It seems well established by the authorities of this state as to not admit of controversy, that when at some time prior to the commission of the offense, the accused has been adjudged insane by a court of competent jurisdiction, which is not shown to have been set aside or legally vacated in any way, this shifts the burden of proof from the defendant to the state in regard to insanity. Under all the authorities, when one charged with crime seeks to defend upon the ground of irresponsibility by reason of insanity, the final test is whether or not the accused was so mentally deranged at the time of the commission of the alleged offense as not to know the right from the wrong in the particular transaction, and that it is a thing he ought not to do. While this is true, *Page 257 it seems also universally recognized that because of the presumption of sanity in ordinary cases, the burden of supporting a plea of insanity by one who interposes it, in such ordinary case, is put upon the accused, and he must show by a preponderance of evidence that he was insane at the time — but this burden shifts in case there has been an unvacated adjudication of insanity against him prior to the time of the alleged commission of such offense, and in such case the court should tell the jury that the state must prove beyond a reasonable doubt that at the time of the commission of the offense the accused was sane, etc. The shifting of this burden of proof may be a matter of value to the accused, and he is entitled to whatever benefit may arise by reason thereof.
We are not permitted under all the authorities to allow either the appellant or the state to amend a statement of facts on appeal. The uniform holding in this state seems to be that after the statement of facts has been agreed to, certified and filed same cannot be amended. Stephens v. State, 10 Tex.Crim. App. 120; Belcher v. State, 35 Tex.Crim. Rep.; Brande v. State, 45 S.W. 17; Gherke v. State, 59 Tex.Crim. Rep.; McBride v. State, 93 Tex.Crim. Rep.; Edwards v. State,98 Tex. Crim. 47; Hurd v. State, 99 Tex.Crim. Rep.. This prevents our considering the matters brought forward by affidavit by the appellant in connection with this motion, and intended to supply part of the judgment of conviction which was omitted by the court reporter in preparing the statement of facts. However, we are unable to bring ourselves to believe that there is not in the record already sufficient evidence that a regular judgment of lunacy was entered against appellant at a time prior to the commission of this alleged offense, and that there is not such evidence here that same has been set side, or in any way vacated, as to absolve the trial court from charging the jury that the burden of proof was upon the state to show beyond a reasonable doubt the sanity of the accused at the time of the alleged homicide.
Being unable to agree with the state's contention, the motion for rehearing will be overruled.
Overruled. *Page 258