Smith v. State

• Decision Date: 14 October 1908
• Citation: 117 S.W. 966
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

117 S.W. 966

SMITH v. STATE.

Court of Criminal Appeals of Texas.

October 14, 1908.

On Rehearing, March 20, 1909.

Appeal from District Court, Wood County; R. W. Simpson, Judge.

Pat Smith was convicted of burglary, and he appeals. Reversed and remanded.

Stafford & Geddie, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

The appellant was indicted in the district court of Wood county, Tex., for the offense of burglary. On trial he was found guilty as charged, and his punishment assessed at confinement in the penitentiary for two years.

The facts show without dispute that appellant some time in September, 1906, entered the store of I. G. Bromberg & Co., in the town of Mineola, at night, and took therefrom a lot of merchandise of various kinds. This was not seriously disputed in the testimony, and the general fact of the entry by appellant and the taking by him of the goods is fixed substantially beyond any doubt. The defense was that appellant at the time of the burglary was suffering from such character of mental disorder or disease as rendered him incapable of distinguishing between the right and wrong of the act in question, and this insanity was that form known as "kleptomania," which is defined as an irresistible impulse to steal. This issue was submitted to the jury by the court in the charge:

"Among other defenses made in this case is insanity created and produced by a diseased condition of the mind. Every man is presumed to be sane until the contrary appears to the satisfaction of the jury trying him. He is presumed to entertain, until this appears, a sufficient degree of reason to be responsible for his acts, and to establish a defense on the ground of insanity it must be proven by a preponderance of the evidence that at the time of committing the burglary (if you have found he did) the defendant was laboring under such defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or, if he did not know that, he did not know that 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.

"You are to determine from the evidence in this case the matter of insanity, it being a question of fact controlled, so far as the law is concerned, by the instructions herein given you.

"Now, if the defendant has shown by a preponderance of the evidence that at the time of the alleged burglary the defendant was laboring under such defect of reason, from disease of the mind, as not to know the nature or quality of the act of burglary as herein defined, 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—you will acquit the defendant upon the defense of insanity."

In addition to this charge, counsel for appellant requested the court to give the following special charge:

"Gentlemen of the jury, you are further charged that in order for the defendant to be guilty of burglary in entering the storehouse of I. G. Bromberg & Co., if you find he did so enter said house, he must have been moved by, and must have entered for, the specific purpose of committing the crime of theft; and if he entered the said house without the specific intent at the time of committing the crime of theft, as the crime has been defined to you in the main charge, then he will not be guilty. And in this connection you are further charged that though he may have entered the said house, but at the time of making the entry, if he did so, he was suffering from any character of mental disorder or disease that rendered him incapable of distinguishing between the right and the wrong of the act, or, in other words, rendered him incapable of forming and following a sane intent to commit the crime of theft, then he will not be guilty, and you will acquit.

"You are further charged that kleptomania, which is defined as an irresistible impulse to steal, is, when it arises from a diseased condition of the mind, recognized as a species of insanity, or a manifestation of insanity, and the person suffering from kleptomania, arising from a diseased condition of the mind, would not be capable of forming the specific intent to steal as the crime has been defined by the statute.

"You are further charged, in connection with the above propositions, that while the defendant is supposed to have been sane at the time of the entry into the house, if he did so enter, still, if you find from the evidence that the defendant was suffering from any mental disorder prior to and at the time of the commission of the offense, if he did it, then the presumption of his sanity would be overcome and it is the duty of the state to show by the evidence, beyond a reasonable doubt, that the defendant was sane enough, at the time of making the entry, if he did so, to form the specific intent to steal, or, in other words, to know the difference between the right and the wrong involved in his act."

We think the latter clause of this charge, if not indeed other portions of it, was erroneous. Analyzed, it is to the effect that while in law the appellant is supposed to have been sane at the time of entering the house, yet, if the jury found from the evidence that he was suffering from any mental disorder prior to and at the time of the commission of the offense, this would overcome the presumption of his sanity, and that it is the duty of the state to show by the evidence beyond a reasonable doubt that the defendant was sane enough at the time of making the entry to form the specific intent to steal. The vice and fallacy of this charge, as we conceive, is that it in effect, in its last analysis, instructs the jury that while the presumption of law is that defendant is sane, yet if the defendant shows any form of insanity or mental disorder, that then the burden shifts to the state. The vice of this position is that if the evidence shows, and same is credited by the jury, that appellant is insane, he is entitled to be acquitted, and it would be error to instruct the jury that insanity being shown by the defendant, that any burden thereupon devolves upon the state. The true rule is stated, and better stated, in the charge of the court: That, where defendant is arraigned charged with an offense, the law presumes him to be sane, and the burden rests upon the appellant to show by a preponderance of the evidence facts constituting mental disorder or insanity. With this instruction the jury is in position to pass intelligently upon the matter in issue. We think the special charge should not have been given.

Complaint is made of that portion of the general charge of the court which reads as follows: "Among other defenses made in this case is insanity created and produced by a diseased condition of the mind." It is complained that insanity is itself a diseased condition of the mind, and not a result of the diseased condition of the mind, and this definition was calculated to and did mislead the jury to the prejudice of the defendant's interests, in that it left the jury to infer that the defendant might have a diseased condition of the mind and yet not be insane. We think this complaint not substantial, for the reason that under the instructions of the court, taken altogether, the test was made as to whether or not the appellant did or did not "now know the nature or result of the act he was doing, or, if he did know, that he did not know he was doing wrong"; that is, he did not know the difference between the right and wrong as to the particular act charged against him.

As further ground for reversal, appellant complains of the objectionable language used by the district attorney in his closing address to the jury. It appears by bill of exceptions that, among other things, the district attorney made to the jury the following remarks: "I want a verdict of guilty in this case, because I do not want you to set a precedent in this county for turning people loose on a plea of insanity. If you turn this defendant loose, then these lawyers, like Stafford & Geddie, will be pleading insanity for everybody that is prosecuted, and, if you are going to turn this defendant loose, you had just as well tear down your courthouse and burn your docket." Exception was taken to this language, but no charge was requested from the court withdrawing or correcting same. We have frequently held that where the remarks of prosecuting attorneys in argument were excepted to, but no charge in respect to them is asked, no error is presented. The only exception to this rule is in a case where the remarks of the prosecuting attorney are of such grave character as obviously to prejudice appellant's case before the jury. Lancaster v. State, 36 Tex. Cr. R. 16, 35 S. W. 165; Locklin v. State, 75 S. W. 305, 8 Tex. Ct. Rep. 204; Powell v. State (Tex. Cr. App.) 70 S. W. 218; Fredrickson v. State, 44 Tex. Cr. R. 288, 70 S. W. 754; Smith v. State, 44 Tex. Cr. R. 137, 68 S. W. 995, 100 Am. St. Rep. 849; Robbins v. State, 47 Tex. Cr. R. 312, 83 S. W. 690, 122 Am. St. Rep. 694; Taylor v. State, 50 Tex. Cr. R. 560, 100 S. W. 393; Davis v. State (not yet officially reported) 114 S. W. 366. We do not think, in the absence of a request to disregard the remarks above quoted, that they are of such gravity, or so obviously calculated to injure appellant, as to justify, under the above decisions, a reversal of the case.

It is also complained that in the course of his argument the district attorney used the following language: "Convict this defendant, and if you want to recommend executive clemency—if you want him pardoned—come to me and I will help you get him a pardon." Touching this language, counsel for appellant requested the court to instruct the jury as follows: "You will not consider the language used by the district attorney in his closing speech, wherein he said...