
    MAYNARD v. STATE.
    (No. 10702.)
    Court of Criminal Appeals of Texas.
    April 20, 1927.
    1. Homicide <&wkey;>338(4) — Permitting testimony that deceased was paralytic held not error, in view of facts and verdict of guilty in murder case.
    Permitting state to introduce testimony that deceased was paralytic held not error in murder case, where court instructed jury not to consider it, in view of verdict of guilty and facts of case; the defendant being an inmate of state institution for epileptics, but not insane.
    2. Insane persons <&wkey;49 — Commitment to Abilene State Hospital for Epileptics, not requiring adjudication of insanity, is not equivalent to commitment -to insane asylum (Rev. St. 1925, arts. 3223-3232).
    Act of the county judge in committing one to the Abilene State Hospital for Epileptics, under Rev. St. 1925, arts. 3223-3232, providing the requirements to admission, and not requiring adjudication of insanity, is not equivalent to commitment to the insane asylum.
    3. Insane persons <&wkey;>26 — Proof, of judgment of insanity entered under statute would require party attacking it to show person had since become sane (Rev. St. 1925, arts. 5550-5561).
    Evidence of judgment of insanity entered on finding of a jury pursuant to Rev. St. 1925, arts. 5550-5561, pertaining to lunatics, would require the party -attacking it to show that since the date of the judgment the person had become sane.
    4. Criminal law &wkey;525 — Voluntary confession of inmate of Abilene State Hospital for Epileptics held admissible in murder case, burden being on defendant to prove insanity.
    Admitting in evidence, in a murder case, voluntary confession of defendant, who was an inmate of the Abilene State Hospital for Epileptics at the time of homicide, held proper; the burden being on the defendant to show that he was insane.
    5. Homicide &wkey;»270 — Issue of sanity of defendant in murder case, who was inmate of Abilene State Hospital for Epileptics, held for jury.
    In murder case, the issue of sanity of defendant, who was an inmate of the Abilene State Hospital for Epileptics at the time of the homicide, was for jury.
    6. Criminal law <&wkey;723(I) — Prosecutor’s argument in murder case against epileptic, alleging public danger of exempting epileptics from punishment, held inflammatory, requiring reversal.
    Prosecutor’s argument in murder case against defendant, who was inmate of state hospital for epileptics at time of homicide, alleging public danger of permitting epileptics to be exempt from punishment, held inflammatory, and to require reversal, where punishment assessed was greater than minimum.
    7. Criminal law <&wkey;723 (I) — District attorney should not make speech calculated to appeal to passion and prejudice of jury.
    The district attorney should not make an inflammatory speech calculated ,to appeal to the passion and prejudice of the jury.
    Commissioners’ Decision.
    Appeal from District Court, Taylor County; W. R. Ely, Judge.
    Robert Maynard, was convicted of murder, and he appeals.
    Reversed and remanded.
    Oliver Cunningham and Ernest W. Wilson, both of Abilene, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of murder, and his punishment assessed at eight years in the penitentiary.

The record discloses that appellant and deceased, at the time of the homicide, were inmates of the Abilene State Hospital, a state institution provided for the treatment of epileptics. It further appears from the record that appellant, contending that deceased had stolen from him about $10 in money, attacked deceased with a knife and cut his throat. The appellant did not testify on the trial, but interposed the defense of insanity.

The record contains eight bills of exception. In bill No. 1 complaint is made to the action of the court in permitting the state to show by Dr. Shytles, one of the physicians at the hospital, that deceased was a paralytic, and had no use of one arm and one leg; it being contended that said testimony was irrelevant, immaterial, and prejudicial, and that the court, in his attempt to withdraw same from the jury immediately thereafter, by instructing them not to consider it, did not eliminate the injury done to the appellant. Under the facts, and in view of the verdict, we are of the opinion that there is no reversible error shown in this bill.

Appellant’s counsel, in their able brief, complain of the action 'Of the court in permitting the state to introduce in evidence a voluntary confession made by appellant to the county attorney, and of the action of the court in charging the jury that the burden of proof was upon appellant to show that he was insane at the time of the homicide. It is strenuously insisted by appellant’s counsel that the admission of said confession was erroneous, because the appellant was an inmate of the Abilene State Hospital by virtue of a “commitment” issued by the county judge of Lamar county, placing him in custody of the superintendent of said hospital, and that, being insane, he was incapacitated to make a voluntary statement, and that the court erred in charging the jury that the burden of proof was upon appellant to establish his insanity, but should have charged that the burden was upon the state to prove the defendant’s sanity at the time of the homicide. These objections are embodied in bills of exceptidn 5 and 6.

Appellant’s counsel take the position that the evidence shows that at the time of the homicide appellant was in the care of the superintendent of said hospital, and had been for several years, and that the act of the county judge of Lamar county in “committing” him to said institution was equivalent to the commitment of lunatics to the insane asylum, and that the instant case would come under the doctrine announced by this court to the effect that, when it is shown that a lunatic has been tried, convicted, and committed to the insane asylum, the burden of proof is upon the state, in the event of his subsequent trial for a criminal offense, to show that the accused was sane at the time of the alleged commisison of the offense, citing Morse v. State, 68 Tex. Cr. R. 351, 152 S. W. 927. Appellant also contends that articles 3223-3232, inclusive, of the Revised Civil Statutes of 1925, show that the Legislature intended to treat this institution as one for the insane, and regarded all epileptics placed therein as being insane subjects.

We are not in accord with this contention. Article 3224, R. O. S., exempts from this institution idiots and imbeciles, and classifies those eligible to enter it as indigent public patients, nonindigent public patients, and private patients. The record shows that the appellant in this case was classified as a public patient. Article 3228, states that for a public patient there must be made an application under oath to -the county judge for admission to this institution, showing the name of the epileptic, sex, age, property, if any, the value thereof, residence, occupation, parent or guardian, husband or wife, if any, children, relatives similarly affected, etc. Article 3229 requires a certificate from a reputable physician, certifying the age of the epileptic at the first attack, the date of the last attack, physical condition, and bodily disorders. Article 3230 makes it the duty of the county judge, when said application shows that the applicant is entitled to admission, to forward the application to the superintendent of the institution, together with a full copy of the proceedings had in such case. These statutes embrace all the prerequisites necessary to entitle one suffering from epilepsy to admission to said hospital, and there is nothing therein requiring the applicant to show that he is within that class referred to by the expert testimony in th'e instant case as “epileptic insane,” and there is nothing requiring the county judge to adjudicate any issue of insanity on the part of the applicant, but the county judge merely ascertains and certifies that the applicant meets the requirements set out in the statutes referred to.

On the other hand, articles 5550-5561, inclusive, R. O. S. 1925, pertaining to lunatics, require a trial before a jury, a finding on special issues, one of which is that the defendant is of unsound mind, and it is necessary that he be placed under restraint, and a judgment entered upon said finding, adjudging defendant of unsound mind, and ordering him to be restrained and given treatment in an insane asylum. Of course, when a judgment of this kind is properly entered, adjudging defendant insane, and ordering him tovbe restrained and treated in an insane asylum, it bears and carries the same verity as any other judgment, and when such a judgment is shown in evidence it would devolve upon the party attacking it to show by a preponderance of evidence that the defendant, since the date of said judgment, has become sane. We think there is a wide contrast between a judgment of insanity against a lunatic under the articles, supra, and the forwarding of an epileptic’s application and copy of the proceedings had by the county judge to the superintendent of the epileptic hospital. 'The evidence discloses that the state’s witnesses, or some of them, testified to the sanity of the appellant at the time of the homicide, while appellant’s witnesses testified, in effect, that he was insane.

After a careful examination of the entire record, and the authorities cited and available to us, we are of the opinion that the record shows no error in the. action of the court in admitting the voluntary statement of the ¿ppellant in evidence, and in charging that the burden of proof was upon the appellant to show that he was insane at the time of the homicide. This issue was for the jury to decide, and we think that, under the facts of this case, the charge properly submitted same to them. Apolinar v. State, 92 Tex. Cr. R. 583, 244 S. W. 813.

In bills of exception 2, 3, 4, and 8 complaint is made as to the closing argument of the district attorney, as follows:

“If the time has come when a man may cut the throat of another man and claim exemption from punishment because he is an epileptic, then it is high time the honest jurors of Taylor county do something to remedy the condition; else all those colony patients will be made to know that they cannot be punished, for their crimes and they will all turn murderers.”
“If you send this man to the penitentiary, and he kills 25 penitentiary guards, and he is tried and convicted of their murder, he will have his remedy of Ma Eerguson and she can get others to take their place.”
“He, the defendant, has let his whiskers grow out just for the purpose of looking as bad as he can for this trial.”
“This is a dangerous man. Sane or insane, he ought to be confined somewhere. His attorneys argue that he should be sent to the asylum. JtSut I tell you that if you acquit him he cannot be sent to the insane asylum without a jury trial in the county court, before six men; and the first witness his lawyers will present to prove he is not insane, in that court, will be Dr. Shytles, the best authority on mental diseases in this community; and he has already sworn that he is sane, and he will have to swear in the county court that he is sane. And on his testimony this man will be turned loose on this community, a menace to every man.”

The appellant made timely objections to all of the arguments quoted above, but all of said objections, except that to the statement quoted in the last paragraph, were overruled by the court. When the last statement was objected to, the court verbally instructed the jury not to consider same, and qualifies this bill of exception by stating that this argument was in reply to a statement made by appellant’s counsel to the effect that the appellant should be acquitted and tried in the county court and sent to the insane asylum.

We are of the opinion that the arguments complained of were improper, highly inflammatory, and of such a character, under the peculiar facts of this case, as to appeal to the passion and prejudice of the jury. The punishment assessed being greater than the minimum, we are unable to say that this character of argument, was not of such a nature as would require a reversal of the case. On the contrary, it appears to us that same was bound to injure the appellant, and for that reason the case must be reversed.

This court has held many times that it was wrong for the district attorney, in his argument to the jury, to make an inflammatory speech of this kind, especially where the facts are calculated to appeal to the passion and prejudice of the jury. In the case of Smith v. State, 55 Tex. Cr. R. 563, 117 S. W. 970, on rehearing, this court reversed that case on account of argument of a similar nature to that made in the instant case. In Nichols v. State, 290 S. W. 1093, this court, through Judge Lattimore, in discussing improper argument of the district attorney, stated:

“This court regrets very much the necessity for the reversal of cases because of improper argument. Room for proper argument is so wide that it seems unnecessary that language of this kind should be used. We know of no way by which the evil of such argument can be prevented. The only thing we can do is to call the attention of the prosecuting attorneys to the impropriety thereof, and to attempt by reversal to prevent the injury in a particular case.”

For the error above .discussed, the judgment of the trial court is reversed and remanded.

PER CURIAM. The foregoing opinion ef the Commission of Appeals has been examined'by the judges of the Court of Criminal Appeals and approved by the court. 
      
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