Rather v. State

• Decision Date: 13 June 1888
• Citation: 9 S.W. 69
• Court: Texas Court of Appeals
• Parties: RATHER <I>v.</I> STATE.

9 S.W. 69

RATHERv.

STATE.

Court of Appeals of Texas.

June 13, 1888.

Appeal from district court, Shelby county; J. I. PERKINS, Judge.

This was a capital conviction for murder; the victim being Viney Rather, the wife of the accused. The charging part of the indictment reads as follows: "That Joe Rather did, in Shelby county, state of Texas, on the 6th day of January, 1888, of his malice aforethought express, kill and murder Viney Rather, by shooting her with a gun," etc. Briefly stated, the evidence shows that the accused and his wife went to a neighborhood dance on the fatal night; that, while there, they quarreled about the division of a cake, and that defendant, in a state of anger, attempted to assault his wife with a knife, but was prevented by other parties; that he then ordered her to go home, and she left; that, during the short time he remained at the dance after she left, he told three different persons that he would kill his wife before morning; that he returned to the dance about an hour after he left, having a gun with him, and told two or three different persons that he had killed his wife at his house. The proprietor of the place on which the accused and his wife lived heard the fatal shot, and saw and talked with the accused just before and after the fatal shooting. He did not investigate the cause of the shooting, inasmuch as it was a common practice on the part of the defendant to discharge his gun at night, and did not discover the murder until after the defendant left the place, which he did a short time after the fatal shot was fired. The defense set up the plea of insanity, but supported it only with testimony showing that, in the opinion of several witnesses, the defendant was weak-minded. Two witnesses testified that they each saw the accused take a drink of diluted alcohol a short time before he left the dance; but all the witnesses concurred in stating that if the accused was drunk they did not discover it.

The charge of the trial court on the subject of insanity was as follows: "Insanity, as understood and meant in criminal law, is where a person accused of crime was, at the time of committing the act, laboring under such defect of reason as not to know the nature or quality of the act he was doing; or, if he did know, that he did not know he was doing wrong, — that is, that he did not know the difference between the right and wrong as to the particular act charged against him; or, if he did know that it was wrong, that he did not have the will and mental power to refrain from doing it. Whether such insanity be continuous or temporary is immaterial in its legal effect; the only material inquiry being as to whether it existed at the very time of the commission of the act charged. If such insanity is shown to exist at such time, and was produced by mental disease, it would be a complete defense, and the accused could not be punished criminally for such act; but, if produced by the voluntary recent use of ardent spirits, it could only be considered in determining the degree of the crime and the penalty to be assessed. Intoxication produced by the voluntary recent use of ardent spirits constitutes no excuse for crime, nor does intoxication mitigate either the degree or the penalty of crime. But in a case where the defendant is accused of murder, as in the case before you, if you believe from the evidence that, at the time of the homicide, the defendant was in a state of intoxication produced by the voluntary recent use of alcohol or other intoxicating liquor, and that such intoxication produced in the mind of the defendant, at the time of such homicide, a state of insanity, as the term `insanity' has been explained to you, you are instructed that you cannot convict the defendant of murder in the first degree; but if you find that the defendant committed such homicide, and that the same was committed under circumstances otherwise amounting to murder, you would convict the defendant of murder in the second degree, notwithstanding he may have committed the same in such state of insanity produced by such cause. You are further instructed, upon this subject, that every person is presumed to be of...