State v. Olsen, A-8902

• Citation: 360 S.W.2d 398
• Decision Date: 27 June 1962
• Docket Number: No. A-8902,A-8902
• Parties: The STATE of Texas, Relator, v. G. C. OLSEN et al., Respondents.
• Court: Supreme Court of Texas

Page 398

360 S.W.2d 398

The STATE of Texas, Relator, v. G. C. OLSEN et al., Respondents.

No. A-8902.

Supreme Court of Texas.

June 27, 1962.

Rehearing Denied Oct. 3, 1962.

D. D. Sullivan, Dist. Atty., Andrews, John H. Banks, County Atty., Winkler County, Kermit, for relator.

Warren Burnett, Odessa, Luther E. Jones, Jr., Corpus Christi, for respondents.

CALVERT, Chief Justice.

The State of Texas, acting by and through its District Attorney for the 109th Judicial District, seeks by this original proceeding to compel Honorable russell D. Austin, District Judge, to vacate and set aside a judgment rendered and entered by his predecessor in Cause No. 1071, The State of Texas vs. John Mack Herring, then pending on the criminal docket of said court for Winkler County and commanding Judge Austin to proceed to trial in the case.

John Mack Herring was indicated for murder. After return of the indictment and while the case was pending, Herring's father made an affidavit that in his opinion Herring was 'temporaily in a state of insanity' and was 'temporarily unable to distinguish between right and wrong' as to his act at the time he committed it. Based on the affidavit, Herring's counsel filed a motion asking the court to 'order a preliminary jury trial of the issue whether defendant was temporarily in a state of insanity at the time of the offense charged herein.' A preliminary trial by jury was ordered as requested. When the evidence was concluded, Judge G. C. Olsen, the trial judge, charged the jury generally on the law of insanity and submitted for their consideration one question, as follows:

'QUESTION: Do you find from a preponderance of the evidence that at the time of the act charged by the indictment in this case, the defendant, John Mack Herring, was insane?'

The jury answered the question 'yes'.

The State filed a motion for judgment notwithstanding the verdict. In the motion the State challenged the jurisdiction of the court to try the issue of insanity in the preliminary trial. The motion was overruled and judgment was rendered and entered adjudging John Mack Herring to have been insane at the time of commission of the offense charged in the indictment. Under the provisions of Article 932b, Vernon's Code of Criminal Procedure, the judgment, if valid, operates as an acquittal of the offense charged. The judgment is not appealable. Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355; Ex parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581.

This proceeding was filed originally against Honorable G. C. Olsen. After it had been submitted on oral argument, Judge Olsen died. The proceeding against him thereupon became moot. Decision was held in abeyance until Judge Austin, successor to Judge Olsen, had been afforded an opportunity to vacate the judgment, with permission to Relator, in event of refusal, to amend and proceed against Judge Austin. See Tex., 360 S.W.2d 402. Judge Austin has now refused to vacate the judgment and Relator's petition has been amended to seek a writ of mandamus against him.

The position of the State before this court is that the trial court was without jurisdiction to try only the issue it did try and to render the judgement it did render in a preliminary trial. If the trial court was without jurisdiction for any reason, the judgment rendered by it is void and the writ of mandamus should issue as prayed. 33 Tex.Jur.2d 694, Judgments, § 164; 25 Tex.Jur. 685, Judgments, § 252; Article 1734, Vernon's Texas Civil Statutes; State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279. We have concluded that jurisdiction of the trial court to conduct the preliminary trial was not legally invoked.

The preliminary trial was conducted under purported authority of Article 932b, Vernon's Code of Criminal Procedure. The relevant part of that Article reads as follows:

'Section 1. In any case where the question of the insanity of a defendant is raised and that issue is tried alone before the main charge or is tried in connection with the main charge, the jury shall state in their verdict whether the defendant was sane or insane at the time the offense is alleged to have been committed and whether the defendant is sane or insane at the time of the trial.

'(a) If the jury finds the defendant to have been insane at the time the offense is alleged to have been committed, the defendant shall stand acquitted of the alleged offense.

'(b) If the jury finds the defendant to be insane at the time of trial, the court shall enter an order committing the defendant to a State mental hospital and placing him in the custody of the sheriff for transportation to a State mental hospital to be confined therein until he becomes sane. If the defendant is acquitted of the alleged offense the court shall so state in the committment order.'

Before a jury can comply literally with the statutory requirement in returning a verdict, a judge must submit two questions or issues, viz: whether the defendant was sane or insane at the time the alleged offense was committed and whether he is sane or insane at the time of trial. But we are not concerned here with whether this proceeding was tried properly; we are concerned with whether the court had jurisdiction to try it at all. A proper determination of that question requires an analysis of the quoted language of the Article and a review of relevant decisions in criminal cases.

The District Court of the 109th Judicial District undoubtedly had jurisdiction of the case of The State of Texas vs. John Mack Herring pending on its criminal docket. It also had potential jurisdiction under Article 932b to try, in a preliminary trial, the issue of the defendant's insanity at the time of commission of the offense charged in the indictment. But jurisdiction thus conceded does not foreclose the question before us. Jurisdiction of a court must be legally invoked; and when not legally invoked, the power to act is as absent as it it did not exist. What we said in San Antonio & A. P. Ry. Co. v. Blair, 108 Tex. 434, 196 S.W. 502, 505-506, although speaking of jurisdiction of appellate courts, seems appropriate here:

'There is, of course, an obvious difference between jurisdiction,-the power of a court to hear and determine causes, and the doing of those things necessary to call that power into play. To confer jurisdiction upon a court is not to give it authority to determine the mode of resort to its jurisdiction, or the power of deciding how, when, and in what manner its jurisdiction may be obtained. Some means must be provided as the instrumentality of bringing the cause under the power of the court in order for the court to have and exert power over it. Such means are purely remedial in their nature. They pertain merely to the manner or mode by which jurisdiction is acquired, not to its exercise after it is acquired. * * *'

On the subject generally, see 21 C.J.S. Courts § 80, p. 121; Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084.

Even a casual reading of Section 1 of Article 932b should disclose that it does not purport to state how or in what manner jurisdiction of a court is invoked to try an issue of insanity in a pending criminal case. It purports only to direct the form of the issues to be submitted and the nature of the verdict to be returned by the jury. It directs what the verdict of the jury shall state in a case where 'the question' of insanity is raised 'and that issue is tried.' We must look elsewhere to see how and in what manner jurisdiction of a court to try issues of insanity in a criminal case is invoked.

The two issues of insanity which a court has jurisdiction to try in a criminal case, before conviction, are based upon and arise out of Article 34, Vernon's Penal Code. That article provides: 'No act done in a state of insanity can be punished as an offense. No person who becomes insane after he committed an offense shall be tried for the same while in such condition. * * *' The first sentence makes insanity a defense to a criminal charge. The second sentence makes insanity a bar to prosecution. See Insanity as a Bar to Criminal Prosecution by K. K. Woodley, Judge of the Court of Criminal Appeals, 3 South Texas Law Journal 204. The statutory law of this State contained similar provisions in 1874 when this court decided Guagando v. State, 41...