
    LANGHORN v. STATE.
    (No. 9656.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1926.)
    1. Criminal law &wkey;o|2l — Refusing change of venue, in murder case, where defense was insanity, held not abuse of discretion.
    In murder prosecution, where sole defense was insanity, overruling motion to change venue because of prejudice held, under facts, not abuse of discretion.
    2. Criminal law <©=== 1169(f 2) — Testimony of conversation with defendant after arrest and while in jail, to show his sanity, held not harmful, where killing was admitted.
    In murder prosecution, where facts.showed no contest of fact of killing and sole defense was insanity, testimony of witness of conversation with defendant after arrest and while in jail, to show his sanity, held not harmful.
    3. Criminal law &wkey;>5!9(3) — Ordinarily, testimony of conversations with defendant, while under arrest, is inadmissible.
    In murder prosecutions, ordinarily, testimony as to conversations with defendant, while under arrest and in jail, is inadmissible.
    4. Criminal law <&wkey;>452(2) — Nonexpert having fair opportunity to form judgment may testify to conversations with accused and give opinion as to his sanity.
    Nonexpert witness may give opinion as to sanity of accused, if his testimony shows him to have fair opportunity for forming judgment and he testified to conversations had with accused.
    
      5. Criminal law <&wkey;663 — Refusal to compel state to deliver to defendant letter written by defendant shortly before homicide held not error.
    In murder prosecution, where sole defense' was insanity, refusal to compel state to deliver to defendant letter picked up along route taken by defendant, when pursued by officers, held not error, where state had not used it or referred to it at trial.
    6. Criminal law &wkey;U 141 (2) — Cases are not reversed in speculation.
    The Court of Criminal Appeals does not reverse cases on speculation.
    7. Homicide <&wkey;>294(l) — Refusal of charge, that, if killing was at time when defendant’s faculties were beyond his control, defendant was not accountable, held not error.
    In murder prosecution, requested charge, that, if defendant took life of deceased at time when his mental and physical faculties were beyond control, he would not be accountable, held properly refused, doctrine of irresistible impulse not being recognized.
    8. Criminal law <&wkey;>784(4) — Requested charge that if jury considered accused insane, so did not consider confession, case was one of circumstantial evidence, held properly refused.
    In murder prosecution, where sole defense was insanity, requested charge that if jury considered defendant insane and because thereof they did not consider his confession, then case was one of circumstantial evidence, held properly refused.
    9. Criminal law &wkey;>778(7) — Charge that burden on defendant was not to show beyond reasonable doubt he was insane held properly refused.
    In murder prosecution, where main charge did' not raise inference that burden was on defendant to show insanity beyond reasonable doubt, it was unnecessary to give requested charge that burden was not on defendant to show beyond reasonable doubt he was insane.
    10. Criminal law <&wkey;730'(14) — Argument that' before lawyers had chance to get defendant crazy he knew right from wrong held not material injury, in view of instruction.
    In murder prosecution, where sole defense was insanity, argument of district attorney, that before lawyers had had chance to get defendant crazy he knew right from wrong, held not to show material injury to defendant, in view of instruction not to consider.
    Appeal from District Court, Eayette County; M. C. Jeffrey, Judge.
    William H. Langhorn was convicted of murder, and he appeals.
    Affirmed.
    John M. Mathis, of Houston, B. F. Teague, of Brenham, and Wolters, Story, Blanchard & Wolters and Heidingsfelder, Kahn & Branch, all of Houston, for appellant.
    F. J. Kallus, County Atty., of La Grange, Fred L. Blundell, Dist. Atty., of Lockhart," Sam D. Stinson State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORB, J.

Conviction in district court of Fayette county of murder; punishment fixed at death.

On the trial of this case, no issue in testimony was made by the" appellant upon the fact of the killing. It is made to appear from the statement of facts that appellant introduced no witness controverting the state’s testimony that he did shoot and kill Valeria Zapalac, as alleged in the indictment, and as admitted by him in a voluntary statement made after the homicide. It further appears in several bills of exception that no claim was made by appellant’s counsel in argument that he did not kill deceased, but, on the contrary, that said fact was admitted in said argument, the only contention of the defense being that appellant was of unsound mind at the time he shot and killed said girl.

Bill of exceptions No. 1 presents compláint of the overruling of a motion for a change of venue sought because of alleged prejudice in the minds of the citizenship of Fayette county, because of which appellant said he could not get a fair and impartial trial. The application for said change of venue, sworn to by appellant, was supported by the affidavits of two compurgators, one of whom made a counter affidavit on the same date as that of his supporting affidavit, in which counter affidavit he swore that Jie signed the supporting affidavit without knowledge that it alleged the existence of prejudice against appellant in said county, and in said counter affidavit said compurgator states, under oath, that he knows of no such prejudice in said county, but, on the contrary, he believed the accused could obtain a fair and impartial trial therein. Save the affidavits of appellant’s counsel that said compurgator made the supporting affidavit voluntarily and after it was explained to him, the matter of said application was before the court in the condition just referred to-Whether, in view of our statute which re-, quires that there be affidavits of at least twe credible persons supporting an application for change of venue, and the holdings in our opinions that .one such supporting affidavit is not sufficient (Macklin v. State, 53 Tex. Cr. R. 197, 109 S. W. 145; Gibson v. State, 53 Tex. Cr. R. 349, 110 S. W. 41), there was before the trial court such application, so supported as-to legally present an issue, is a serious question ; but, since the court below acted upon the matter as though there was before him a properly supported application, we pass the-question, simply calling attention to what might have presented an otherwise serious matter.

The state traversed the application, and on the issue evidence was heard and the application denied. In such case, Mr. Branch in § 299 of his Annotated P. O. states the rule as follows:

“Unless it is clear that the trial court has abused or arbitrarily exercised his judicial discretion, his action in refusing a change of venue will he sustained on appeal.”

In the early case of Noland v. State, 3 Tex. App. 598, it is said that, unless it should be made to appear that this discretion has been abused or arbitrarily exercised, to the prejudice of the accused, etc., this court would not be warranted in interfering with the action of the trial court. In Bohannon v. State, 14 Tex. App. 302, Judge Willson reaffirms this statement with citation of many authorities. See, also, Carlile v. State, 90 Tex. Cr. R. 1, 232 S. W. 822.

We do not attempt' to set out at length the evidence heard by the court which is preserved in the bill of exceptions under consideration. Appellant put on the stand more than 40 witnesses developing the publicity given to the homicide by papers of Fayette county, the excitement, and general ■discussion in La Grange, the county seat, etc. Most of these witnesses expressed themselves as being of opinion that there was no such prejudice among the citizenship of said county as would preclude a fair and impartial trial. Some expressed the contrary view. The state introduced about 10 witnesses from ■different parts of the county, all of whom testified that they had extensive acquaintance, and that there was no such prejudice in said county as would militate against appellant obtaining the fair and impartial trial ■guaranteed him by law. The original application for change of venue was presented on the 16th of February, and, after hearing ■same, the case was postponed, upon application of the accused, to the 12th of March following, at which time said application for change of venue was renewed, but no new evidence introduced. We have considered this matter carefully, and examined as closely as we could all of the testimony of the witnesses, and are unable to bring ourselves to the conclusion, upon this record, that same shows ■any abuse of the discretion confided in the trial judge in this matter. We note that, in considering same in connection with the motion for new trial, it was not inappropriate for the court below to give some weight to the proposition that there was no contest in the testimony of the fact that appellant shot and killed deceased because of her resistance to •attacks by him upon herself and her sister, and that the only contest made was whether appellant was of sound mind at the time of the killing,- and that upon this issue practically no discussion or prejudgment was shown to have existed or been had in said ■county; we also think the court might take into consideration the further fact that, after the motion for change of venue was overruled, a jury was obtained out of the first 5T veniremen summoned, appellant and the state each using only 7 of their 15 peremptory challenges. We find nothing in Dobbs v. State, 51 Tex. Cr. R. 629, 103 S. W. 918, or Cox v. State, 90 Tex. Cr. R. 106, 234 S. W. 72, opposed to what we have just said. The facts, shown in the opinions in said eases, bearing on the application for change of venue, were vastly different from those in the instant case.

Appellant has a bill of exceptions to the testimony of witness Lidiak who was offered by the state to show sanity on the part of appellant, and who said he had a conversation with appellant after he was arrested for this crime and while in jail. Witness asked him how he came to tell those girls his name was Willie Coy, and defendant said he was just fooling them; witness had another talk with defendant afterward about his automobiles, and appellant said he had two or three cars, one a Buick and another a Ford in which the fatal ride was taken. An objection to this testimony was that it presented riiatter material to the question of the guilt of appellant and said statements were made while appellant was under arrest and unwarned. There is no question but that the rule in ordinary cases is against the admission of such testimony. Hurst v. State (Tex. Cr. App.) 40 S. W. 264; Cavanar v. State, 99 Tex. Cr. R. 449, 269 S. W. 1053; Kellum v. State, 91 Tex. Cr. R. 272, 238 S. W. 942. If the facts in the instant case showed any contest on the part of the defense of the charge that he killed deceased, the matter would be one of different aspect. When a record shows that there was no such dispute in testimony or before the jury, it would seem that the admission of the statements referred to would necessarily come under the category of harmless error. In other words, appellant’s sworn voluntary statement was in evidence admitting that he killed deceased. The entire record aside from the plea of not guilty, evidences agreement on the part of thosé representing appellant that he did so act. In the absence of any contest over this issue, we cannot see how any injury could have resulted from the introduction of the testimony under discussion.

Bills of exception Nos. 5 to 12, inclusive, were taken to the admission of the testimony of a number of nonexpert witnesses introduced by the state combating appellant’s plea of insanity. Appellant’s position, in each instance, was that the witness had not shown himself to have had that extent and length of acquaintance and observation that would justify the court in letting him testify and give his opinion that appellant was sane.' Each of said witnesses testified to personal conversations with and observations of appellant, and each stated the language used in said conversations and some portions of the manner, deportment, and appearance of appellant at the time. The, strongest objection would lie against the testimony of two of said witnesses who had been with appellant but once, and who detailed what he said and did on these occasions and were permitted, after so doing, to say that, in their opinion, he was of sound mind and knew right from wrong.

This court has often been called upon to decide whether trial courts had exceeded the discretion necessarily confided in them in this regard. It has uniformly said that nonex-pert witnesses may give their opinion as to the sanity of persons, when this is an issue, if their testimony shows them to have had fair opportunity for forming such judgment, and we have practically said that, where the witness bases his testimony on personal conversations with and observations of the accused, this matter must be confided to the wisdom and discretion of the trial courts, and that we will be loath to interfere unless there is, a clear abuse of such discretion. Necessarily, there can be no exact rule on this point. No two nonexpert witnesses will manifest equal knowledge, or show themselves' to have had the same opportunities. Hence the necessity for the conclusion announced. If this court should attempt to say that, before a nonexpert witness should he allowed to give testimony on this point,he must have had so much opportunity fox-observation, or such a length of association, or detail such and such facts with particularity, this would manifestly not fit the cases differing in facts. We said in the case of Shields v. State, 104 Tex. Cr. R. 253, 283 S. W. 844, that it is well settled in this state that a nonexpert witness, who has shown reasonable opportunity to observe the acts and conduct of the party inquired of, may state that he has never observed' anything therein which led him to believe or conclude such party of unsound mind or abnormal. We. also stated that we were unable to draw the fine distinction between the admissibility of a statement by a witness who shows himself to have seen, associated and been with another enough to say that he never heard or saw anything in the words, looks, and acts of such other to indicate that he was of unsound mind or abnormal, and the putting before the jury of the same testimony, in effect, by saying that he was of opinion that the party was of sound mind. While a non-expert witness may not give his opinion upon a hypothetical case, still, it seems to us that if he testifies to actual personal conversations with and observation of the party whose sanity is under investigation, he may be allowed to express his opinion, subject always to the right of cross-examination, so that, if the opinion is entitled to slight weight by reason of lack of length of association or opportunity to form the opinion expressed, this may be brought out before the jury. We are unable to agree with appellant’s contention appearing in any of these bills of exception.

Appellant complains in bill of exceptions No. 13 because the trial court refused to compel the state’s attorney to deliver to appellant’s counsel, or to submit to them for their inspection, a letter or document claimed by appellant to have been written some time shortly before the homicide, and which was picked up at some point along the route taken by appellant when pursued by the officers immediately after the killing, which letter or document was addressed to appellant’s father and was supposed by appellant to manifest facts tending to support the proposition of his insanity. The most that appellant showed in support of this proposition was that the district attorney had in his possession a document found shortly after the homicide along the route taken by appellant after the killing, which document was addressed to appellant’s father, and which document, the district attorney stated, when placed on the witness stand for purposes of the bill, was considered by him to be material to the prosecution of appellant in this case or companion cases on file charging him with the murder and rape of a sister of deceased. Whether the district attorney .considered same material as bearing on the mental condition of appellant or upon other issues arising, does not appear from the bill.

We are cited to no authority by appelr lant in support of his contention that the trial judge erred in refusing to compel the district attorney to let him see this letter. We have explored the avenues of information open to us and find no authority to support said contention. The state would be entitled to use against appellant such document, if it contained incriminating evidence, but appellant does not bi-ing himself within any rule requiring the state to deliver to him such a document. The state had not used it or referred to it in the trial in any way. Its relevance or materiality, if any, does not grow out of any connected or partially introduced fact. Whether same contained rhe incoherent statements of a disordered mind, or a statement of some facts showing his purpose or plan to commit the crime chaiged. are matters about which we. are equally in the dark. If appellant wished to have the paper in a regular way, he might have had a subpoena duces tecum for same. None was asked. In Morrison v. State, 40 Tex. Cr. R. 488, 51 S. W. 358, we said that the state was not compelled to disclose to defendant before the trial the number or character of letters, written by defendant, which were in the possession of the prosecution. The proposition of injury in this matter is purely a hypo thesis. This court does not reverse cases upon speculation.

In addition to the court’s regular charge on the question of insanity, he gave appellant’s requested charge No. 4, stating, in substance and effect, that all the testimony of the various witnesses as to the acts and conduct of appellant prior to the date of the alleged hilling, and all the testimony introduced as to the conduct, actions, and demeanor of appellant was before them for the purpose of aiding them, if same did so, to determine the issue of sanity or insanity at the time of the killing,'and that it could be considered for no other purpose whatever. The court’s charge on insanity appears to he quite lengthy and, to' our minds, seems to sufficiently present the law .of said issue. Appellant sought to have the jury told by his special charge No. 1 that, if it was true that he took the life of deceased and that at such time his mental and physical faculties were beyond his control, etc., he would not be accountable to the law. It is not clear to us what an instruction such as this could have meant. Our courts do not recognize the doctrine of irresistible impulse, whether mental or physical. We think the charge properly refused.

Appellant sought also, by his special charge No. 2, to have the jury told that if they considered appellant insane, and because of that fact they did not consider the confession introduced by the state, then the case was one of circumstantial evidence. The instruction was properly refused. If the jury believed the appellant insane, he should have been acquitted, and the charge so informed them.

There being nothing in the main charge from which the jury could have inferred that the burden was upon appellant to show insanity beyond a reasonable doubt, it was therefore not necessary to give special charge No. 3 which sought to have the jury instructed that the burden upon appellant was not to show beyond a reasonable doubt that he was insane. We have examined each of the other special charges and do not deem the refusal of any of them to manifest error.

There is a bill of exceptions taken to the argument of the district attorney. The argument is set out at some length in the bill of exceptions, as presented to the court below, but the trial judge approves same with the explanation that no exception was addressed to the argument as set out, and that the objection made was as follows:

“If your honor please, we desire to take a bill of exception to the untrue remarks of the district attorney that the lawyers got Willie Langhorn crazy.”

The court further states that the district attorney did not say that the lawyers got Willie Langhorn crazy, but did say:

“Before the lawyers had had a chance to get Willie Langhorn crazy, the officers had had-him examined by reputable alienists who told you that he was sane and knew right from wrong.”

The record further reflects that, at the request of appellant’s counsel, the court gave the jury a written instruction that they should not consider the argument referred to. We are not impressed with the view that the jury attached shch weight to the above statement as to make it show material injury to the rights of the accused.

There is another bill of exceptions taken to the argument of counsel for the state, but, as qualified and explained by the court, it shows that said argument was made directly in reply to matters brought out and argued by counsel for appellant, and that same did not appear to transcend the bounds of a legitimate reply to the argument so made in behalf of the defense.

' We are not unmindful of the fact that, in this case, the extreme penalty of the law was assessed by the jury in fixing the punishment, and we have given the case as careful and deliberate attention as we have the power to do, but, being of opinion that the record manifests no reversible error, the judgment will be affirmed. 
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