Witty v. State

• Decision Date: 04 November 1914
• Docket Number: (No. 3260.)
• Citation: 171 S.W. 229
• Parties: WITTY v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 229

WITTY v. STATE.

(No. 3260.)

Court of Criminal Appeals of Texas.

November 4, 1914.

On Motion for Rehearing, December 9, 1914.

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Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

J. B. Witty was convicted of murder in the second degree, and appeals. Affirmed and rehearing denied.

Edgar Harold and Williams & Williams, all of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of murder in the second degree and his punishment assessed at 15 years' confinement in the penitentiary.

This is the second appeal. The decision in the first is reported in 153 S. W. 1146.

The crime, if committed, was at the time when our murder statute fixing two degrees was in effect, and the case was tried thereunder. No extended statement of the evidence is necessary. The statement of facts comprises more than 200 typewritten pages. Appellant killed the deceased. No question is made of this. He pleaded not guilty. His sole defense was insanity. His attorney made a clear and forcible oral argument when the case was submitted. He also has an able written brief clearly presenting and forcibly urging what he claims were reversible errors in the trial. His first contention is that the evidence was insufficient to sustain the verdict, in that it failed to establish beyond a reasonable doubt his sanity at the time he killed deceased.

In addition to hearing said oral argument and reading and studying his brief, we have carefully read and studied the whole of the evidence. As stated above, it is unnecessary and altogether too lengthy to recite it. We think it is amply sufficient to sustain the verdict and that the jury and lower court were justified therefrom in believing as they did, beyond a reasonable doubt, that appellant was sane at the time he killed the deceased, and we are not authorized to set aside the verdict and judgment on this ground.

Appellant attacks the charge of the court in some particulars. He also requested several special charges. Some of them were given, others refused. It is elementary that in considering such matters the whole charge must be considered, and not separate and distinct paragraphs of it alone. Therefore, in view of said attacks made and the special charges requested which were refused, we here give the charge of the court in full and also copy those of his special charges which were given.

The court's charge is: After the proper heading and the statement to the jury that appellant was charged with murder in the second degree by the unlawful killing of Lula Ozment, and the place and date, and that he pleaded not guilty, we copy:

"1 instruct you that our statute provides that any person of sound memory and discretion who shall unlawfully kill any reasonable creature in being, within this state, with malice aforethought, shall be deemed guilty of murder, and `murder' is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide.

"(2) The distinguishing characteristic of `murder in the second degree' is implied malice aforethought. `Malice aforethought' includes all other states of mind under which the killing of a person takes place without any cause which will in law justify, excuse, or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken. `Malice' in its legal sense denotes a wrongful act done intentionally without just cause or excuse.

"(3) `Malice aforethought' is the voluntary and intentional doing of an unlawful act by one of sound memory and discretion with the purpose, means, and ability to accomplish the reasonable and probable consequences of the act.

"(4) A `deadly weapon' is one which in the manner used is likely to produce death or serious bodily harm; and, within the meaning of the law, a `pistol' is a `gun.'

"(5) Malice is a necessary ingredient of the offense of murder in the second degree. The distinguishing feature, however, so far as the element of malice is concerned, is that in murder in the first degree malice must be proved to the satisfaction of the jury beyond a reasonable doubt as an existing fact, while in murder in the second degree malice will be implied from the fact of an unlawful killing.

"(6) `Implied malice' is that which the law infers from or imputes to certain acts however suddenly done. Thus, when the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, nor tend to mitigate, excuse, or justify the act, then the law implies malice, and the murder is in the second degree. And the law does not further define murder in the second degree than if a killing is shown to be unlawful, and there is nothing in evidence on the one hand showing express malice, or which tends to establish any justification, excuse or mitigation on the other, then the law implies malice, and the homicide is murder in the second degree.

"(7) Now if you believe from the evidence beyond a reasonable doubt that the defendant, with a deadly weapon, and that the same was a gun, and an instrument reasonably calculated and likely to produce death by the mode and manner of its use, in sudden passion, and that he was sane at the time, as hereinafter charged, with the intent to kill, did unlawfully and with implied malice aforethought shoot and thereby kill the said Lula Ozment, as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the penitentiary for any period that the jury may determine and state in their verdict, provided it be for not less than five years.

"(8) The verdict, judgment, and record of the county court of McLennan county, Tex., which have been introduced in evidence before you, finding that the defendant was insane at the time he was tried in said court, establishes the fact that he was insane at the very time he was tried in said court, and raises the presumption that he was insane at the time he shot and killed Mrs. Lula Ozment, if he did shoot and kill her; but whether he was sane or insane at the very time the fatal shots were fired is a question which it is your exclusive province to determine from all the facts and circumstances which are in evidence before you.

"(9) You are further instructed that the burden of proof is on the state to show by the evidence beyond a reasonable doubt that the defendant was sane at the time he shot and killed Mrs. Ozment, if he did shoot and kill her, and responsible for his acts. In other words, in ordinary cases when insanity is interposed as a defense for the commission of crime on the part of the defendant, the presumption is that he was sane when the crime was committed, until the contrary is shown, and the burden of proof is on the defendant to show that he was insane; whereas, in the case before you the presumption is that this defendant was insane at the time he shot and killed Mrs. Lula Ozment, if he did shoot and kill her, and the burden of proof is on the state to show by the evidence beyond a reasonable doubt that the defendant was sane at the time of said shooting.

"(10) No act committed in a state of insanity can be punished as an offense. While in ordinary cases every person charged with crime is presumed to be sane, that is, of sound memory and discretion, until the contrary is shown by proof, in this case the defendant is presumed to have been insane at the time he shot and killed Mrs. Lula Ozment, if he did shoot and kill her, and not responsible for his acts, until the contrary is shown by the proof beyond a reasonable doubt. If under the law as herein given you in charge, and the testimony before you, the guilt of the defendant has been established beyond a reasonable doubt, it devolves on the state to establish by the evidence his sanity at the time of committing the act beyond a reasonable doubt, in order to fix his legal responsibility for said act; that is to say, the burden of proof to establish the sanity of the defendant by the evidence beyond a reasonable doubt devolves upon the state at the time of the shooting, if any. If the state has, as before explained, proved the facts which constitute the offense charged in the bill of indictment, by the evidence beyond a reasonable doubt, your next inquiry will be: Has the state established by proof his sanity beyond a reasonable doubt at the time he shot and killed Mrs. Lula Ozment, if he did shoot and kill her, or has it been established by proof from any source in evidence before you beyond a reasonable doubt? If it has, the law does not excuse him from criminal liability, and you should convict him. The question of the insanity of the defendant has exclusive reference to the act with which he is charged and the time of the commission of the same. If he was sane at the time of the commission of the crime, if any, he is amenable to law. As to his mental condition at the time with reference to the crime charged, it is peculiarly a question of fact to be decided by you from all the evidence in the case before the act, at the time and after. A safe and reasonable test in all cases would be that whenever it should appear from the evidence that at the time of doing the act the defendant was not of sound mind, but was affected with insanity, and that such affection was the efficient cause of the act, and that he would not have committed the act but for that affection, he ought to be acquitted; for in such case the reason would be at the time dethroned, and the power to exercise judgment would be wanting. But this unsoundness of mind or affection of insanity must be of such a degree as to create an uncontrollable impulse to do the act...