This case was affirmed at the last Austin term of this court, and now comes before us on motion for rehearing.
Appellant strenuously insists that the action of the court in affirming *Page 384 this case was erroneous: First, because the court entirely failed to charge on that phase of insanity involving appellant's control of his will power, — that is, emotional insanity; second, because the court instructed the jury that, before the plea of insanity could avail defendant, it must be clearly proved. And in this connection he urges that the court misunderstood the testimony in reference to the manner in which the killing was done; that the court was in error in stating that there was no apparent connection between the act of killing and the insanity proven. In connection with this matter, we would further remark that counsel has called our attention to certain testimony which he claims directly connects the killing with the insanity proven, to wit: That T.W. Hurst, the father of appellant, in his testimony, states that after the difficulty between appellant and deceased at the engine, appellant came to him at his office for a settlement, and asked for his time. As he started to leave, he remarked, "That woman has hired Thaison to persecute me." This was about an hour before the shooting. After the shooting, and after appellant was placed in the calaboose, his father called on him; and further testified that appellant again talked to him about the Memphis woman, "and that he was induced to give her name at the calaboose by telling him we would go to Memphis, and do something to prevent her from interfering with him any further, and he wanted us to go there and frighten her away." Appellant further remarked to witness, "that he thought the woman was tampering with the witnesses," and as the witnesses would testify on the trial he would whisper and say, "That woman has got a word in it." At the jail, on the day of the killing, this witness testified that appellant stated that "the woman had emissaries in the jail, and that everybody was acting in obedience to her bidding." Our attention is further called to the acts and conduct of appellant in the jail, and especially to a number of letters in the record, written by him to his mother from the jail. We have examined all of these carefully, and in our opinion they are not the product of an entirely sane mind.
Recurring to the original opinion, it will be observed that we there held that the testimony tended to show insanity, as measured by the right and wrong test, but failed, in our opinion, to show that there was such defect of understanding on the part of appellant as showed that he did not know the right and wrong of the particular act charged against him. We further intimated that there was no testimony suggesting that, although appellant may have known the right and wrong of the particular act, he was impelled thereto by an insane, irresistible impulse; so that it did not become necessary for the court to give a charge on that phase of the defense, although one was requested. The Court's charge on the subject of insanity was given in full in the original opinion of this court, and it was not necessary here to repeat it; but nowhere is there any charge on irresistible impulse or emotional insanity. On that subject appellant requested the following charge, which was refused by the court, to wit: "The responsibility of the defendant *Page 385 on his plea of insanity may be determined by inquiring, first, did the defendant have sufficient mental capacity to appreciate the nature of the particular act of killing at the time it was done, or did he have sufficient mental capacity to know the right or wrong of the particular act at the time and under the circumstances? Second, did he know that he was doing wrong in killing William Thaison at the time and under the circumstances? and third, had he sufficient mental capacity and will power to choose whether he would or would not kill William Thaison at the time he did kill him? All these questions must be determined in the affirmative in order to hold defendant responsible for the killing charged in the indictment; and if you, from the evidence, find a negative answer to either one of said questions, you should acquit defendant." We stated in the original opinion that the case of Leache v. State, 22 Texas Criminal Appeals, 279, recognized the doctrine of irresistible impulse. More accurately speaking, said case can not be considered as an authority for the doctrine. The court merely conceded in that case that appellant had no ground of complaint, because the charge of the lower court was ample on the subject of irresistible impulse. The leading text-books, however, citing a number of authorities, do sustain the doctrine. See 1 Whart. Crim. Law, pars. 43-45, inclusive; Busw. Insan., pars. 439-445, inclusive; 1 Bish. Crim. Law, secs. 383-387, inclusive. These authorities draw a distinction between moral insanity and irresistible impulse, holding that moral insanity is no defense to a criminal charge, while an irresistible impulse of an insane person is a defense. We quote from Mr. Wharton (section 150) as follows: "The conclusion we must reach therefore is that an irresistible homicidal impulse in an insane person is a good defense, though such person was able to distinguish between right and wrong. With a sane person, however, it is not a defense, as the law makes all sane persons responsible for their impulses." Mr. Buswell holds as an accepted theory that there are persons who are insane, and who may know the right and wrong of a particular act, and yet be unable to choose the right, being impelled to the wrong by an insane, irresistible impulse. We quote from section 440 as follows: "It is to be observed that every act done by an insane person which is the direct outgrowth of his disease is the result, in a certain sense, of an uncontrolable impulse, since it is not the act of a free agent. This view has been expressed in a number of American cases. Thus it was held that if an insane affection was the efficient cause of the prisoners' act, and that, if otherwise, he would not have done the act, he should be acquitted. But, in order to an acquital, it must appear that the insanity was of such a degree as to create an uncontrollable impulse by overriding the reason and judgment and obliterating the sense of right and wrong as to the particular act done, and deprive the accused of the power to choose between them. So, in a Pennsylvania case, it was held that insanity, as a defense, must be so great as to control the will, and take away the freedom of moral action." And the courts cite with approval the expressions *Page 386 of Gibson, C. J., "that it [insanity] must amount to a delusion or hallucination controlling the will, making the commission of the act a duty of overruling necessity." Mr. Bishop, on his part, becomes impatient with those who hold to a contrary doctrine. We quote from his work on Criminal Law (volume 1, section 383b) as follows: "Now, if this class of our judges really mean what they say, they are conspiring to overturn an accepted, old, and fundamental part of the law of the land, and with it an immutable part of the law of nature; for, as we saw in our chapter on 'Necessity and Compulsion,' and as even all uneducated persons know, the law of necessity is the highest law known to man, and it is almost the only law which no mail ever lived and broke. It is parcel of the law of the land, supreme over all other law; supreme over even our written constitutions; and all our other laws are expounded as by implication containing the exception that they shall not be deemed violated by any act which necessity has compelled. And that there is a solitary incumbent of any judicial bench in the United States, high or low, who really believes and means to assert that our law punishes any man for what he does under a necessity which it is impossible for him to resist, the present writer does not believe, and, if he did believe it, he could only speak of it as an unprecedented horror."
We would observe here that this view appears to be recognized by all the text-books, and supported by the weight of authority. As before observed, we said in the original opinion that it was not necessary to discuss the doctrine of irresistible impulse by all insane person, because, in our conception, the facts of the case did not require all application of the principle. On the motion for rehearing we have been aided by an able brief and argument on behalf of appellant by his counsel, and we have given this matter a further examination, but we are not prepared to change our views already expressed on this subject. There is nothing of a distinctive character in the testimony to indicate that appellant acted on all irresistible, insane impulse. If he was crazy at all, the testimony would suggest that he was incapable of discerning the right and wrong of the particular act which he did, and the court's charge presented this phase of the case. If there was any tangible testimony raising this issue of irresistible impulse, in the opinion of the writer, the court should have given the charge requested, or one similar in terms. As to the question of insanity, the court having presented the law of the case in the charge given, we can not say that the evidence does not sustain the verdict, and the case can not be reversed on this ground.
As stated before, appellant further contends that the court committed an error in instructing the jury that, before appellant could avail himself of the plea of insanity, such insanity must be clearly proven; and he urges that this lays a heavier burden upon appellant than is authorized by our decisions, which merely puts the burden of proof on appellant to establish his insanity; indeed, that "clearly proven" is tantamount to saying that appellant must prove his insanity beyond a reasonable doubt. In this connection we are referred to a number of cases, all civil: Swinney *Page 387 v. Booth, 28 Tex. 113; McBride v. Banguss,65 Tex. 174; Railway v. Matula, 79 Tex. 577 [79 Tex. 577]; Railway v. Harriett, 80 Tex. 82 [80 Tex. 82]; Railway v. Stewart (Texas Civ. App.), 20 S.W. Rep., 962; Rider v. Hunt (Texas Civ. App.), 25 S.W. Rep., 315. These cases sustain the contention of appellant, — that is, in civil cases, as we understand it, the burden is on the party holding the affirmative of an issue to establish the same by a preponderance of evidence before he is entitled to recover; and, if the court shall do more than to so instruct the jury, that it will be error; and if the court should tell the jury that the plaintiff must abundantly prove, or prove by a preponderance of evidence to the satisfaction of the jury, or that the plaintiff must prove his case by a preponderance of the evidence beyond a reasonable certainty, that it will be error. We note, however, in McBride v. Banguss, supra, that Judge Stayton uses this language: "In civil cases juries should ordinarily find in accordance with the preponderance of the evidence, and the charge which requires a plaintiff to make satisfactory evidence, or clear and satisfactory evidence, may be understood to mean a higher degree of proof than is meant by a preponderance of the evidence; and this is especially true when charges containing such language are often repeated." So it would appear that if there were no explanation of this charge of the court, and we followed the rule on this subject recognized in civil cases, the charge of the court here complained of did lay an additional burden on appellant in establishing his plea of insanity. However, the court gave a charge at the instance of appellant, which, we think, entirely explained the court's charge, and relieved it of the criticism urged by appellant, to wit, the court gave the following: "The defendant is not required to establish his insanity beyond a reasonable doubt. It is sufficient if the evidence is sufficient to reasonably satisfy your minds of the existence of that fact." Aside from this, the charge given by the court has been held a proper one in a number of cases decided by this court. See Clark v. State, 8 Texas Crim. App., 350; Webb v. State, 9 Texas Crim. App., 490; King v. State, 9 Texas Crim. App., 515; Smith v. State, 19 Texas Crim. App., 95; Giebel v. State, 28 Texas Crim. App., 151. The latter case quotes with approval from People v. Hamilton, 62 California, 377, as follows: "In the connection in which the words are used, to say that the 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 a 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 humanity, presumes that men are oftener honest than dishonest, the preponderance must clearly appear. Thus, only, can the fact of fraud or insanity be satisfactorily proved." On this subject the books lay down three rules: First, in order to acquit, the proof must show beyond a *Page 388 reasonable doubt that the accused was insane; second, in order to convict, when the plea of insanity is made and supported by the evidence, the accuser must show beyond a reasonable doubt that the accused was sane; third, when insanity is alleged, and the allegation is supported by testimony, the accused is to convicted or acquitted, according as a fair preponderance of all the evidence in the case shows him to be sane or insane when the act was committed. See Busw. Insan., p. 183. Mr. Thompson, in his work on Jury Trials (volume 2, pars. 2526, 2527), discusses the same question, and cites the rule as follows in different States, and he shows that a number of States follow the rule as laid down in this State; that it is proper for the court to charge that appellant must reasonably satisfy the jury that he was insane at the time of the commission of the act by a preponderance of the testimony. See Leache v. State, 22 Texas Crim. App., 279. A number of States and the United States Supreme Court have adopted a different rule on this subject, to wit, that, when the issue of insanity is made, the burden of proof is on the prosecution to show the sanity of appellant beyond a reasonable doubt. However, such has not been the rule in this State, and we adhere to the rule as heretofore laid down. We would observe, however, that in charging on the rule as recognized in this State the court has performed its full duty in instructing the jury that where a defendant relies on insanity, it is only sufficient that he establish this defense by a preponderance of the evidence, and that it is not necessary for him to prove it beyond a reasonable doubt; and especially where the charge uses the expression "clearly proved" this should be qualified by an instruction to the effect that this does not mean that it must be established beyond a reasonable doubt, but merely by a preponderance of the testimony. We do not believe there was any error in the court's charge on this subject as given, when modified and explained by the requested charge which was given. The motion for rehearing is accordingly overruled.
Motion overruled.