man and of his wife and his children during the day that she died, during the very time that she died; in other words if he made a detailed statement of those things — would say that he was absolutely sane at the time he committed the offense. The defendant here in the courtroom is a changed man from his appearance and conduct and his actions in the jail since the day before yesterday; he seems to be taking the role of melancholy; he is not suffering from any such disease as that. I observed him closely last night and this morning, and a man suffering from melancholia is absolutely relaxant, I mean by that he don't bat an eyelid — observed him last night and this morning and he does not look it at all; it is absolutely my opinion that he is trying to simulate melancholy or insanity. Simulate means to take off; make off; pretend; malingering."

Appellant objected to this testimony on the ground that the conduct of appellant in the courtroom was not a proper subject of inquiry to be considered by the jury, and the manifest purpose of the questions propounded was to elicit from them and have them present to the jury a confession of the defendant's conduct while in jail and his conduct while in the courtroom, and the defendant had not offered any evidence for the purpose of showing insanity, his looks, appearance, conduct, expression, or gestures, during the progress of the trial, or while he was in jail, and this was in effect causing the defendant to testify against himself. All the objections here urged were specifically passed on by this court in Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858, and decided adversely to his contention. In that case the objection, among others, was urged as here:

"Because it is an effort on the part of the state to use the appearance and conduct of the defendant in the courtroom, against him when he was not placed on the witness stand."

The court in that case said:

"The position maintained by appellant was in effect decisively ruled adversely to him in the case of Burt v. State, 38 Tex. Cr. R. 397 [40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330]. In that case Dr. Davis was placed on the stand as a witness for the state, and was permitted to testify that the defendant was simulating; that is, playing a part, and not acting naturally. This testimony was held not inadmissible. Again, in that case, Dr. Wooten was permitted to testify that while Burt was in jail, he had gone to the jail, had taken the dimensions of his skull, and while there examined the defendant, talked to him, looked at him and observed him. This was held not to be error. Again, in that case, Jack Hughes was placed on the stand for the state, by whom it was shown that he had noticed the fact that defendant had struck his head against the window frame the day before as he passed through the window, and that it was the only time defendant had done so in the many times he had passed through said window during the trial. This was held not to be error. Summarizing on the question generally, the court uses the following language: `We are not informed of any case holding that because a prisoner is in jail, unwarned, therefore his conduct cannot be observed, so that the expert can given an opinion as to his sanity. It would be a remarkable case, indeed, in which the accused, if insane, would simulate sanity. We cannot comprehend how the fact that he was in jail could affect his conduct in this particular in any manner, and therefore the ruling of the court in regard to the testimony of Dr. M. M. Smith was correct.' See Adams v. State, 34 Tex. Cr. R. 470 . See, also, Cannon v. State, 41 Tex. Cr. R. 467 . Again, as we have seen: `The conduct and acts of defendant while in jail may be given in evidence, as a basis for an opinion by a nonexpert as to defendant's sanity, though defendant was not warned that his acts and conduct would be used as evidence against him, as they are not a confession.' Adams v. State, 31 S. W. 372. The admission of this testimony could, in no proper sense be held to be a reference to the failure of the defendant to testify, but was merely the expression of an opinion by the expert, based on the testimony developed at a hearing and having reference to the conduct, appearance, and demeanor of the defendant then present."

Appellant does not dispute this is the rule announced in the Tubb Case, but says that the Burt Case is not authority for such ruling, in that in the Burt Case the court stated that the defendant had "offered in evidence the manner and appearance of the defendant, the way he demeaned himself during the trial, as evidence of insanity at the time of the trial," and the court gave this as a basis for its holding. The record discloses that in the Burt Case the defendant did not testify as a witness any more than did appellant in this case. It may be in that case the defendant's counsel called attention to his acts and conduct during the trial, while in this case it is not shown they did so, yet his acts, conduct, and demeanor during the trial were plainly evident to the jury. By no conceivable freak of the imagination could it be conceived that his acts, conduct, and demeanor during the trial were not and would not be noticed by the jury, and considered by them in passing on the issue of his insanity, and we think the Tubb Case was correct in holding that experts could take into consideration, in giving an opinion as to his sanity, his acts, conduct, and demeanor on the trial as well as his acts, conduct, and demeanor on other occasions. Guerrero v. State, 171 S. W. 731; Kirby v. State, 150 S. W. 460, and cases cited in Branch's...