The offense is murder, the punishment assessed is confinement in the state penitentiary for life.
The state's testimony, briefly stated, shows that on the 14th day of December, 1937, appellant, Warren and the deceased went from Borger to Wheeler as witnesses to give testimony in a certain case then on trial. In the afternoon they drove to Shamrock, where appellant purchased two pints of whisky. They consumed one of these before they started on their return trip and had practically consumed the second when the homicide occurred. All three of the men were riding in Warren's automobile. Warren was driving. The deceased was sitting on the right side of Warren and appellant was on the rear seat. A few seconds prior to the time of the fatal shot, the deceased asked Warren for a cigarette. Warren handed a package to him and he passed it on to appellant. After the deceased had lighted his cigarette, appellant apparently became angry because they failed to light his cigarette for him and made the remark: "You bastards won't let me light." Whereupon the deceased knocked the ashes off his cigarette and passed it to *Page 288 appellant to light his thereon, which he did. After they had travelled a short distance, appellant commanded Warren to stop the car and ordered them to get out. As the deceased was in the act of doing so, appellant shot and killed him.
Appellant's first complaint is that the court erred in declining to sustain his motion for a separate trial on his plea of present insanity. The court qualified this bill of exceptions and in his qualification states that the trial of the case was set for January 24, 1938, and a special venire was drawn and summoned; that at 10:00 o'clock on said date, the defendant announced ready for trial and he was duly arraigned and pled not guilty. Thereupon the examination of the prospective jurors began and at 6:45 P. M. the selection of the jury was completed and they were sworn in as prescribed by law. The jury was then retired in charge of an officer and a recess was taken until 10:00 A. M. of the following morning. At 7:00 P. M. on January 24th, defendant, through his counsel, filed with the clerk of the court an affidavit, signed by Mrs. Ben Chapman, which was immediately presented to the court for consideration. On the following morning at 10:00 o'clock, defendant filed his application for a sanity hearing based upon said affidavit. The court declined to grant his request for a sanity hearing separate from the trial on the offense charged in the indictment for the reason that defendant had had the affidavit for some time before the same was filed, but elected to withhold it, announced ready for trial on the murder charge, selected a jury from the special venire and presented it after the regular jury for the week had been discharged.
The court based his action on the theory that the request must be made prior to the time of announcement of ready for trial, unless good and sufficient reasons are assigned why the same was not timely made; that defendant's delay in filing the affidavit and making the request was an election, or at least a tacit concurrence by him to be tried on the indictment for the offense therein charged, subject to his plea of insanity, both as to the time of the commission of the offense and at the time of the trial. The court stated at the time that the issue of insanity, both as to the time of the commission of the offense and at the time of trial, would be submitted to the jury and this was done. Appellant has accepted the bill with the court's qualification thereto and is bound thereby.
It seems to be the settled law of this state that when a person is charged with an offense and files an affidavit of present insanity, accompanied by a request for a separate trial on that *Page 289 issue, he is entitled to it. See Art. 34, P. C., Guagando v. State, 41 Tex. Rep. 626; Ramirez v. State, 92 Tex.Crim. R.,241 S.W. 1020; Norford v. State, 34 S.W.2d 290; Pickett v. State, 113 Tex.Crim. R.; Soderman v. State, 260 S.W. 607; Rice v. State, No. 19815, delivered by this court on October 26th, but not yet reported. (135 Tex.Crim. Rep.).
But this must be done at a proper time and we think the proper time for such a request is before announcing ready for trial on the charge in the indictment. Otherwise, the defendant might wait until jeopardy had attached and then require the court to proceed with the trial of the case to its conclusion to prevent former jeopardy and in case of a conviction require the court to give him a new trial, which in most instances, would amount to a continuance of the case and give him two trials on the merits. Furthermore, it would prevent a speedy public trial as provided for in the Constitution.
It seems to us that such a procedure would interrupt the speedy and orderly procedure in the trial of criminal cases in which the issue of insanity might be raised. It occurs to us that the rule herein announced is in harmony with the provisions of Art. 516, C. C. P., providing that a defendant may file written pleadings at any time before the cause is called for trial, except in cases of change of venue. This leads us to the conclusion that the request for a separate trial on the plea of present insanity should be made before defendant announces ready for trial or some good and sufficient showing made why it was not done. See Lermo v. State,68 S.W. 684.
Bills of exceptions numbers three to twelve, inclusive, show upon their face to have been approved by the trial court on the 28th day of February, 1938, but were not filed until May 13, 1938, 116 days after notice of appeal was given and 104 days after court adjourned for the term. Bill of exception number two appears to have been presented to the court for approval on May 13th, and was approved by him on the same day and filed with the clerk, which was too late. Hence the same is not entitled to be considered.
Appellant, by his own affidavit and that of his wife, undertakes to relieve himself and his counsel from negligence in securing the approval of his bills of exception and the filing thereof within the ninety days' time alloted to him by the court. These affidavits are based upon hearsay. They show that appellant's attorney, by letter and telephone, requested the court to approve the same and have them filed. The duty devolved upon appellant's attorney to see to it that they were filed in *Page 290 time. If he sought to impose such duty upon the judge or anyone else who failed to do so, then such failure is properly chargeable to him and his attorney. See Carpenter v. State,83 Tex. Crim. 87; Riley v. State, 95 Tex.Crim. R.,255 S.W. 179.
It appears from the affidavit of Mrs. Chapman that she was informed by the court reporter on April 12th that the bills had not been filed, but it does not appear that his attorney made any effort, other than as above stated, to attend to the filing thereof. No excuse is offered for his failure to do so. Under the showing made, they are not subject to be considered. See Roberts v. State, 168 S.W. 98; Riojas v. State, 36 Tex. Crim. 182; Sullivan v. State, 62 Tex.Crim. R.; Diggs v. State,141 S.W. 100.
The statement of facts was not filed in time, but the stenographer made an affidavit that he was sick a part of the time at least and could not complete it within the 90 days after notice of appeal was given. Under the showing thus made, we will consider it as though it was filed in time. See Wilson v. State, 51 S.W.2d 595.
Bill of Exception No. 14 reflects the following occurrence: When the jury returned into court with their verdict finding the defendant guilty as charged in the indictment and assessing his punishment at confinement in the state penitentiary for life, appellant objected to the verdict before it was received by the court and requested him to retire the jury and require them to make a specific finding upon the appellant's state of mind at the present time, which the court declined to do. We think that a failure or refusal of the jury to make a specific finding thereon under the charge of the court is tantamount to a finding that he was sane at the time of trial. Had the jury found that he was insane, they no doubt would have written their verdict in the form given them by the court to that effect. It was only necessary to make a specific finding in case they found him to be insane at the time of the trial and not otherwise. We therefore overrule the appellant's contention.
Appellant complains because the court declined to instruct the jury that if they believed from the evidence that appellant was affected with syphilis and that said disease, together with the recent use of ardent spirits, produced a state of temporary insanity to acquit him. We are of the opinion that appellant was not entitled to such an instruction. Although it may be conceded that he had syphilis, if this alone did not produce temporary insanity, but the voluntary recent use of *Page 291 ardent spirits in addition thereto caused him to become temporarily insane, then the recent use of ardent spirits would be the direct and immediate cause of the claimed insanity, but for which he would not have been temporarily insane.
Consequently it follows that although he may have had syphilis or may have been in a weakened physical condition due to some other cause, yet if the recent use of ardent spirits was the primary cause which produced the temporary insanity, he would be in the same condition, in the eyes of the law, as a healthy, robust man who indulged in the use of ardent spirits and as a result became temporarily insane. It may be true that a person affected with syphilis is more susceptible to intoxication. This, however, would not constitute any defense, but under the law might be considered by the jury in mitigation of the punishment to be assessed. We think this case is distinguishable from the case of Phillips v. State, 98 S.W. 868 by the facts.
Appellant also objected to the court's instruction with reference to insanity at the time of the commission of the offense and the instruction with reference to insanity at the time of trial on the ground that one was in conflict with the other, in this: That the court in his instruction upon the issue of appellant's insanity at the time of the commission of the alleged offense charged, among other things, as follows: "The question of the insanity of the defendant has exclusive reference to the act with which he is charged, at the time of the commission of the same. If he was sane at the time of the commission of the crime, he is amenable to the law."
This must be read and construed in connection with the preceding instruction on the subject.
In the succeeding paragraph the court instructed the jury with reference to the law on present insanity (at the time of the trial) as follows: "You are further charged that under the laws of this State, no person shall be convicted of a criminal offense while in a state of insanity, and if, upon the trial of this cause, the Defendant should be found to be now insane, the law provides that he shall not be convicted at this time of the offense charged in the indictment."
We fail to see any contradiction in the instruction such as would tend to mislead the jury to the detriment of the appellant. It seems clear from the language employed that Paragraph 12 of the court's charge related to appellant's insanity at the time of the commission of the offense, and Paragraph 13 had reference to his state of mind at the time of trial, with a *Page 292 definite instruction of what their verdict should be in case they found him to be insane at the time of his trial. It does not seem reasonable that a jury composed of men of average intelligence would fail to understand the plain and specific instruction that they could not convict him of the offense charged in the indictment if they found him to be insane at the time of trial.
We see no error in the court's action in declining to submit to the jury appellant's requested instructions for the reasons stated by us in our discussion of appellant's objection to the court's main charge, and we see no need in reiterating the same.
All other matters complained of have been carefully considered by us and are deemed to be without merit.
The judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.