Yantis v. State, (No. 7720.)

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: Hawkins
• Citation: 255 S.W. 180
• Parties: YANTIS v. STATE.
• Docket Number: (No. 7720.)
• Decision Date: 30 May 1923

255 S.W. 180 YANTIS
v.
STATE. (No. 7720.) Court of Criminal Appeals of Texas. May 30, 1923. Rehearing Denied October 31, 1923.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Worth Yantis was convicted of stealing an automobile, and he appeals. Affirmed.

Ritchie & Ranspot, of Mineral Wells, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

HAWKINS, J.

Under an indictment charging him with the theft of an automobile from the possession of W. F. Wright in Palo Pinto county, Tex., on or about the 9th day of July, 1922, appellant was convicted and his punishment assessed at two years' confinement in the penitentiary. The court properly overruled appellant's motion to quash the indictment. We observe no defects therein.

The trial which resulted in the present conviction was begun on October 26, 1922. When the case was called, appellant presented a plea of former jeopardy. He alleges therein that he had at a former day of the term been put upon trial under the same indictment; that he had entered a plea of "guilty," which, over his protest, had been changed by the court to one of "not guilty;" that the case was submitted to the jury, which failed to agree, and which was discharged by the court after they had deliberated only about 3½ hours; that appellant's counsel declined either to agree or to enter objection to the discharge of the jury. The judgment entered by the court upon discharging

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the jury not being made a part of the plea, and not being before us in any way, it is therefore impossible for us to know what it recites. The bill of exception bringing the matter forward contains only the plea of jeopardy, with a qualification by the trial judge that —

He "was of the opinion that the jury could not agree and further consideration of the case would not accomplish any other result. This was after full investigation into the differences of the jury."

We cannot hold as a matter of law that the plea of jeopardy should have been sustained. The point turns upon whether the court discharged the former jury prematurely. That became a question of fact which upon evidence introduced and under appropriate instructions would have been for the jury in the instant trial. Bland v. State, 42 Tex. Cr. R. 286, 59 S. W. 1119; Vela v. State, 49 Tex. Cr. R. 588, 95 S. W. 529; Hipple v. State, 80 Tex. Cr. R. 531, 191 S. W. 1150, L. R. A. 1917D, 1141; Rodgers v. State, 93 Tex. Cr. R. 1, 245 S. W. 697; Dunn v. State, 92 Tex. Cr. R. 126, 242 S. W. 1049. No evidence appears to have been offered upon the issue; if so the record does not show it. There was no request that it be submitted to the jury. Under such circumstances we must presume the action of the court in discharging the former jury, and in declining to consider the plea of jeopardy based thereon, was correct.

The court properly refused the special charges brought forward in bills of exception Nos. 3, 4, and 6. They were clearly upon the weight of the evidence, and not authorized thereby.

Appellant defended on the ground of insanity. The theft is alleged to have occurred on July 9, 1922. There was introduced in evidence a judgment of the county court of Dallas county of date September 4, 1917, adjudging appellant to have been insane at that time. His father, who is a physician, testified that he took appellant to the insane asylum at Terrell, but on account of the crowded condition of the institution he could not be admitted; that he took him away under a promise from the superintendent of that institution to admit him whenever he had room. He was never placed in the asylum. The evidence shows that after this lunacy judgment was entered against him he attended the State University at Austin and lived at different places in the state. His father and another physician testified that in their opinion his state of mind upon the date of the commission of the theft was the same as it had been at the time he was found to be insane by the judgment of the Dallas county court. To rebut this the state offered evidence of his conversation and conduct with a schoolmate in Mineral Wells on Saturday before the theft of the automobile on Sunday. Appellant appeared in New Orleans with the stolen automobile on the 15th day of July, six days after it was stolen at Mineral Wells. The state also introduced in evidence the conduct and conversation of appellant in New Orleans from the time he arrived there with the stolen car until he was taken into custody by the officers. The learned trial judge seems to have recognized that the judgment of the county court finding appellant to have been insane in 1917 shifted the burden of proof to the state upon the question of insanity. He did not charge, as is ordinarily done where insanity is relied upon as a defense, that the presumption of sanity should be indulged and that the burden was upon accused to establish insanity by a preponderance of the evidence. His charge upon the issue is very concise. He instructed the jury that before they could convict appellant they must believe from the evidence beyond a reasonable doubt that he was guilty of the theft of the car, and also that the defendant was...