Libertini v. State

KRUEGER, Judge. The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of five years. The record discloses that on the night in question, appellant and Joe Villegas went to a night club located at 117 North Flores Street in the City of San Antonio, where they engaged in playing a game of pool, and each also drank two bottles of beer. From there they started toward home. Just after they had crossed the street appellant became involved in a fight with some soldiers in which he came out second best. It seems that the soldiers knocked him down and then left. Appellant’s companion assisted him to his feet. From there he went to his apartment, procured a pistol, returned to the night club and fired four or five shots which caused quite a stampede by the musicians and some of the patrons of the place. It appears that he noticed Nick Kapsimales, Jr., going from the telephone booth to a small room and close the door behind him, whereupon appellant went to the door and sought to push it open. Failing in his attempt to open it, he shot through it and fatally injured the young man. When appellant was shooting promiscuously in all directions of the place, some of the men struck him with bottles, some with chairs and others cut and stabbed him, as a result of which he was “well worked over” and was in a serious condition. He was taken to the Robert B. Green Hospital, where he received medical treatment. On his trial appellant testified in his own behalf and stated that he had no recollection of shooting at anyone or doing any shooting at the night club; that a few days after the alleged occurrence his wife, on one of her visits, told him what had happened and that he had killed Nick Kapsimales, Jr. *250 Dr. J. A. McIntosh testified on behalf of the defendant that it was his opinion from the facts testified to by some of the witnesses that appellant, in the fight with the soldiers, received several blows on his head and face, and when knocked down, received a concusión of the brain, and as a result thereof he became temporarily insane and was not responsible for his acts. Appellant brings forward two bills of exception relating to the admission of certain evidence, and nine objections to the court’s charge. We will consider and dispose of them in their numerical order. However, the bills of exception relating to the admission of evidence are in question and answer form without any certificate from the trial court that it was necessary that they be in such form in order to fully present the matters complained of. Hence these bills cannot be considered by us. See Green v. State, 160 S. W. (2d) 940; Garza et al v. State, 122 Tex. Cr. R. 413; Tubb v. State, 139 Tex. Cr. R. 621, and authorities there cited. The appellant’s objections to the court’s charge, which will be hereinafter discussed, were timely made and will be disposed of in the order in which they are presented. By Objection No. 1 he complains of the court’s charge because the court instructed the jury relative to the law of temporary insanity produced by the recent use of ardent spirits. His objection thereto was that the issue was not raised by any evidence. The trial court, in qualifying the bill, refers to pages 11 and 12 of the statement of facts which he contends justified a charge thereon. An examination of the evidence as there recorded reveals that Manuel Areas testified that he was at the night club in question prior to the alleged homicide; that he (Areas), Joe Villegas and appellant each drank two bottles of beer while there; that appellant was feeling good. When asked if appellant was drunk Areas replied: “I can’t say yes, only he was, you know.” Joe Villegas testified that he and appellant were at the night club mentioned; that he had seen drunken men and had been with them; that from his experience with drunken men he would say that appellant was “feeling good”; that he could not give Villegas a good game of pool. “When he started upstairs he was staggering.” “When he started up toward the saloon he was staggering a little bit.” It occurs to us that the evidence raises the issue. We have said many times that when an issue is raised an instruction relative to the law on the subject should be given. By Objection No. 2 he complains of the following portion of *251 the court’s charge: “But if you have a reasonable doubt as to whether such temporary insanity, if any, caused by the immoderate use of intoxicating liquor has been shown by a preponderance of the evidence, you will give such defendant the benefit of such doubt.” His objection to such charge is that it is confusing and not clear whether it is confined to temporary insanity caused by the voluntary use of ardent spirits or temporary traumatic insanity caused by a blow. In construing the charge, the entire paragraph must be taken into consideration, and when that is done there is no doubt that it applied to temporary insanity produced by the recent use of intoxicating liquor, because it is not subject to any other reasonable construction. By his Objection No. 3 he complains of the court’s charge wherein he instructed the jury relative to the law on the issue of temporary insanity produced by a blow on the head and face. His chief objection to the charge was that the court instructed the jury that the burden was on the defendant to establish his plea of traumatic insanity by a preponderance of the evidence. Such is the law of this state. Consequently the charge was not subject to the objection urged thereto. By his Objection No. 4 he complains because the court instructed the jury that the burden was on the defendant to prove his insanity by a preponderance of the evidence but failed to charge that he need not prove it beyond a reasonable doubt. We see no merit in his contention. “Preponderance,” in legal phraseology, means by the greater weight of evidence. The jury, being men of average intelligence, could not have been misled by the charge. We therefore overrule his contention. ' By his Objection No. 5 he complains of the action of the trial court in declining to instruct the jury that if the defendant shot the deceased merely to frighten him or shot through the door merely to frighten or to compel him to leave the hall, he would not be guilty of murder. We see no merit in his contention. There was not any evidence in the case which raised that issue. By his Objection No. 6 he complains of the court’s charge on the ground that the court declined to charge the jury on the issue of negligent homicide and aggravated assault. There is no merit in this bill for the reason that the issues of negligent homicide and aggravated assault were not raised by any evidence adduced on the trial. *252 By his Objection No. 7 he complains because the court failed to instruct the jury as to the legal effect of the defendant shooting the deceased if he labored under the delusion that the deceased was the person who had recently assaulted him. This issue was not raised by the evidence. Consequently the court was eminently correct in declining to charge thereon. Objections Nos. 10 and 11 to the court’s charge have been carefully considered by us and are deemed to be without merit. Finding no reversible error in the record, the judgment of the trial court is in all things affirmed. The foregong opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.