The opinion
ON appellant’s motion for rehearing.
BEAUCHAMP, Judge.
In a motion for rehearing, with a 75 page brief, appellant presents his grounds for rehearing based on five propositions, and refers us to 123 cases upon which he relies to sustain his propositions. We have read this brief with great care and have concluded that only the fourth ground need be considered in this opinion.
It is appellant’s contention, in his motion for rehearing, that the prior judgment of insanity was res judicata of the question of appellant’s sanity at the time of the commission of the alleged offense for which he was indicted. To reach this conclusion it would be necessary to overrule every case on the subject in Texas, and specifically Witty v. State, 69 Tex. Cr. R. 125 , 153 S.W. 1146 , an opinion written by Presiding Judge Davidson on February 19, 1913. This opinion has stood the test of many *433 cases before this court. It has been frequently attacked and in no instance has the court seen fit to modify it or even criticize it. In the instant case it is specific authority, and is followed in the original opinion with sound application to the facts now before us.
The same contention was made in the Witty case as in the instant case, that is that the finding of the jury in the county court was conclusive in the trial for murder as to the insanity for the ten or twelve months prior to the trial in the county court, as found by the jury in that court in answer to questions submitted to it, and thereafter until another trial should find him sane. Referring to the facts thus indicated, we quote from the opinion as follows: “If these views are correct, and we believe they are, then the state was not concluded from the prosecution of the case by reason of the verdict of the jury in the county court, but that that judgment would be presumptive or prima facie evidence of insanity both before and after its rendition. This being correct, it shifted the burden of proof from the defendant to the state, and the state was required to assume the burden of proof in order to show that appellant was sane at the time of the homicide.”
We find from many jurisdictions varying opinions on the subject but, as further stated in the Witty case, “The rule, however, in Texas is equally well settled that wherever insanity has been shown by a judgment of the county court in an inquisition or of de lunático inquirendo, the presumption is that he is insane at the time set out or covered by the verdict of the jury if it overreaches and goes back in its finding as to the length of time the party has been insane, and it is equally the rule that the presumption of insanity obtains from that time forward.”
After discussing this rule, the opinion states further: “We, therefore, hold under the first question presented that the judgment of the county court adjudging appellant insane is not a bar to the prosecution for murder as contended by appellant, but is presumptive evidence of insanity, and makes a prima facie case, to be overcome by the state under the rules laid down.”
The foregoing tersely states the court’s conclusion on the very question before the court at that time which we have before us in the instant case. The law is sound. It meets every *434 need which the accused can claim for a fair presentation of the issue of insanity to the jury, and, at the same time, permits the state to conduct a prosecution in proper cases. If we should hold its res judicata a fiend could scheme to protect himself by going into another county and so conduct himself as to bring about a trial for insanity, then secure his release by the simple method revealed in the history of this case. After that he would be licensed to go about the state committing any offense, burglary, robbery, forgery, murder, or rape, and walk out free by the simple process of pleading res judicata to the question of insanity — and the state would be helpless. We have no evidence beyond the record that such is the case before us. If the plea should be sustained others would be licensed to arm themselves with such a judgment and walk out of the court room free of any number of offenses which they might commit.
We have no modification to make of the original opinion and the motion for rehearing is overruled.