Ex Parte Maple

There is presented, in Chambers, by attorneys for J. J. Maple an application for writ of habeas corpus and for mandamus. It is charged in the application that J. J. Maple is confined in the penitentiary at Huntsville, Texas, and will be executed under a judgment of Criminal District Court No. 1 of Harris County, Texas, on November 28th. There is an application for writ of mandamus ordering the Hon. Whit Boyd, Presiding Judge of the Criminal District Court of Harris County, to proceed with the trial of J. J. Maple to determine his sanity. From the attached papers and from the records of this court the Judges of the Court of Criminal Appeals are aware of the following facts: *Page 138 The motion for new trial by J. J. Maple was overruled on the 18th day of October, 1930. He declined to appeal to this court. The date of his execution was set for November 18, 1930, but was delayed by the Governor of the State to await a decision of this court upon application for mandamus heretofore presented. On the 21st day of November there was filed in the Criminal District Court aforesaid an affidavit of Charles H. Mayer asserting that the said J. J. Maple was insane, and seeking a trial on the issue of insanity as authorized and required under the provisions of Title 12 of the Code of Criminal Procedure of this State. Upon a hearing the affidavit was stricken from the record and the relief requested denied by the Criminal District Court aforesaid. Attached to the application for writ of habeas corpus and mandamus before this court there is an affidavit by F. O. Fuller, who was the attorney appointed by the court and who defended the said J. J. Maple upon his trial for murder in said court, said affidavit of F. O. Fuller asserting that he believes and has reason to believe that said J. J. Maple is insane. This last named affidavit does not appear to have been presented to the trial court. The order of said Criminal District Court made on the 24th of November, 1930, as it appears in said application, reads as follows: "On this the 24th day of November, A.D. 1930 came on to be heard the motion of F. O. Fuller, claiming to represent the defendant J. J. Maple for an insanity trial in the above entitled and numbered cause; and appeared the parties, the State by her District Attorney and F. O. Fuller in person, and the defendant not being present, the said motion and evidence having been heard by the Court and the argument of F. O. Fuller thereon, the Court is of the opinion that the said motion should be overruled and refused, and that the affidavit of insanity should be stricken from the docket of this court. "It is therefore considered, ordered and adjudged by the Court that the said motion for an insanity trial be refused and overruled and that the said affidavit of insanity should be stricken from the docket of said Court, to which order and judgment of the Court the said F. O. Fuller excepts." The action of the Criminal District Court in denying the insanity trial is a matter of which this court has no jurisdiction on appeal. As the matter comes here the presumption is indulged that in refusing to order the insanity trial the trial court acted within its discretion. *Page 139 In the statute, Title 12, above referred to, it is provided as follows: "Art. 921. If it be made known to the court at any time after conviction, or if the court has good reason to believe that a defendant is insane, a jury shall be impaneled as in criminal cases to try the question of insanity. "Art. 922. Information to the court as to the insanity of a defendant may be given by the affidavit of any respectable person, stating that there is good reason to believe that the defendant has become insane." In passing upon the affidavit it was the duty and discretion of the trial court to determine the matter set forth in the two articles of the statute above quoted. A "respectable" person is defined in the law books as synonymous with a "credible, disinterested witness." Words Phrases, 1st Ed., p. 676. From the record before us it must be assumed that it had not been made known to the trial court that appellant J. J. Maple had become insane by the affidavit of a respectable person as defined in the statute or otherwise, and the judgment of the trial court under such circumstances refusing to conduct an insanity inquiry is conclusive upon this court. The affidavit of F. O. Fuller, attached to the application to this court, is without weight so far as it affects this application, for the reason that there is no procedure by which an insanity hearing is required or authorized because of an affidavit filed in the appellate court. For the reasons stated the application for writ of habeas corpus and for mandamus will be refused. Refused. HAWKINS, J., absent.