
    BARTON v. STATE.
    (No. 6004.)
    (Court of Criminal Appeals of Texas.
    April 27, 1921.
    Rehearing Denied May 25, 1921.)
    1. Criminal law &wkey;>704 — Defendant not entitled to read affidavit as to insanity.
    While Code Cr. Proc. 1911, art. 717, subd. 5, declares that a defendant, preliminary to introducing evidence, may state the defenses as relied on, a defendant who relied on insanity at the time of the commission of the offense cannot, under guise of stating the defense relied on, read an affidavit setting forth his insanity.
    2. Criminal law &wkey;*570(3) — Previous adjudication of insanity held not to establish defendant’s insanity at time of trial.
    While Pen. Code 1911, art. 39, declares that no act done in a state of insanity can be punished, and that no person who becomes insane after he has committed an offense shall be tried, etc., the fact that defendant, who had once previously been adjudged insane, was found to be insane but two years before the commission of the offense charged, will not establish his insanity at the time of the offense; it appearing that after a short stay in the insane asylum he was paroled on condition that he should within 30 days report in person or by letter, and it further appearing that during the interim defendant had been at liberty, etc., free from all restraint.
    3. Insane persons <&wkey;>26 — Inquisition under invalid statute is without effect.
    Where defendant was adjudged a lunatic by a commission purporting to act under Acts 33d Deg. (1913) c. 163 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 150-156, 159-165), the adjudication is without force as a judgment, where the statute was subsequently declared unconstitutional.
    4. Criminal law <&wkey;720(6)— Comment by prosecutor that adjudication of insanity was void not error.
    Where defendant was adjudged insane by a commission purporting to act under Acts 33d Leg. (1913) c. 163 (Vernon’s Saylek’ Ann. Civ. St. 1914, arts. 150-156, 159-165), which aet was subsequently declared unconstitutional, a remark by the prosecutor that the judgment was void, etc., was not error, for it was but a comment on facts which were before the jury; the judgment of insanity, etc., having been introduced.
    5. Criminal law <&wkey;730(8) — Remark by prosecutor that adjudication of defendant’s insanity was void susceptible of correction by instruction.
    Where defendant introduced an adjudication of insanity, but such judgment was void, the law under which it was passed having been declared unconstitutional, comments by the prosecutor on the invalidity of the judgment, if deemed improper, were not so obviously harmful that the' error might not be counteracted by an instruction to disregard the same.
    6. Criminal law <&wkey;728(5) — Erroneous argument not ground for complaint; no instruction having been requested.
    Where erroneous argument by the prosecutor could be counteracted by instruction, it cannot be complained of; no such instruction having been requested.
    On Motion for Rehearing.
    7. Criminal law ¡&wkey;448(IO) — Testimony by nonexpert witness that he observed nothing indicating defendant’s insanity admissible.
    Where defendant relied on insanity, testimony by a nonexpert witness that he talked to defendant and did not notice anything peculiar about his mental condition, the witness further testifying that he had had occasion to observe insane persons, was properly admitted, the witness not purporting to give his opinion, but merely stating the facts of his observation.
    8. Criminal law &wkey;>493 — That witness who testified he observed nothing unusual as to defendant’s mental condition had little opportunity for observation goes to weight of testimony only.
    Where a nonexpert witness testified that in conversation with defendant he observed nothing unusual as to his mental condition, the fact that the witness may have had slight opportunity for observation goes only to the weight of his testimony.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    John E. Barton was convicted of robbery, and he appeals.
    Affirmed.
    Alexander & Baldwin, of Fort Worth, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for robbery; punishment fixed at confinement in the penitentiary for 10 years.

The evidence is sufficient to show that the appellant committed the act of robbery.

Preliminary to proceeding with the trial the appellant sought to read to the Jury an affidavit made by the mother of appellant, stating that he was insane, and had been twice adjudged a lunatic and placed in the asylum. This was not for the purpose of having the question of present insanity tried. The law makes provision to protect insane persons against punishment for crime during the continuance of the malady. Revised Statutes 1911, title 10, c. 1; Chase v. State, 41 Tex. Cr. R. 560, 55 S. W. 833; Guagando v. State, 41 Tex. 630; Wilson v. State, 58 Tex. Cr. R. 596, 127 S. W. 548. It was appellant’s idea that the affidavit might be read because of subdivision 5 of article 717, Code of Crim. Procedure, in which the order of trial is prescribed, and in which it is said:

“That the appellant, preliminary to introducing his evidence, may state the defenses relied upon and the facts which he expects to prove.”

Appellant had a right by virtue of this statute to make such a statement, but this right was not transgressed by' the denial by the court of the privilege of reading the affidavit mentioned.

Appellant’s mother testified that he had been twice convicted of insanity in San Antonio, once 6 years and once about 2 years prior to the date of the offense. In support of the latter conviction, appellant introduced a record of the proceeding before the county judge of Bexar county, wherein in June, 1917, appellant was declared a lunatic, and his confinement in an asylum ordered. It was also shown that in August of the same year he was granted a release upon a furlough, containing a proviso that in 30 days he should report in person or by letter. In connection with the furlough, his mother signed an obligation to pay any expenses incurred in the event his return became necessary.

There was other evidence, pro and con, both expert and nonexpert, on the issue of insanity at the time of the commission of the offense and at the time of the trial.

Appellant advances the proposition that the judgment mentioned conclusively established the insanity of the appellant, and that in the absence of an order vacating it the issue of insanity was determined against the state by the introduction of the judgment. In support of this view the appellant refers to article 39 of the Penal Code. The statute is in the following terms:

“No act done in a state of insanity can be punished as an offense. No person who becomes insane after he committed an offense shall be tried for the same while in such condition. No person who becomes insane after he is found guilty shall be punished for the offense while in such condition.”

The case of Hazelwood v. State, 79 Tex. Cr. App. 483, 186 S. W. 201, is also relied upon. Hazelwood, some time before the commission of the offense, had been adjudged a lunatic, and had been discharged, and later was again tried and adjudged insane. Friends procured his delivery into their keeping by executing a bond, which is described in article 162 of the Revised Statutes of 1911. By this bond the obligation was made by those into whose custody Hazelwood was placed that they would restrain and care for him. One reason for making the bond was that at the time there was not room in the asylum for his confinement. A few days after the bond was executed he committed the offense, and was again placed in the asylum, from which, after his indictment, he was brought into .the court and tried and convicted. The court reversed his case saying:

“This defendant was brought out of the asylum and tried for a criminal offense. No man in Texas can be tried while he is insane. This precluded the trial of appellant under the circumstances of this record.”

This decision but gave effect to the statute (article 39 of the Penal Code). In the course of the decision reference is made to the fact that the judgment finding Hazelwood insane had not been set aside. The court was establishing no new rule, but applying the one long in existence, to the facts of the particular case in hand. The facts in the instant ca'se are different. The appellant had been adjudged insane and released by. the officers of the asylum. His release was not upon bond and security that he would be kept in custody, as in Hazelwood’s Case, but upon a mere parole, conditioned that he should report in person or by mail within 30 days. The offense -in the instant case took place nearly 2% years after his release. During the time intervening he had been without restraint. He had gone at large in various parts of the state. There is nothing upon which the inference could be based that his liberty was not with the full sanction of the asylum authorities, or that any reason existed in their minds for recalling the parole and ¿gain bringing him into custody. His status, from a legal point of view, was not like that of Hazelwood, but rather like that of Witty. See Witty v. State, 69 Tex. Or. R. 125, 153 S. W. 1146. Witty, after the offense, had been adjudged a lunatic, and confined in the lunatic asylum. At the time of his trial he was at large; the record being silent in regard to how he regained his liberty. The point -was made that the judgment of lunacy was conclusive against the state. The contrary was held by the court, the court saying:

“We * * * hold * * * that the ju(3g. ment of the county court adjudging appellant insane is not a bar to the prosecution for the murder as contended by appellant, but is presumptive evidence of insanity, and makes a prima facie case, to be overcome by the state under the rules laid down.”

The same rule is stated and applied in Hunt v. State, 33 Tex. Cr. R. 263, 26 S. W. 206.

The lunacy judgment relied upon by the appellant bears upon Its face evidence that the decision that he was a lunatic was not made by a jury but was made by a commission which purported to act under chapter 163, Acts of the Thirty-Third Legislature (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 150-156, 159-165). This law so passed, permitting a commission, instead of a jury, to determine the question of lunacy, was held void by the Supreme Court in this state in the case of White v. White, 108 Tex. 570, 196 S. W. 510. The judgment of lunacy upon which the appellant relies, being void because the law under which it was rendered was contrary to the Constitution of the state, was without force as a judgment. Cyc. of Law and Procedure, vol. 8, p. 805. It did not authorize the detention of the appellant, and was such a proceeding that its efficiency to even prima facie establish his lunacy is questionable. The nature of the proceeding appeared upon the face of the judgment, which was introduced by the appellant for the purpose of establishing his defense of lunacy. In commenting upon it, the prosecution referred to the fact that the judgment was void, and that the statute under which it was rendered had been so declared by the Supreme Court. We think the complaint of this argument shows no ground for reversal. It was apparently but a comment upon the facts which were before the jury. The appellant is charged with knowledge of the fact that the law under which he claimed to have been adjudged a lunatic had been held void, and in our judgment the comment mentioned was not improper; but if this were doubtful, it was not such an obviously harmful argument that it might not have been counteracted by an instruction to the jury to disregard it. No request for such instruction was made. Cockrell v. State, 85 Tex. Cr. R. 326, 211 S. W. 943.

Failing to perceive error in the trial, we order the judgment affirmed.

On Motion for Rehearing.

HAWKINS, J.

On the trial of this case the witness Cantrell, over objection, was permitted to testify as follows:

“I have had occasion to talk to the defendant in this case. I talked to him about the time of his arrest, and afterwards, too. During my conversation and observation of defendant I did not notice anything peculiar or unusual about his mental condition. I have been an officer in this county about 15 years, off and on. During that time I have had occasion to see, observe, and talk to insane persons.”

In the motion for rehearing appellant insists that we were in error in not holding the admission of this testimony erroneous, and cites numbers of cases in support of his contention. All the cases cited by him disclose that the witnesses were permitted to state their opinion as to the sanity of accused without stating any facts upon which they based it, or showing their acquaintance with, the accused to be so slight that their opinions were held to be inadmissible. In the instant case Cantrell did not undertake to express his opinion as to the sanity or insanity of the appellant, but simply reported to the jury, in effect, that what opportunity he had to observe and talk to him disclosed nothing of an abnormal character in his mental condition. The exact question was passed upon adversely to appellant’s contention in the case of Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052. The fact that Cantrell may not have conversed with appellant on many occasions, and perhaps did not have a very intimate acquaintance with him, would not render his testimony inadmissible, but would only go to the weight of- the testimony to be considered by the jury. We refrain from a further discussion.of the questions disposed of in the original opinion, believing the proper conclusions were arrived at, as stated therein.

The motion for rehearing is overruled. 
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