Warren v. State

• Decision Date: 05 March 1924
• Docket Number: (No. 8091.)
• Citation: 259 S.W. 575
• Parties: WARREN v. STATE.
• Court: Texas Court of Criminal Appeals

259 S.W. 575

WARREN v. STATE.

(No. 8091.)

Court of Criminal Appeals of Texas.

March 5, 1924.

Appeal from Criminal District Court, Dallas County; Felix D. Robertson, Judge.

Burrell Warren was convicted of assault with intent to commit rape, and he appeals. Reversed and remanded.

S. F. Rose and Albert Strawn, both of Dallas, for appellant.

Shelby S. Cox, Criminal Dist. Atty., of Dallas, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

Appellant was convicted of assault with intent to rape, his punishment being fixed at confinement in the penitentiary for a period of 40 years.

The defense was insanity. During the day in the center of the city of Lancaster, at a place where many people were within call, the appellant, a negro man, made an assault upon a white woman. When persons attracted by her screams came to her aid, the appellant protested against interference with his business. Considering the time, place, and nature of the assault, it is difficult to reconcile it with the act of a rational person. On the issue of insanity many witnesses testified on behalf of appellant. Among them were four doctors, including the city health officer. Some time previous to the occasion of the offense appellant had been by a policeman of the city arrested and charged by affidavit with lunacy. He was examined and treated by the city health officer, who testified upon the present trial to his examination and treatment and gave the opinion that the appellant's mind was unsound. According to this witness and other doctors, appellant was affected with a form of epilepsy called "psychic epilepsy." Attacks due to this malady were described and symptoms detailed. Its nature was such as to produce delusions rendering the appellant incapable of controlling his acts, destroying his will, and making him unaccountable for his conduct. Similar symptoms had affected other members of the family. There were apparently lucid intervals, but during them, according to the testimony, there were delusions and mental aberrations controlling the conduct of the subject. Many nonexpert witnesses testified to peculiarities of conduct upon which they based their conclusion that appellant was insane. The officers who arrested the appellant, and who had him in custody after the commission of the offense, described his conduct and gave the opinion therefrom that he was sane. Some citizens in the community in which appellant lived, and for whom he had on occasions done manual work, testified that they had observed nothing in his conduct leading to the conclusion that he was insane. The superintendent of the school in the city in which appellant resided testified that the appellant had graduated at the public school and at the time had made an address; that witness had delivered a diploma to him, and afterwards had assented to his employment as a substitute teacher. No personal knowledge of the character of his conduct either as a student or teacher was asserted, but no adverse comments had been heard.

The witness Effie Warren, mother of the appellant, was introduced by him upon the issue of insanity, and gave material testimony upon that subject. During her examination appellant's counsel propounded to her questions to which she gave somewhat unresponsive answers embracing some hearsay. He instructed her to refrain from repeating what others had told her. She changed the form of her answer, whereupon state's counsel interposed the complaint that she was repeating. The court then made some remarks against which objections were urged. In the bill of exceptions appellant set out the remarks in these words:

"She knows enough not to hesitate to put the word `crazy' in every time she can. You have led the word out of this witness and out of the other witnesses as much as you possibly can on every occasion and have led the witnesses around by the nose, and you can have your bill on that."

The court approved the bill, appending thereto the transcribed notes of the stenographer covering the transaction. From these the following quotations are taken:

"Q. Now, Effie, do you remember an occasion any time after that of Burrell ever being in jail? A. They had him up here going to summer normal, and Pauline phoned me that he was crazy.

"Q. Don't tell anything anybody told you; just what you know yourself. A. They sent for me, telephoned that he was crazy up here in jail.

"State's Counsel: Judge, are you going to let this witness sit there and repeat over and over again —

"Defendant's Counsel: That witness don't know how to testify as well as state's attorney does.

"The Court: She don't hesitate to put in the word `crazy.'

"Defendant's Counsel: We except to the court's remarks in stating that the witness doesn't hesitate —

"The Court: You may have your bill, and I will qualify it by saying that you have jerked that word `crazy' out of this witness and all other witnesses as much as you possibly could on every possible occasion. You may have your bill on that.

"Defendant's Counsel: We would like to have a bill of exceptions; we would like to have the stenographer get it.

"The Court: He has already got it and you may...