Appellant was indicted in the District Court of Grayson County, on March 18, 1893, charged with the murder of his wife, May Hunt. He was tried April 15, 1893, found guilty of murder of the first degree, and his punishment assessed at death. His motion for a new trial was overruled, and he appeals to this court. *Page 259
A witness (Walker) testified, that a document handed to him was an application for an attachment in this cause, made by defendant Hunt; that the defendant signed the same; that defendant was under arrest and in the custody of an officer at the time he signed the same; that the signature to said application and the signature "E.W. Hunt" to two letters shown him were made by the same person; and that the signature to the application and the writing of the two letters are the same. Another witness testified, that the two letters shown him addressed to Miss Frye and signed "E.W. Hunt," and the signature "E.W. Hunt" made to the application for attachment, were all written by the same person. To this testimony the defense objected, on the ground that the signing of the application was an act required by law in order to secure his rights in the trial of said cause, and was an act done while defendant was under arrest and unwarned. The objection was overruled and the testimony admitted. The State then offered in evidence the two letters referred to, and the defense objected on the ground that the execution of said letters by defendant had not been proved by legal and sufficient evidence. This objection was overruled, and the letters admitted. All of this is presented by bills of exception. In reference to this matter counsel for appellant contends, that under the rule which excludes the admission and confessions of a defendant made while in custody and unwarned the State could not prove the signature to the application executed by him under like conditions. To this proposition we do not assent. The act of signing the document was neither an admission nor a confession by defendant. It was not an act tending to show guilt. It does not come within the letter or the reason of the rule. The fact that defendant was in custody when he signed the application would not likely affect the signature in any manner so as to render it unfit for use as a standard of comparison. That he did sign it was no evidence against him. There was no error in this matter.
2. A confession of the defendant made to the witness Rich was in evidence, to the effect: "I killed her with that axe. I had to do it. She was coming at me with a dagger, and I had to kill, her to save my life. I am going to plead guilty, and may by so doing save my life." The court submitted to the jury the issue of self-defense, and no objection is urged to the charge upon that issue, except in that it did not inform the jury that defendant was under no obligation to retreat before killing to save his own life. No objection was made to the charge upon this subject at the time it was given, and no instruction was asked by appellant upon the subject of retreat. The objection was urged for the first time in the motion for a new trial. Under such circumstances, counsel admit that the matter presents no reversible error unless appellant has sustained injury. The question, then, is, has appellant been injured by the failure to so charge the jury? We are of the opinion *Page 260 that under the circumstances of this case no possible injury could result to the defendant. His statement is clear, plain, and emphatic: "She was coming at me with a dagger, and. I had to kill her to save my life." To the reasonable mind this presents but one inquiry: Did defendant speak the truth in saying that she was coming at him with a dagger? No ordinary juror or person would pause to inquire as to the possibility, the practicability, or the obligation to retreat to avoid slaying. If the jury believed this statement of defendant he was entitled to an acquittal, and the jury were in effect so informed in the charge given.
3. The question of defendant's sanity was raised by evidence in the case. The jailer having charge of defendant after his arrest testified that he had two spells in which he was wild. "Looked like he did not know what he was doing. Tore up his blankets, and stuck the pieces out through the bars of his cell." At first he thought he was crazy, but when he had the second attack the witness thought the insanity feigned. It was a hard matter for witness to say whether or not defendant knew right from wrong. Quarles, a prisoner in the jail, thought the defendant crazy. When he had his spells, would know nothing. Appellant's mother testified, that when he was about ten years of age a horse ran away with him and he was injured in the head, and since said injury defendant had never been right in his mind; a marked change existed ever since the injury. She testified to many irrational acts; he struck his sister once without cause or provocation; he would talk of driving herds of thousands of cattle to Mexico; talk of building railroads to Mexico when he had no means; his eyes would dance and fill with water. He and his family lived on a farm in Wilson County in 1892. His wife went on a visit to her people in Bosque County, and in October, without notice to any one, he left, leaving his cotton in the field, his corn in the pen, his house locked up, and went to Walnut Springs. No one in Wilson County knew or heard anything about him after he left until the murder and his arrest. Did not think that defendant knew the nature and quality of his acts. Did not think he would know right from wrong. Lusk, a witness from Wilson County, had known him four years. He testified to delusions of defendant and spells of delirium. Thought him insane. At times he would not know right from wrong. Williams, a witness from Wilson County, had known him for several years. Did not think he had been right since he had known him. Testified to wild and irrational talk. Kroeger, a witness from Wilson County, had known him for eighteen years. Knew him when he was hurt; noticed a change in his conduct before and after he was hurt. Testified to many irrational acts. Thought he would know right from wrong; it was hard to say. Dr. Wilson testified, that he had been seven years in charge of lunatic asylums; that the universal tendency with young people affected with insanity, if not cured, is to grow worse as they grow older, and especially is this the *Page 261 case where insanity is induced by blows upon the head which have affected the brain. Persons who have been insane for ten or fifteen years are seldom, if ever, cured. There are times in the career of those most rabidly insane, and whose minds are completely destroyed, when no external manifestations of insanity can be observed, even by experts. The mind may be completely disordered, but the external and observable evidence of it may be wanting. There was put in evidence a judgment of the County Court of Wilson County, from which it appears that defendant was tried in that court upon a charge of unsound mind on the 10th day of June, 1886. Upon the issue submitted, the jury in the case returned the following verdict: "(1) Is Elijah Hunt of unsound mind? Answer — He is. (2) If defendant is of unsound mind, is it necessary that he should be placed under restraint? Answer — Yes; it is. (3) If you answer both the foregoing questions in the affirmative, then state what is the age and nativity of defendant. Answer — 19 years; native of Texas. (4) How many attacks of insanity has he had, and how long has the present attack existed? Answer — He has been insane for fifteen years. Has been growing worse for the last seven years." Upon this verdict the court adjudged Hunt to be of unsound mind, and ordered his restraint until such time as he could be received in the asylum at Austin.
Upon the character of mental disorder which will exempt from punishment, the learned trial judge gave a very admirable charge, and the charge relating to the issue of insanity is objected to solely upon the subjects of reasonable doubt, presumption, and the burden of proof. That part of the charge complained of is as follows: "The law presumes every person to be sane until the contrary is established. The judgment of the County Court of Wilson County, read in evidence before you, conclusively establishes that the defendant was of unsound mind on the 10th day of June, 1886, and it was at that time necessary that he (defendant) should be placed under restraint; but it is not conclusive as to his subsequent condition of mind. The condition of defendant's mind at the time the killing occurred (if you believed he killed deceased) is the matter to be determined under the plea of insanity, and is to be determined from all the evidence bearing upon that question. If you believe from the evidence that defendant was not restored to reason, and that subsequent to he date of said judgment the defendant was afflicted with chronic or habitual insanity to that degree that he would not know what he was doing in the commission of such a crime as that charged in the indictment, or if he did know what he was doing, then that he did not have sufficient reason to comprehend its character and consequences and to know that it was wrong to do the act, then it devolves upon the State to prove beyond a reasonable doubt that the killing of May Hunt by defendant (if you believe that he killed her) occurred at a time when defendant was in a *Page 262 condition of mind called 'a lucid interval' — that is, that at the time defendant killed deceased (if he did kill her) his mind was in a condition that he knew what he was doing, and that he knew that the act was wrong, and that he had sufficient will power to control his action; and if the evidence satisfies you that defendant has, since the date of said judgment, been afflicted with chronic or habitual insanity of the character and degree above defined, and if the evidence does not satisfy you beyond a reasonable doubt that at the time of the killing of May Hunt (if you believe that defendant killed her) he was in a condition of mind to know what he was doing, and that the act was wrong, and that he had sufficient will power to enable him to refrain from such act, you will find him not guilty." "If, however, you do not believe from the evidence that defendant had been afflicted with that character and degree of insanity defined and described in the preceding charge, and if you should believe from the evidence that defendant has, since the date of the judgment read before you, been afflicted with recurrent insanity — that is, that he was at times sane and at other times insane — then it devolves upon defendant to prove by a preponderance of the evidence, to your satisfaction, that at the time he killed the deceased (if he killed her) he was laboring under such defect of reason from disease of the mind that he did not know what he was doing, or if he did know, that he did not know the difference between right and wrong of the particular act, and that he did not comprehend the character and quality of such act; and if it has not been so proved, the defense of insanity can not avail the defendant if you believe he is otherwise guilty as charged."
The defendant requested the following charge, which was refused: "The defendant having introduced a judgment of the County Court of Wilson County establishing the insanity of the defendant, you are instructed that said judgment conclusively establishes the insanity of defendant at the time the judgment was rendered; and unless the evidence introduced on this trial establishes to your satisfaction, beyond a reasonable doubt, that the insanity of which defendant was convicted was temporary in its character, or that defendant has been cured of his insanity, you are instructed that defendant is presumed to have continued to be insane from the time of said judgment until the present time, and that it devolves upon the State to establish by evidence to your satisfaction, beyond a reasonable doubt, that defendant was in possession or his mental faculties sufficiently to understand the motive of his act, and sufficiently to be able to refrain from doing the same, at the time May Hunt was killed (if from the evidence and instructions herein given you find defendant defendant killed her), before you can convict him of any offense." The refusal of this charge is complained of as error, and presents the serious question in this case. The charge of the court upon the subject of insanity very clearly presents four *Page 263 propositions: (1) That the law presumes sanity, and the burden is on accused to prove insanity at the time he committed the homicide. (2) Chronic insanity having been shown, the burden of proof is on the State to prove, beyond a reasonable doubt, sanity at the time of the homicide. (3) Unless chronic insanity is shown to have existed previous to the homicide, then the burden is on the accused to prove insanity at the time he killed his wife. (4) The judgment of the court establishing insanity having been put in evidence, the burden is upon the State to prove, beyond a reasonable doubt, that the insanity of which defendant was convicted was temporary, or prove that he had been cured of such insanity; otherwise, insanity is presumed to have continued.
Under the weight of authority and the decisions of this court, the charge was correct under the evidence. The writer has not assented to these decisions, and is of opinion that when the evidence in a case raises the issue of insanity there is no presumption of law; that the presumption is, under all the circumstances, one of fact for the jury to determine, and that unless the jury believe, beyond a reasonable doubt, that the accused is sane, they should acquit. If the insanity, at the time of the judgment declaring defendant insane, was permanent — chronic — it would likely remain. If of a temporary character, appellant may or may not have been sane when he killed his wife. The judgment does not inform us of the character of insanity of which defendant was afflicted, and if it had found that defendant was afflicted with chronic insanity it would not have been conclusive of that fact. Now, in determining the character of the insanity, the conduct of defendant before the judgment, after the judgment, and up to and after the homicide, should be looked to, and if found sane at the time of the homicide, the insanity established by the judgment years before was not permanent. If insane at that time it may have been of that character, or it may have been temporary, and defendant may have killed his wife while temporarily insane. These observations show that the theory to be determined is a question of fact merely — the condition of defendant's mind when he slew his wife. Now, if defendant was not permanently insane when he was so declared to be by the judgment, it would not be just to the State to charge the presumption that insanity is presumed to continue. In short, the presumption has no place in the case — can not be used for any purpose until the whole of the evidence has been introduced; and when this is done, the character of insanity may appear. It is true, that along with all the evidence bearing upon the question of sanity the judgment should be considered, and the main fact be determined by all the evidence in the case.
Counsel for appellant contend that the verdict is against the evidence, that insanity was shown, and that the jury should have acquitted defendant upon that ground. We concede that there is very cogent *Page 264 evidence of insanity; but on the other hand the proof of sanity is clearly made. The letters written by defendant regarding his wife's sickness and death, several days before he killed her, evidence not only sanity but that he was premeditating her death, and was preparing her mother and sister for that event.
We can not disturb the verdict of the jury, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.