This case is before the Court upon appellant's motion for a rehearing, and in view of the able and exhaustive presentation of the questions raised, we have carefully gone through the entire record and our original opinion, but find ourselves unable to come to any different conclusion from that which the original opinion announced.
The fact that appellant may have unquestionably been subject to epileptic attacks, would not change the rule adhered to by the announced decisions of this Court, requiring one accused of crime to satisfy the minds of the jury that at the very time of the commission thereof, his mind was in such condition that he did not know the nature and quality of the act; that it was an act that he ought not to do; or if he knew it was wrong, that he had not sufficient will-power to refrain from doing the same.
Referring to the record before us bearing upon the condition of appellant's mind at the time of the homicide, we find that no witness testified that at said time appellant was suffering from an epileptic fit, or giving any of the usual or recognized symptoms of what might be termed an attack of epilepsy. He was not in an epileptic condition shortly before the homicide, and it is to be observed that of the number of people who saw him directly afterwards, no one testified to a word, look, or action indicating to such person an epileptic condition, or which, upon being submitted to experts, was pronounced by them a symptom of epilepsy. *Page 640
Deceased was shot by a pistol by appellant, and after the pistol had been emptied of its six shells, appellant gave it to his son, and further armed himself with a shotgun. The wife of deceased, who hurried from her home, some 250 yards distant, immediately after the killing, and after she had armed herself with a gun, said without contradiction, when she got out into the road, appellant was standing inside of his lot and had his gun levelled on her, and said: "You go back and put that gun down or I will kill you." She testified that she then said: "You have killed my husband, and I must kill you," and that appellant then said: "You put that gun down."
Sheriff Matthews, who reached the scene of the homicide shortly after its occurrence, stated that when he got there, there was a crowd in the house, and that appellant was in the backyard with a shotgun.
We have again referred to these facts immediately attendant upon the homicide and bearing upon the mental condition of the appellant, because the question of sanity vel non, is one for the jury, and they have decided it in this case adversely to the appellant. It is true that two reputable physicians testified upon hypothetical statements, and gave their opinions as to the fact that the matters, stated, in their judgment, evidenced an abnormal condition of the mind. Dr. Goodall Wooten testified that he had seen appellant only one time — in 1916, and not at all during 1917; and Dr. Joe Wooten stated that he had seen him only a very few times since 1907; and further, that in his opinion, except when in an epileptic fit, or laboring under the epilepsy itself, the appellant was sane. The weight of all this character of evidence is entirely for the jury, and we are unable to see that a different rule should be laid down for epileptic insanity from that of insanity of any other character. In the Kirby case, 68 Tex.Crim. Rep., we held that there are no degrees of insanity, the one test being the knowledge of right from wrong of the particular act and the ability to refrain therefrom. However, we observe that in the instant case, in addition to the matters quoted in our original opinion, the trial court gave a special charge to the jury, telling them that if they believed that appellant was suffering from epilepsy, and that just prior to the homicide, deceased did some act, or spoke some word which caused the mind of appellant, by reason of said disease, to be dethroned to such an extent as that he did not know the nature or quality of the act he was doing, or did not know it was wrong, they should acquit him on the ground of insanity.
We regret that we are unable to agree with appellant that the argument of the district attorney was not within the record, and not in reply to arguments of appellant's attorney.
We also substantially repeat that we think the charge as given by the trial court, was a clear presentation of the law applicable *Page 641 to the facts. Charges of trial courts must be considered as a whole, and juries regarded as reasonable men, desirous of following the instructions of the court in deciding cases according to their best judgment, on their merits. In more than one place in this charge, the jury were told that they must view the matter from the standpoint of the appellant alone, and decide whether or not the words, acts, or conduct of the deceased produced in his mind a reasonable fear of death or serious bodily injury, and that if such a condition did exist in his mind, that his right of self-defense was complete and he should be acquitted. If there was any attack at all it was actual and not threatened, and if there was any danger evidenced it was real and not apparent.
Believing the original opinion correct, the motion for rehearing is overruled.
Overruled.