The opinion
Insanity was the defense relied upon by appellant. Upon that issue the case of defendant was mainly fought in the trial court. No contest was made as to the fact that appellant killed his wife. That issue gathered about it many facts upon which the jury had to pass. Kindred to, a part of, and incidental to insanity, was the mental condition and the facts and circumstances attending the homicide which indicated the mental condition, if the evidence should not be held to show insanity. This was of supreme moment to the defendant as it was to the fairness of the trial and the justness of the verdict and judgment. That issue brought forcefully the question of the mental status of the accused at the time that he fired the shot that took the life of deceased. It placed it in the forefront of this tragedy. This evidence shows the act was surrounded by facts that indicate appellant was not in condition mentally to have that cool, sedate and deliberate mind which would manifest such mental condition or the degree of malice which would justify, demand or authorize the jury to assess the death penalty.
I can not believe under this record that the defendant ought to be hanged, even though he was not insane at the time he slew his wife. These two questions, however, were in the case — insanity, first, and, second, a want of such coolness, sedateness and deliberation as proved that a capital crime had been committed. There were no former grudges or menaces incident or prior to the killing. It is true appellant slew his wife, but all the circumstances show the slaying occurred without deliberation, and under a rash, sudden impulse. The evidence shows that he had not anticipated his wife's acts, conduct and statements and her fixed determination to leave and not live with him, until immediately before the homicide. He sought to persuade her not to take that step. He threw his arms around and begged her. She, however, informed him of her fixed determination to leave him and go to her parents. He fired the fatal shot at once. He had prepared a new home for their future residence. Her dissatisfaction with this home led her to quit her husband. She disapproved sharply the home he had secured, stating she would not live in it. He seized a gun, fired the fatal shot, and then cut his throat with a view of taking his own *Page 122
life. His life, however, was saved by timely assistance. Just prior to this he had lost his little child, and on account of the heavy expenses incidental to its lingering illness he sold his home to meet that indebtedness. The facts will further show, without recapitulation substantially, that he had been worried and harassed and anxious about his child; not only so but about his wife, who had permitted the transfusion of blood from her body into that of her sick child to save its life. Some of these matters came suddenly upon him unexpectedly, and whether he was insane or not, it certainly showed a want of the ingredients that our law fixes as a basis for capital punishment. The determination to kill formed in a mind thus situated and environed, and so suddenly executed ought not to constitute basis for death penalty. If insanity be ignored as an issue, the facts, as I understand them, do not show any coolness of deliberation, premeditation or preparation for the homicide, and such malice as justifies capital punishment is absent. The fact that a woman is killed is not per se or perforce evidence that death penalty should be awarded. There may be absence of adequate cause that produces sudden passion to reduce to manslaughter, but still there must be evidence that would constitute a capital offense in order to authorize a capital verdict. If under such circumstances his mind could be cool, sedate and capable of cool reflection, it would be a remarkable incident. In this connection, I wish to quote from the prevailing opinion written by Judge Harper for the majority in this case, as follows: "Under the evidence the writer, had he been a member of the jury, would have been loath to assess the death penalty. It is true the record discloses no justification for the act, and we are firmly convinced that appellant was not insane. Yet he was a man given to drinking intoxicating liquors; had drunk some whisky that morning; he had been worried and harassed by the lingering illness and death and burial of his oldest girl; he believed that some people were trying to separate him and his wife, and when she told him she was going to quit him and go home, he was in that frame of mind which doubtless rendered him reckless of consequences, and while in such frame of mind he shot and killed his wife. There were, so far as this record discloses, no antecedent menaces or grudges on his part. It was an act done from an impulse arising from no sufficient or just cause. . . . There is no doubt of appellant's guilt of murder and he should be severely punished, but whether or not the circumstances called for the highest punishment known to the law is a matter of doubt in the mind of the writer." I agree with the above statement as far as it goes, but think the verdict ought not stand. In this connection I wish to state that appellant, upon shooting his wife, cut his own throat, thus seeking to destroy his own life; and on the morning of the occurrence, and before they reached their home he stopped at the doctor's office and had the wound of his wife treated. It was the wound made when the transfusion of blood from her to the child occurred. This showed solicitude and attention to her comfort, health and happiness.
I shall not enter into a discussion of the mental status of a suicide *Page 123
further than to say that fact does not afford evidence such as would lead to the belief that the suicide was in such mental condition as to justify the conclusion that he was legally guilty of capital homicide. I, therefore, can not concur in affirming the judgment on the facts. I do not believe the life of this man should be taken by solemn trial upon this character of evidence. I have a great respect for the verdict of a jury. It is a part of the law of Texas that they should be the exclusive judges of the facts proved, the credibility of witnesses, and the weight to be given the testimony. It is the province of the court to charge the law, and this question is as exclusive in the court as it is in the jury to pass on the facts. One is no more solemn than the other. One is no more binding than the other. We unhesitatingly reverse judgments where the court has ruled erroneously to the detriment of the defendant either in his charges or in the admission and rejection of testimony, yet the statute says that the jury shall receive the law from the court and be governed thereby. The jury may pass on the facts and are required to do so, and where the evidence shows beyond a reasonable doubt the guilt of the party of the offense of which he is convicted, this court should sustain that verdict, or if upon appeal it appears to us with reasonable certainty that defendant is thus guilty, the verdict should be sustained, but the jury has no more authority, legal or otherwise, to convict on insufficient facts than has the court to authorize a conviction on an erroneous charge or admission of illegal evidence. This court is empowered by the statute and required by its terms to reverse and remand, or reverse and dismiss, or affirm, as the facts and the law and justice require, but it all hinges around the great central proposition that the accused is entitled to a fair trial by an impartial jury, and the record must show that he had had the fair trial, and in addition the facts must sustain the verdict rendered. This court is not powerless to remedy the errors even of a jury, and our reports are full of cases where we have reversed for want of sufficient evidence. It is a part of the solemn duty of this court to prevent injustice as well upon the testimony as upon the law. The obligation is as binding on one proposition as upon the other. A fair trial and a just verdict on the law and the facts is the ultimate criterion. Both law and facts must overcome the presumption of innocence and reasonable doubt. I can not agree to sanction this verdict on this record.
The question of temporary insanity was a serious issue on the trial, and testimony was introduced to sustain it. He may or may not have been temporarily insane. The majority opinion, as did the verdict of the jury, finds that appellant was not insane. The majority opinion finds that the killing occurred under sudden impulse, but finds no error in the rulings of the trial court in regard to the issues of law or fact. I can not agree with their conclusion with reference to some of the questions arising on the issues of insanity. It will be noticed from the record that the only phase of insanity set up by appellant was that he was insane or crazy at the time of the homicide. There was no claim made and no issue tendered by him that he was insane at the *Page 124
time of the trial, or that he became insane after the commission of the offense, as set forth in articles 39 and 40 of the Penal Code. Article 39 of the Penal Code provides thus:
"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. No person who becomes insane after he is found guilty shall be punished for the offense while in such condition."
Of the three phases set out in the above quoted article only one was presented by appellant. He made no other issue on the question of insanity, presented no contention, and introduced no fact that he was insane at the time of the trial, or after he "committed the offense." He presented the sole issue on that matter, that he was insane at the time he committed the act. To this end he introduced evidence as shown by the record. The State was permitted to introduce evidence of varying character to show he was not insane subsequent to the homicide; that he was not insane while he was in jail, and not insane during his trial. The State was permitted to prove that he was simulating insanity during the trial before the jury. Timely objection was interposed to all this but promptly overruled by the court. Temporary insanity was the only issue presented by the defendant. The issue of permanent insanity was not in the case. On the issue as to temporary insanity the evidence must be more particularly and specifically directed to the mental status of the accused at the time and with reference to the particular act charged or committed. Giebel v. State, 28 Texas Crim. App., 151; Frizzell v. State, 30 Texas Crim. App., 42; Fisher v. State, 30 Texas Crim. App., 502.
I wish to notice two cases, Burt v. State, 38 Tex. Crim. 397 , and Tubb v. State, 55 Tex.Crim. Rep., cited in support of the ruling of the trial court admitting acts and conduct of appellant after the homicide, while in jail, and during the trial, and that he was then simulating insanity, and also to sustain expert testimony covering the same time. Other cases are also cited, but I notice casually the Burt and Tubb cases because of their prominence. Burt, in his trial, or his attorneys for him, set up insanity generally, and he further set up insanity at the time of and before his trial and after the homicide. In fact, his insanity as shown by that record, made an issue in the case, covered his life. I do not purpose to go into the facts of that case as the report of the case shows it with sufficient distinctness. It was, therefore, proper for the State to meet the issue as presented by Burt in that case. The State may meet any phase of an issue that is presented, and so may the defendant, but we have various phases of insanity in Texas, but as only one is relied upon in the trial, the others can not be issues. As I understand the record, the defendant objected by all legal methods he could command, and presents it to this court for reversal, that such testimony was introduced against him to meet his plea of temporary or partial insanity. His case was fought on the proposition that he was crazy only at the time of the homicide. Had *Page 125
he urged permanent insanity, as did Burt, in his trial, the State could meet it by such evidence as was at its command, but the State can not set up such issue for the purpose of showing it did not exist. It would be a straw-man built by the State to be destroyed by its own testimony — a false issue with false effect. The issue in the Tubb case, supra, was that he was a paranoiac. The general doctrine of paranoia, without going into detail, is a growing, developing phase of insanity. If once it has fastened itself upon the mind, it remains and continues to grow and develop. If a patient should become free of insanity, it would seem to prove that he was never affected with paranoism. Of course, it is unnecessary here to go into the different phases of this peculiar class of insanity. It was not in the case. These two cases, Burt and Tubb, can not be legitimately used in this case. They do not bear upon the issue here. I do not care to follow these lines of discussion. I have written briefly my views showing, as I understand the record, why the case should not be affirmed, first, on the facts, and, second, on the rulings of the court in reference to insanity. I have not discussed his guilt otherwise than as it pertains to the death penalty.
There is another phase of the case which I have not discussed. It was the speech or argument of one of State's counsel complained of in the record and by bill of exceptions. I am not clear that I understand just when a speech is reversible error and when it is not, but I think that the speech in this case was wrong, and appellant did what he could to get rid of it by objections, requested charges, etc., but it proved of no avail. If these steps had not been taken, it might be said, under some of the cases, that he should have asked special charges and taken other steps to rid himself of the obnoxious speech, but appellant did all this, and the speech is certainly, or ought to be held at least, outside of the pale of legitimate argument. As I stated, I do not care to elaborate my views. I have stated briefly these reasons, and I believe the case ought to be reversed and the cause remanded for another trial.