
    ROGERS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    Rehearing Denied June 18, 1913.)
    1. CRIMINAL Law (§ 614) — Discretion of Trial Court — Denial of Continuance.
    Under the statutes (White’s Code, Cr. Proc. § 647) a second application for a continuance is in the sound discretion of the court, and after trial is to be considered in the light of the trial, and it must not only appear that the evidence sought was material and probably true, but that a different result would probably be produced. An exception to the overruling of a second application for a continuance as qualified by the trial judge showed that one of the witnesses sought had been present at two former trials of the case, but had not testified; that the affliction of another witness must have been known to defendant and his counsel; that the testimony would be merely cumulative, non-expert testimony as to the defendant’s sanity. Sold, that the refusal of a continuance was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dee. Dig. § 614.]
    2. Criminal Law (§ 516) — Evidence—Concession— Statement Before Grand Jury— “Written Confession.”
    Testimony before the grand jury by defendant before he was under arrest, and when he had no information that he would be arrested, which was reduced to writing and sworn to, was not a written confession by defendant under arrest within the statute relating thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1139-1145; Dec. Dig. § 516.]
    3. Criminal Law (§, 452) — Nonexpert Testimony-Sanity of Accused.
    Nonexpert witnesses shown to have had knowledge and observation of defendant for considerable time and to have known of his dealings were properly permitted to testify that they saw nothing out of the ordinary with him, and that he acted rationally; such testimony being only a shorthand rendition of the facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent.Dig. §§ 1053-1055; Dec.Dig. § 452.]
    4. Criminal Law (§ 957) — New Trial — PROCEEDINGS FOR NEW TRIAL — AFFIDAVIT OF Juror.
    A juror cannot impeach his verdict by affidavit to the effect that he would not have agreed to the verdict of guilty, unless the other jurors had agreed to sign a recommendation for defendant’s pardon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.]
    5. Criminal Law (§ 957) — New Trial — Misconduct of Jury.
    An affidavit of a juror that he would not have agreed to a verdict of guilty unless the other jurors had agreed to sign a recommendation for defendant’s pardon was insufficient to authorize or require a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.]
    6. Criminal Law (§ 822) — Trial—Taking Instructions as a Whole.
    The charge of the court must be taken as a whole.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. §, 822.]
    7. Criminal Law (§ 822) — Instructions— Insanity.
    In a prosecution for arson, defended on the ground of insanity, the charge of the court defined arson, defined a building, and the meaning of the term “willful,” charged that, if defendant willfully burned the gin, he would be guilty as charged; that no acts done by an insane person were punishable as a crime, and on the presumption of innocence and burden of proof. Held that, taken as a whole, the charge was not objectionable as authorizing a conviction, though the defendant was insane, and did not know that he was doing an unlawful act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    8. Criminal Law (§ 1038) — Appeal — Instructions — Bequest for Additional Charges — Necessity.
    Defendant complaining of the charges given should have requested _ additional charges; and, not having done so, his criticism presented no reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    John Bogers was convicted of arson, and he appeals.
    Affirmed.
    T. B. Hears, of Gatesville, and Williams & Williams, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PBENDEBGAST, J.

Appellant was convicted of arson, and his penalty fixed at the lowest prescribed by law, five years in the penitentiary.

For a few years before August 27, 1911, F. B. Lam and W. L. Bogers were equal partners in two gins. They both lived, and said gins were situated, in the town of Ogles-by, Coryell county, Tex. The gins were 150 yards apart. It seems that Lam ran one of the gins and Bogers the other. The mother of Lam was the sister of Bogers. Lam’s father was a brother of the wife of W. L. Bogers. Appellant was 19 years of age in January, 1911. His home was then and all his life had been at his father’s. His parents moved to Oglesby from a few miles in the country near thereto some four years before August, 1911, and had lived in Oglesby four years or more continuously before said last date. Some three weeks before August 27, 1911, Lam and Bogers had fallen out about their said partnership business. The state of feeling between them was very bitter each towards the other. It all grew out of and was connected with their gin business. On Sunday night August 27, 1911, the said gin-house which was run by said Lam was burned about 11 o’clock at night. It was worth from $6,000 to $8,000. The grand jury of Coryell county did not convene after said burning until January, 1912. On January 12, 1912, the grand jury began an investigation of said burning, and had a large number of witnesses summoned to appear at that time, and they did appear at that time for that purpose.

Appellant was the second witness, it seems, the grand jury had before it on that subject. He was duly sworn, and testified as any other witness. He at first denied knowing anything about who burned the gin, or having anything to do with burning it, and denied being in the town of Oglesby at a certain well therein, and seeing certain persons thereabouts, and denied several other facts, afterwards sworn to in his written statement. The county attorney or some of the grand jurors then told him they in effect knew he was testifying falsely, but, if he would testify truthfully, they would forgive him, and not prosecute him for false swearing. Thereupon he admitted he had not been telling the truth, but would then do so. Then testified fully. His testimony was reduced to writing, and he signed and swore to it, in addition to having been sworn and testified orally. His written sworn statement is as follows: “I burned the gin myself on Sunday night after church and before midnight. I burned it by pouring a gallon can of coal oil on the floor and under the second gin stand from the east end of the ginhouse and by throwing a lighted match on said oil. After the oil began to burn, I threw the can out at the window under the suction shed, and ran out through the south door straight to my horse and buggy in front of the M. E. church in Oglesby, where I got in the buggy and drove straight to Yirge Lawrence’s place as fast as the horse could trot. After putting up my horse and buggy, I went to the house and woke up Virge Lawrence, and told him the gin was on fire. (We could see the fire from his house, which was about three miles westward direction from Ogles-by.) Yirge and his wife, my sister, got up and dressed and went to the fire. After they left, I hitched up again and went to the fire also. The ginhouse had fallen in when I got there. I got the can full of oil at Virge Lawrence’s on the Saturday before the burning and took it to Oglesby, and hid it Saturday evening between the old livery stable and the little house just east. After church Sunday night following I changed my Sunday clothes at my buggy for a blue jumper and duck pants, and went down in front of the Stock-berger store and to the public well of Ogles-by, where I saw Leonard Stockberger, Ed Mooney, Cecil and Wood Graham, and Bob Stockberger. All that was there said between us was that Leonard asked me what I was doing there, and I replied that I was waiting for ‘Fatty Reid,’ meaning Sam Reid. As soon as all of these boys had gotten some distance away, I got the above-mentioned can from the place where I hid it, went straight to the gin that was burned, and set the fire that burned the gin as stated above. I decided on the Friday before that I would burn the gin on Sunday night. After I hid the can as above stated on Saturday evening, X went through the gin to choose a place to set it on fire. After church the Sunday night of the fire and before I changed my clothes I told George Isbell, Jr., Reynold Bannister, and Floyd Campbell after they promised they would not tell that I was going to burn the gin. One of them told me it would be a dangerous thing to do. On the Sunday after the gin was burned X told the same boys that I had burned the gin. They were all together at the time. I burned the gin because I was mad at Frank Lam, the manager, because he would not pay me what I claimed he owed me for work I had done. This was the only reason. Nobody told me to burn the gin and I had talked with nobody about it except the three above named boys, nor have I since told anybody that I did it except the same three boys. I alone am to blame for the burning of the gin. I make 'all the above statements freely and voluntarily because the same is true, and with no promise on the part of any officer or any man except that of the district attorney that if I would tell the whole truth and nothing but the truth that he would recommend leniency. I understand this can be used in evidence against me. Johnnie Rogers.” This sworn testimony was introduced on the trial of this cause. In addition to and independent of it, the state proved substantially and fully the same things by numerous witnesses. Some three or four witnesses testified that shortly before appellant burned this gin he told them that he was going to do so, and fixed said Sunday night as the time. He showed to one or more of the witnesses a can of oil that he had procured for that purpose. After the fire, he admitted to three or four witnesses that he had burned said gin, and when they, together with himself, were summoned before the grand jury, and before that too, he urged them not to give him away. In fact, the testimony without doubt clearly established that appellant burned the gin without reference to his own written testimony. His main or sole defense was insanity. The record in this ease, as well as the statement of facts, is voluminous. We think it altogether unnecessary to further detail the testimony.

Appellant’s first bill of exception is to the action of the court in overruling his motion for a continuance. It was sought on account of the absence of appellant’s mother, who lived in Coryell county, but who was temporarily absent-in lyaco, McLennan county, and of his sister, Mrs. Amiott, who was a resident and lived in Waco, McLennan county. There is no question but that this was appellant’s second application for a continuance. He first continued the case at the January term of the Coryell county district court. It appears that at that term both sides announced ready for trial. After proceeding with the trial for some time, a child of one of the jurors became very sick, and in accordance with the law the court permitted that juror, in company with a deputy •sheriff, to go to his home in the country and see the child. After waiting a day or two, it became evident that the juror’s child was too ill for him to leave and would probably ■die, and perhaps did. Appellant at the time he announced ready, when the case was call-ad, stated that one of his material witnesses was absent, and that, if this witness did not ■arrive in time to testify, he would withdraw his announcement of ready, and would then make application to continue on that ac•count. It had been some two or three days ■after this announcement and the proceeding to trial when this witness had still not arrived, and in the dilemma the ease was in, ■and in order to avoid jeopardy, appellant then, with the consent of the state and court, withdrew his announcement of ready, and the case was continued on his application •because of the absence of said witness. This presented some equitable matter for the •court to consider in the second application, but it, as stated above, was unquestionably ■a second application when appellant sought ■a continuance on account of the absence of his mother and sister. The court in approving appellant’s bill complaining of the action of the court in refusing his continuance ■qualified it by stating as follows: “(1) This was the defend'ant’s second application for a •continuance. (2) As to Mrs. Rogers, defendant’s mother, I have to say that this was the third trial of this case. This had ■been tried for lunacy since indictment on -complaint made by his father. At all previous trials including the lunacy trial, Mrs. Rogers, though present, did not testify as a witness. In view of such facts diligence would have required the defendant to take her depositions. (3) The doctor’s certificate shows that Mrs. Amiott’s affliction was also •of some years standing, and must therefore hav*e been known to the defendant and his •counsel and clearly suggested the advisability of taking her depositions. While she had testified at the former trials of the case, her ■condition as stated by the doctor was no worse on the morning he visited her than it ■had been during the years she had been suffering from the infirmity. If it was, the doctor does not say so. He says ‘any undue exercise or excitement will aggravate her condition.’ It occurs to the court that she could have appeared and testified without ‘undue’ excitement or exercise. (4) Again, the testimony was merely cumulative of that of her father, sister, and brothers-in-law who as nonexperts gave their opinion as to the defendant’s sanity. She might have stated other and different reasons for such opinion in aid of and ancillary to her opinion. For this reason, I did not think the application good and for the other reasons •above stated.”

At most, the evidence of Mrs. Rogers and Mrs. Amiott could have been but cumulative evidence. Judge White in his Annotated C. O. P. § 1149, subd. 6, says: “Evidence is cumulative which only multiplies witnesses as to one or more facts already investigated, or only adds other circumstances of the same general character.” We have considered the testimony of appellant’s father, and his other two sisters, who testified, and we think it clear that the testimony of Mrs. R'ogers and Mrs. Amiott would have been merely cumulative. Under the statute a second application for a continuance is not granted as a matter of right, but is in the sound discretion of the court Also, under the statute, after the trial, it is again to be considered by him in the light of the trial, and it must not only appear that the evidence was relevant, material, and probably true, but it must also appear that a different result would be probably produced. Section 647, White’s C. C. P. In our opinion the bill, as qualified by the judge, does not show that the court committed any reversible error in refusing the continuance and in refusing a new trial on that ground.

Another bill by appellant complains that the court erred in admitting the sworn written testimony of appellant before the jury, copied above. All of his objections are based on the theory that the said written statement or evidence was a confession of defendant after arrest under our statute. The court qualified appellant’s bill on this subject with this explanation: “At the time defendant testified before the grand jury he was not under arrest and had no intimation or information that he would be arrested. He testified simply as any other witness. I held that under such circumstances the statute as to confessions of defendants while in custody and under arrest did not apply.” We have carefully considered this question, and it is our opinion that the court’s action and treatment of said testimony was correct. It was not a written confession as provided by our statute. Hence the statute on that subject is inapplicable. So are all the decisions cited by appellant in his brief. Bailtey v. State, 144 S. W. 1000, citing Thomas v. State, 35 Tex. Cr. R. 178, 32 S. W. 771; Jones v. State, 33 Tex. Cr. R. 7, 23 S. W. 793; Paris v. State, 35 Tex. Cr. R. 82, 31 S. W. 855; Wisdom v. State, 42 Tex. Cr. R. 579, 61 S. W. 926; Grimsinger v. State, 44 Tex. Cr. R. 26, 69 S. W. 583. See, also, Pressley v. State, 141 S. W. 215; Harrison v. State, 153 S. W. 143; Mackey v. State, 151 S. W. 803, 804.

As stated above, appellant introduced, among other witnesses, his father, two sisters several years older than hé, and his brothers-in-law, their husbands, and several other witnesses who were persons living in the same community and had lived there for many years, some or all of whom had known him all of his life and had seen him, observed him, and had been about him just like persons living in the same community or little town will see, be about, and communicate witli others. The trend of his •whole evidence was to show that appellant was almost an idiot; that he could not learn at school, did not know how to add, ■subtract, and multiply, etc., and could not be taught it, did not know how to play .games, and could not be taught to play them, and many individual acts showing a lack of mental capacity and development. He also had one doctor who testified, not only from his personal observation, but from hypothetical questions, in substance, that in ■his opinion he was not sane, did not know right from wrong, and was not of‘sufficient : mental capacity to understand right and ■wrong and comprehend what he was doing, ■but that he might be mistaken on these .points. The state in rebuttal of this testimony introduced many of his kinsmen and women on the Lam side of the house, who had known him all of his life. They lived in the same community or town, saw him from time to time, day to day, year to year, just like intimate kinsfolk living in the same ■community see, be with, and observe one another. In addition to this, the state introduced many witnesses, the merchants, bankers, other business men, and a considerable number of appellant’s associates about his own age, or just a little older or just -a little younger, who ran with him for years ■ and from day to day and from time to time, and they all after telling of their observations, and experiences with him, hearing him talk, seeing and knowing of his working in various capacities, many of his trades and purchases, his dealings with the bank, etc., testified in effect that they saw nothing in his -acts, sayings, and doings to make them believe he did not know right from wrong, etc. The character of the testimony introduced by the state was substantially that introduced by the appellant and in rebuttal thereof. Some of these witnesses for the state were permitted, after detailing their dealings with, observation, and knowledge of and hearing and seeing appellant from day to ■day, week to week and year to year, that in their opinion he had the intelligence of an ■average young man of his age; that he knew .right from wrong, and knew it was wrong to burn said gin, and such like expressions •of opinion.

Appellant took various bills of exception to the introduction of such testimony by the state. The court permitted the testimony ■over appellant’s objections, stating as an explanation in allowing the bills: “In the admission of testimony in this case I attempted to follow the Jordan Case in 141 S. W. 786. In view of that decision and cases there cited, I feel that testimony of a witness that ‘he saw nothing out of the ordinary with the defendant’ or that ‘he acted rationally,’ or that ‘he saw nothing to indicate insanity on the part of accused,’ is only a shorthand rendition of the facts. I think that the state could prove as a fact, as was done by the above witness who had had dealings with the defendant, that he saw nothing out of the ordinary with him in the trade and observed no evidence of insanity. I cannot imagine how sanity could be otherwise proven.” In our opinion, all of this testimony was admissible, and the court properly followed the said decision in the Jordan Case, and many other cases of this court along the same line. We think the testimony admitted comes clearly within said decisions, and was the best possible evidence that could be introduced on the subject of sanity or insanity of the appellant. It is unnecessary to cite other authorities or to take up and discuss the evidence and the various bills on the subject. Appellant has another bill complaining of the misconduct of the jury in receiving other evidence while they were considering their verdict. The court had all of the jurors sworn and they testified. In addition to all 12 of them testifying, he heard the affidavit of the one juror whose affidavit was made the basis of said' motion for new trial and the bills of exception, and also the affidavit of the other 11 on the same matter. Taking it as a whole, we think it clearly shows that the jury did not receive and did not consider any evidence other than that properly admitted before them on the trial.

The one juror upon whose affidavit said ground of the motion was based swore and testified in substance that he would not have agreed to the verdict of guilty, unless the other 11 jurors had agreed to sign a recommendation for appellant’s pardon, which they agreed to do. It has uniformly and many times been held by this court that no juror should be permitted to impeach his verdict on this account, and that such ground is insufficient to authorize or require a new trial. Montgomery v. State, 13 Tex. App. 74; Henry v. State, 43 S. W. 340; Bearden v. State, 47 Tex. Cr. R. 271, 83 S. W. 808; Bacon v. State, 61 Tex. Cr. R. 210, 134 S. W. 690.

Another ground of appellant’s complaint is to the charge of the court to some paragraphs and one claimed omission therein. In order to discuss these, we will quote the charge in full, numbering the different paragraphs. After correctly stating the charge against appellant by the indictment and his plea of not guilty, the charge is:

(1) “Arson is the willful burning of a house.”

(2) “A house is any building, edifice, or structure inclosed with walls and covered, whatever be the materials used for the building.”

(3) “The meaning of the term willful as used in the definition of this offense is that the act must be committed with an evil intent, or with legal malice, or without reasonable ground for believing the act to be lawful.”

(4) “Now if you believe from the evidence beyond a reasonable doubt that on or about the 27th day of August, A. D. 1911, in Coryell county, Tex., the defendant did then and there willfully set fire to and burn that certain house mentioned in the indictment in this case, and that the said house was then and there the property of Lam & Rogers, a firm composed of E. B. Lam and W. L. Rogers, as alleged in the indictment,' you will find the defendant guilty of arson as charged in the indictment, and assess his punishment at confinement in the penitentiary for not less than 5 nor more than 20 years.”

(5) “Among other defenses made in this case is that of insanity. Xou are charged that only a person of sound memory and discretion can be held punishable for a crime, and that no act done in a state of insanity can be punishable as an offense.”

(6) “Every man is presumed to be sane until the contrary appears to the jury trying him. He is presumed to entertain, until this appears, a sufficient degree of reason to be 'responsible for his acts; and to establish a defense on the ground of insanity it must be proved that at the time of committing the act the party accused was laboring under such defect of reason from disease of mind as not to know the nature or quality of the act he was doing, or if he did know that he did not know he was doing wrong — that is, that he did not know the difference between right and wrong as to the particular act charged against him.”

(7) “The insanity must have existed at the very time of the commission of the offense, and the mind must have been so dethroned of reason as to deprive the person accused of a knowledge of the right and wrong as to the particular act done.”

(8) “You are to determine from the evidence in this case the matter of insanity, it being a question of fact, controlled, as far as the law is concerned, by the instructions given you.”

(9) “In case you find from the evidence that the defendant was insane at the time of the commission of the act, if he committed it as alleged in the indictment, and you acquit him, under the instructions heretofore given you, you will state in your verdict that you have acquitted the defendant on the ground of insanity.”

(10) “The defendant in a criminal ease is presumed to be innocent until his guilt is established by legal, competent evidence beyond a reasonable doubt, and in this case, if you have a reasonable doubt of the defendant’s guilt, you will acquit him, and say by your verdict not guilty.”

(11) “You, gentlemen of the jury, are the exclusive judges of the credibility' of the witnesses, of the weight to be given to the testimony, and of the facts proven, but you are bound to receive the law from the court as given you in this charge and be governed thereby.”

It is elementary that the charge of the court must be taken as a whole. Of course, all the law applicable to the case cannot be given in one paragraph, and it takes several to give the charge in full. Appellant complains of the fourth paragraph, in that it ought, at the end, to have added thereto this: “Unless you find the defendant not guilty under other instructions herein given you.” He complains of the fifth paragraph, claiming that it virtually instructed the jury that an insane person can commit crime, though he is not amenable to the law. He complains of the ninth paragraph, because the court nowhere in the charge prior to this language instructed the jury how or under what circumstances they could acquit defendant, and claims that the charge should have stated to the jury in plain and unmistakable language that, if they found defendant insane or that he was of unsound mind and unable to distinguish right from wrong, to acquit him. We regard all these criticisms as rather hypercritical. Taking the charge as a whole, we think, without question, the jury therefrom could not have convicted the appellant, in the first place, unless he willfully burned the gin, and that he was sane when he did so and knew that he was doing an unlawful act. We think that it does not instruct the jury that he could commit a crime for which he was punishable while he was insane. And, taking it as a whole, we think that the jury could not have understood otherwise than that if he was insane when he committed the act that they should acquit him on that ground.

Appellant requested no special charge, did not attempt thereby or otherwise during the trial to get a fuller and more pertinent charge. If the charges complained of should have been as appellant now contends, “it was his duty to request additional charges,” and, not having done so, his criticisms present no reversible error. Dozier v. State, 62 Tex. Cr. R. 262, 187 S. W. 679, and authorities therein cited.

Notwithstanding this is a voluminous record, both the record proper and the statement of facts, we have carefully considered the whole of it, and in our opinion it establishes clearly, not only the guilt of the appellant, but that he was sane and not insane when he committed the act.

• The judgment will be affirmed.  