Giebel v. State

White, Presiding Judge. 1. ‘In his motion to quash, the defendant excepted to the sufficiency of the indictment, both as to its form and substance. As to form, “ because it does not appear to have been presented in the proper court, to-wit, the Criminal District Court of Galveston and Harris Counties.” On its face it is stated that the same was presented “in the Criminal District Court of the county of Galveston, State of Texas;” and it is insisted that there is no such court. Section 1, article 5, of the Constitution, to which we are cited in support of this position, simply provides that “the Criminal District Court of Galveston and Harris Counties shall continue with the district, jurisdiction, and organization now existing by law until otherwise provided by law.” The act of the Legislature creating said court was adopted July 23, 1870, and was entitled “An act to organize and define the powers of the Criminal District Court in and for the counties of Galveston and Harris, and to prescribe the duties thereof.” Pasch. Dig., art. 6135, et seq. It is nowhere declared in the said act that the name of the court should be “the Criminal District Court of Galveston and Harris Counties.” That such was not intended to be the name of the court, and that it was intended that the name of the particular court should be determined by the court name of either of the counties in which the court proceeding was had or session held, as is the case in other districts composed of more than one coiinty, is, we think, manifestly apparent from section 3 of the Act of July 23,1870, which provides: “The said court, in each county, shall have a seal similar to those of the District Court, with the words Criminal District Court of-county,” etc. It certainly never could have been intended that said court, when sitting in either county, should have jurisdiction of and try cases from both counties indiscriminately. We are of opinion that the words “ the Criminal District Court of the county of Galveston,” or — 168 — “the Criminal District Court of Galveston County,” would either be proper and sufficient as the name of said court when held in Galveston County. This objection, therefore, to the form and manner of the presentment of the indictment was without merit and was properly overruled. Appellant’s objections for substance were: “ Because the indictment does not charge express malice; because it does not charge murder; and because it does not state where upon or in the body of the deceased the alleged fatal wound was inflicted.” The indictment is good, both in form and substance. It was not necessary to allege that the act was committed with “ express malice.” All that was necessary was that it should have been, as was alleged to have been done with “ malice aforethought.” Penal Code, art. 605; Willson’s Crim. Forms, Nos. 388, 389; Sharpe v. The State, 17 Texas Ct. App., 486, and authorities collated, and a number of decisions since. See also Willson’s Crim. Stats., sec. 1035. It was and is not necessary to allege in what particular portion of the body the mortal wound was inflicted. Wilkerson v. The State, 2 Texas Ct. App,, 255; Williams v. The State, 3 Texas Ct. App., 123. Neither of these objections for substance were well taken, and the court properly overruled them. 2. A motion was made by defendant to vacate and set aside the special venire, and this motion was also overruled. As shown by the minutes of the court, at the March term commissioners were appointed to select jurors for the May term, which was the next succeeding term. By inadvertence in heading the several lists of the jurors selected, these commissioners wrote “April term ” instead of “ May term,” and so returned in the sealed envelope delivered by them to the judge. There being no “April term” of said court, it is insisted that the lists could not legally be used for the May term, or any other term, because the statute requires expressly that “the several lists of names drawn shall be certified under the hands of the commissioners to be the lists drawn by them for said several weeks, and shall be sealed up in separate-envelopes and indorsed, ‘ Lists of petit jurors for the-week of the-term of the -court of- county.’ ” Rev. Stats., art. 3032. The contention is, in substance, that the jurors must be selected for the term at which they are to serve, and that “the lists” must show the term precisely for which they have been selected, or else the jury will be an illegal one. As before stated, the minutes of the court show that the commissioners were selected to draw jurors for the May term, and the bill of exceptions recites that after the performance of this duty they came into court, “ and delivered to the judge of the court, in sealed envelopes, the lists of persons selected by them to serve as grand and petit jurors at the next May term of this court.” It is not stated or shown anywhere in the bill of exceptions that these envelopes were not indorsed properly as to the lists of the jurors, and properly as to the term of the court; it is only — 169 — •objected that the wrong term was stated in “the headings of the lists” sealed up in the envelopes. The presumption is that the envelopes were properly indorsed, notwithstanding the headings of the lists inside made the mistake as to the month in which the next term was to be held. If the sealed envelopes were properly indorsed, then that indorsement would correct the mistake or inadvertence made in the headings of the lists; and moreover, the statute does not require “the headings of the lists” to be indorsed in the same manner as the envelopes are. As presented in the bill of exceptions no legal requirement appears to have been neglected or omitted in the matter complained of. 3. It is insisted that the court should have granted defendant’s application for a continuance to the next term of the court, in order to enable defendant to testify as a witness in his own behalf, under the provisions of the Act of the Legislature, approved the 4th day of April, A. D. 1889, authorizing and permitting a defendant in a criminal action to testify in his own behalf. Gen. Laws 21st Leg., p. 37. Defendant also proposed to testify in the case, and the court refused him the privilege. His contention on the last point is that the bill contains an emergency clause, and expressly enacts in the body of the bill, “that this act take effect from its passage.” By section 39 of article 3 of the Constitution, it is declared that “Ho law passed by the Legislature, except the general appropriation act, shall take effect or go into force until ninety days after the adjournment of the session at which it was enacted, unless in case of an emergency, which emergency must be expressed in a preamble or in the body of the act, the Legislature shall, by a vote of two-thirds of all the members elected to each house, otherwise direct; and said vote to be taken by yeas and nays, entered upon the journals.” In the publication of this act it is shown that the same did not receive the vote of two-thirds of the members elected; and consequently, the emergency clause did not become operative so as to take it out of the general rule that ninety days must elapse after adjournment before the act became effective. The session was adjourned on the 6th day of April, and the law did not go into effect until the 6th day of the following July. This trial took place on the 21st day of May, 1889, and the law not having gone into effect, defendant could not claim, and was not entitled to, the benefits and privileges it afforded. Hor was he entitled to have his case continued until said act should become operative in order that he might avail himself of the rights it accorded. 4. One A. Boemer, summoned as one of the special veniremen, on his examination answered, under oath, that he had a bias in favor of defendant, though he stated that such bias would not prevent him “from trying the case fairly and impartially as between the State and defendant.” He was challenged for cause by the prosecution, and the challenge was sustained by the court. There was no error in this ruling. Code Grim. — 170 — Proc., art. 636, subdiv. 12; Mason v. The State, 15 Texas Ct. App., 534; Pierson v. The State, 18 Texas Ct. App., 524. Ho injury is shown, and no objectionable juror was forced upon the defendant. Loggins v. The State, 12 Texas Ct. App., 65; Bolding v. The State, 23 Texas Ct. App., 172; Henning v. The State, 24 Texas Ct. App., 315. 5. An exception was saved by defendant to the refusal of the court to-allow him to prove by his witness Cossar “statements made to him by defendant three hours before the homicide as to threats that had been made-by deceased against defendant on that day; and the further statement that deceased, on the same day, assaulted defendant with a knife. This was offered as part of the res gestee.” Statements of the defendant made-three hours before the homicide were not res gestee as to the homicide, and were not admissible as evidence in his behalf. “ To be admissible as resgestee, the declarations must stand in immediate causal relation to the act, and become part either of the action immediately producing it, or of the action which it immediately produces.” Bradberry v. The State, 22 Texas Ct. App., 273. A defendant can not make evidence for himself by his-acts and declarations which were not part of the res gestee. Willson's Crirn. Stats., sec. 1047. Again, the court refused to permit defendant to prove by his witness Henry Bee, who was a policeman, that the members of deceased's family had requested the witness to keep the deceased from their house, as they were afraid of him. This testimony, it was claimed, was in rebuttal to evidence brought out by the State. We find no evidence in the record to-which this evidence could properly be called rebutting evidence. That, the State might have been permitted, without objection from defendant, to elicit immaterial and irrelevant testimony in line or keeping with that-proposed, is no reason why irrelevant, immaterial, and incompetent evidence for defendant should be admitted when promptly and properly objected to by the State. 6. Defendant’s witness Beissner testified to facts upon which he based his opinion that defendant was insane. On cross-examination the prosecution asked the witness whether, in his opinion, defendant knew right from wrong? The question was objected to by defendant because too general; that the inquiry should be restricted and limited to defendant’s mental capacity and knowledge as to the right and wrong of the particular act-charged. In Carter’s case, 12 Texas, 500, and cited by appellant's counsel, it was held that the question in cases of insanity is whether the defendant was capable of distinguishing right from wrong, which capacity is, necessary for the existence of a criminal intent. In cases of partial insanity the question is whether the defendant was capable of distinguishing right from wrong in the particular connection in which the unlawful act-was done. The effort upon this defense was to establish general and not partial insanity. General insanity renders the party wholly irresponsible — 171 — for his acts, and general proof as to a knowledge of right and wrong is an: appropriate test. In cases of partial insanity the inquiry must be more particularly directed to the mental status at the time of, and with reference to, the particular act charged. This is with reference to the character of the evidence adduced in support of or in refutation of the truth of the plea. When the court is charging the jury in a case where the plea is interposed, whether the issue be general or only partial insanity, the test is whether the defendant knew the right or wrong as to the particular act charged, and such, it seems, should and must be the nature of the instruction. Erwin v. The State, 10 Texas Ct. App., 700; Thomas v. The State, 40 Texas, 60; Willson’s Crim. Stats., sec. 81. In this case it has-not been made to appear that the question asked, and the answer thereto, were illegal or objectionable, or that defendant has in any manner been injured. It does not appear that defendant was denied the right to examine the witness fully as to defendant’s knowledge of right and wrong with reference to the very particular act with which he was charged. 7. Defendant proved by his witness Du Four, and others, that shortly before the homicide the deceased, Crawford, had boasted that he, deceased, had had carnal intercourse with defendant’s former wife, and that-he had assigned that as the reason of the animosity and hostility existing-between them. To meet this evidence the prosecution was permitted to prove by Mrs. Bathman, defendant’s divorced wife (who had been divorced in October prior to the killing, which was in December), that defendant had never charged her with nor suspected her of improper relations with deceased, and that she had never had such improper sexual relations with deceased. Objection to this evidence was that it was irrelevant and not in rebuttal of any evidence introduced by the defense. We are of opinion that the evidence was relevant and in rebuttal of defendant’s witnesses, and was not inadmissible upon the grounds of objection urged to it. The statutory inhibition against husband and wife testifying to communications had between the parties whilst the marriage relation subsisted (Code Crim. Proc., art. 734), was not urged as an objection to the evidence. 8. Special instructions were requested to be given the jury upon the law of manslaughter, accidental or negligent homicide, and insanity, which were refused by the court. Ho charge was given by the court upon manslaughter or accidental and negligent homicide. As to manslaughter and negligent homicide, we are of opinion that in no phase of the evidence are such issues fairly and legally raised, and that the court did not err in refusing to give such instructions. The court expressly charged the jury as to accidental homicide, that in order to convict they must find that the killing was intentionally done. In the light of the facts this was sufficient. — 172 — Upon the question of insanity the charge was in the language of approved forms. Clark v. The State, 8 Texas Ct. App., 350; Smith v. The State, 22 Texas Ct. App., 317; Willson's Crim. Forms, No. 715. It is insisted that the instruction is erroneous, and is a charge upon the degree or measure, if not upon the weight, of evidence, in that it requires the insanity to be clearly proved to establish a defense on that ground. This identical position is discussed and settled in support of the instruction in Smith's case, 19 Texas Court of Appeals, 95. In The People v. Hamilton, 62 California, 377, the Supreme Court of California say: “In the connection in which the words are used, to say that insanity must be 'clearly established,' is not to say that the evidence must more than preponderate, but only that the preponderance must be plainly apparent. Such must be the case in every instance where the affirmative of an issue is sought to be established and a peculiar presumption overcome. There may be greater or less degree of lucidity, but the preponderance must be distinctly perceptible. * * * In civil cases fraud is proved by a preponderance of the evidence, yet, inasmuch as the law, to the credit of human nature, presumes that men are of tener honest than dishonest, the preponderance must clearly appear. Thus only can the fact of fraud or insanity be 'satisfactorily proved.' Under the rule, now well settled in this State, 'to render his plea of insanity available as a defense, it devolves upon an accused to establish his insanity by a preponderance of evidence to the satisfaction of the jury.’" Leache v. The State, 22 Texas Ct. App., 281. We are of opinion that upon the law of self-defense the charge of the court was as full and explicit as the facts demanded. That portion of it with reference to the right of an officer to use a deadly weapon upon an arrested party in his custody only when in the necessary defense of his own person from serious bodily injury then about to be inflicted upon him by such prisoner, is not, in our opinion, obnoxious to the objection urged that it bases the right of self-defense upon the actual existence of danger, and not upon its reasonable appearance. “The whole doctrine of self-defense rests upon the comprehensive principle of reasonable necessity, and apparent reasonable necessity is the whole law of defense. It is the right to do whatever is reasonably necessary to be done in Avarding off or avoiding serious injury under the circumstances of the case." Weaver v. The State, 19 Texas Ct. App., 548. The defense must appear necessary, whether it arises from real or apparent danger. We have discussed all the questions raised and so ably presented in the brief of counsel for appellant, and upon the voluminous record submitted in the case we have found no reversible error. The judgment is affirmed. Affirmed. Hurt, J., absent.