Appellant again complains because of the fact that the trial court refused to entertain appellant's request for a separate trial as to his present insanity, and quotes the cases cited by us in our original opinion, which he contends uphold his contention. Among these cases we note the case of Lermo v. State, 68 S.W. Rep. 684. Probably, however, the leading case in such matters is that of Guagando v. State, 41 Tex. 630, and both of these cases are rather similar in their facts to the instant one. In the Guagando case it appears that an affidavit of insanity was filed after an announcement of ready in the trial, a jury having been selected, and the defendant had pleaded not guilty. The same facts appear herein. But in the Guagando case, after a conviction, therein, the court held another trial relative to the defendant's sanity, and submitted to the jury therein four questions: 1st, as to whether defendant was sane at that instant; 2nd, was he sane on yesterday, the day of his trial; 3rd, was he sane on the night of the killing, and, 4th, had he ever been insane. The appellate court held in such case that such a procedure was in violation of Guagando's rights; that such a procedure was proper only relative to insanity after conviction, under another and different statute than the one invoked at the beginning of such trial. That such later trial on the sanity question did not fulfill the law relative to the trial of present insanity, and the cause was reversed. It *Page 293 seems to us, however, that such reversal was based mainly upon the ruling of the trial judge which eliminated all references to insanity during the trial of the main issue of murder. We quote from the reporter's notes in 41 Tex. 627:
"It was further stated by the court, in refusing the application, that the question of insanity would be tried in case the defendant was convicted before a judgment would be rendered on the verdict."
In the case of Lermo v. State, 68 S.W. Rep. 684, the facts are practically the same as this instant case, and Judge Davidson said in that case (page 685): "It would be safe practice, where the question of present insanity is properly suggested, before the trial begins, for the court to try the issue before going into the trial under the plea of not guilty. But where the question of present insanity is suggested after the plea of not guilty, and the impanelment of the jury, we see no reason why, under the authorities, the issue could not be tried along with the general plea. In either event, where the question to present sanity is an issue, defendant's attitude or mental condition should be regarded, and opportunity afforded for securing the introduction of testimony; and the court should be satified that the mental condition of the accused is such that he could comprehend and understand the process of his trial under the plea of not guilty, before a conviction will be permitted. We are therefore of opinion that the court did not err in requiring appellant to proceed, under the facts as stated in the bill."
We are also aware of the holding in the case of Ramirez v. State, 241 S.W. Rep. 1020, and of its discussion of the two cases of Guagando and. Lermo, supra. In the Ramirez case, however, we do not find such a close similarity of facts. It does not appear therein that an announcement of ready had been made, nor that a jury had been selected, nor that the defendant had pleaded not guilty to the accusation, at the time of the filing of the affidavit of insanity. We do not criticise the ruling in such case; we do doubt its application here. We feel sure that had the affidavit of insanity herein been presented to the trial court at the proper time, the court would have granted him a trial thereon. We think after all preliminaries had been disposed of and appellant had pleaded before a jury, that such request for a separate insanity trial came too late. It is here worthy of note that the testimony of appellant's insanity was allowed to go untrammelled before the jury, and the trial judge gave an exhaustive charge upon every phase presented by such evidence. He instructed the jury relative to insanity *Page 294 at the time of the commission of the alleged offense, and told them what verdict they should return should they find him to have been insane at such time. He also instructed the jury as to present insanity, and told them what verdict they should return in the event of such finding. In other words, he followed the recent enactment of the 45th Legislature, Regular Session, H. B. 993, Harlow's Regular Session Laws 1937, p. 575, in presenting to the jury the question of a defendant's insanity at the time of, or after the commission of the offense, as well as the trial thereof, and it occurs to us that such a procedure, having been provided for by the legislature, is strongly indicative of the correctness of our original opinion herein relative to this matter.
We have decided, under the peculiar circumstances of this case, that appellant's attorneys exercised all the diligence that could reasonably be required of them in order to have their bills of exception filed in time, and it was through no fault of theirs that same were filed too late, and we will, therefore, proceed to consider the bills brought forward in a suplemental transcript.
Bill of exceptions No. 2 complains because while the witness G. L. Warren was on the stand, and after he had been allowed to testify that at the scene of the homicide he had stated that he thought the appellant was insane, and after he had testified on the stand that he then thought the appellant was insane, the appellant's attorney asked him why he thought the appellant was insane, — to which the State objected because the same would be a conclusion of the witness, and that such facts were immaterial. We notice, however, that in his testimony given as to what happened at the scene of the homicide, and as to what appellant said and did thereat, the witness testified fully, and since the bill shows that the witness gave his opinion as to the sanity of the appellant, we are not impressed with the seriousness of this alleged error. Appellant obtained the testimony; he was only temporarily deprived of the process of reasoning by which the witness arrived at the conclusion evidenced by the testimony.
Bill of exceptions No. 3 is concerned with the testimony of Ina Aston wherein she stated, while on the stand, that the deceased had two little boys, and they were in the court room at that time. We do not think the matter of sufficient importance other than to say that we see no error reflected therein.
Bill of exceptions No. 4 does not reflect any error in the light of the trial judge's explanation thereof.
Bills of exception Nos. 5, 6, 7, 8 and 9 all relate to the same *Page 295 alleged error, and can be disposed of together. The appellant's defense was that of insanity, caused by the onset of syphilis, and that his mind was so deranged at the time of the homicide that he did not know the difference between right and wrong. The State's theory was that appellant was drunk from the use of ardent spirits, and that his usual habit and custom when drunk was to pull his pistol and attempt to kill some one against whom he had a real or fancied grudge. In each of these bills the testimony, so it seems to us, was offered and used in rebuttal of the affirmative testimony relative to insanity in showing that it was practically the habit of appellant, when in a drunken condition, to do or attempt to do the same thing that he did at the killing of Lee Hutson, and therefore such testimony was persuasive in showing that appellant was not insane but only drunk, and doing the same thing that he usually did when he was drunk. We think that under this theory the testimony of such witnesses was admissible.
Bill No. 10 complains of the trial court relaxing the rule as to witnesses being excluded from the court room during the trial in that he allowed the witness Neal Arthur, an investigator for the public safety department, having a commission as an officer, — to remain in the court room during the trial of the case. The court stated that he used such officer during the trial, and we can see no reason for finding that the trial court abused his discretion in the matter complained of. Often it is impossible for this court to know the exact circumstances surrounding the trial of cases in the lower courts, and such matters as govern such procedures are usually left to the sound discretion of trial judges. We do not think any error is shown in such bill.
Bill of exceptions No. 11 relates to the mere asking of the same question as is complained of in bill of exceptions No. 3. It is sufficient to say that our ruling thereon is the same as that relative to bill No. 3.
Bill of exceptions No. 12 relates to a matter similar to that complained of in bills Nos. 5, 6, 7 and 8, and is governed by the same ruling.
Bill of exception No. 13 relates to the district attorney asking the witness Barto Hammonds relative to the appellant having been discharged as a policeman at Mt. Pleasant, Texas, for drunkenness in the year 1926. We gather from said bill that the court did not permit the witness to answer the question. Under the facts as shown in said bill we are not prepared to say that the asking of such question was error of a serious nature. *Page 296
We have endeavored to notice all of the questions raised by appellant in the bills not heretofore noticed, and we find no reason for receding from the conclusion heretofore reached in our original opinion on the questions there treated.
The motion for rehearing will be overruled.
ON REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.