
    McKENNY v. STATE.
    (No. 10096.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1926.)
    1. Criminal law <S=>844(I) — Exception that charge on insanity “makes it more onerous on the defendant and does not correctly charge the law on insanity” will not be considered (Code Cr. Proe. 1925, art. 658).
    Exception to charge on insanity, in prosecution for murder, on ground that it “makes it more onerous on the defendant and does not correctly charge the law on insanity, as is shown by the evidence in this case,” will not be considered, in view of Code Cr. Proc. 1925, art. 658, since it points out no particular in which charge is onerous or law incorrectly charged.
    2. Criminal law <®=>48 — Mere weakness of mind will not preclude criminal responsibility.
    Mere weakness of mind will not excuse one from consequence of criminal acts.
    3. Homicide <g=o27 — One pleading insanity in murder case must show that he did not know right from wrong as to particular act charged.
    Burden is on one pleading insanity, in prosecution for murder, to show that he did not know right from wrong as to particular act charged.
    4. Criminal law <©=>311 — One insane only at times will be presumed to have acted, in particular case, in moment of sanity.
    One who is at times sane and at other times insane will be presumed to have acted, in particular case, in moment of sanity, in absence of contrary proof.
    Appeal from District ' Court, Fort Bend County; M. S. Munson, Judge.
    Pete McKenny was convicted of murder, and be appeals.
    Affirmed. i
    
      E. T. Branch and Chernosky, Jeffrey & Douglas, all of Houston, and Edward Rising-•er, of San Antonio, for appellant.
    Sam E. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst State’s Atty., of Groesbeck, for the State.
   LATTIMOR®, J.

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

There are five bills of exception which are not of merit enough to call for discussion. Appellant briefs only the proposition that the charge on insanity was erroneous. The exception to this charge is as follows:

“Defendant objects to paragraph 9 of the court’s charge, same being a charge on insanity, because the' said charge makes it more onerous on the defendant and does not correctly charge the law on insanity, as is shown by the evidence in this case.”

Our statute (article 658, 1925 C. C. P.) requires that exceptions to the charge shall “distinctly specify each ground of objection.” The exception in the instant case quoted above does not comply with this requirement of the statute. Pinkerton v. State, 94 Tex. Cr. R. 127, 249 S. W. 1066; Regittano v. State, 96 Tex. Cr. R. 477, 257 S. W. 906; Blackmon v. State, 95 Tex. Cr. R. 116, 252 S. W. 803; Morris v. State, 96 Tex. Cr. R. 605, 258 S. W. 1065; McCauley v. State, 97 Tex. Cr. R. 1, 259 S. W. 938; Littleton v. State, 91 Tex. Cr. R. 205, 239 S. W. 202; Gill v. State, 84 Tex. Cr. R. 531, 208 S. W. 926; Riordan v. State, 101 Tex. Cr. R. 279, 275 S. W. 1017. The ruling of this court in construing this statute is illustrated in the Pinkerton Case, supra, wherein the objection made to the charge was as follows:

“Because said paragraph is not applicable to the facts of this case, and imposes undue burdens and limitations on the defendants, and is entirely too restrictive when applied to the facts of this case.”

This appears .very like the objection made in the instant case. We there said, speaking through Judge Hawkins:

• “The exception was not elaborated, and in no way was it undertaken to point out to the trial court in what particular the paragraph in question was not applicable to the facts, nor in what way it imposed undue burdens or limitations on appellants, nor in what manner it was deemed by them too restrictive.”

Applying the same reasoning to the exception in the case before us, it is manifest that ■to say a charge is onerous, which does not' eorrectly charge the law of insanity, points out no particular in which said charge is onerous or in which the law of any issue is not correctly stated; it specifies no words, phrases, or .statements deemed onerous in effect, and none which, either by commission or omission, fails to properly present the law of insanity.

To meet the charge that the attorneys “waylaid the trial judges” by omnibus and blanket exceptions, and to give notice that unless exceptions to the charge were so framed as to point out to the court some particular part complained of, the present law, requiring the charge to be read to the jury and presented to the accused before argument, and that specific objections to the charge must be made, was passed. In Gill v. State, supra, where the exception was that paragraph 4 of the charge was on the weight of the evidence, we said, speaking through Judge Morrow:

“These provisions were made with the purpose of advising the trial judge, before his charge is given to the jury, of defects, affirmative or negative, which in the judgment of counsel for the accused occurred in the charge, and to afford the trial judge the opportunity to amend the charge enlightened by the views of counsel for the accused.
“No form of objection is prescribed, and, in the nature of the case, none can be laid down, but the charge complained of and the objection made must be considered together, and, if it is sufficiently definite to make reasonably apparent to the trial judge the faults complained of, it will be regarded on appeal as a substantial compliance with the requirements of the statute. The statute demanding that the objections shall be distinctly specified is not ordinarily met by a general objection.”

This being a case in which the death penalty was inflicted, we have considered appellant’s attack upon the charge viewed from every angle. Appellant introduced three witnesses, his father, sister, and brother-in-law. Neither the father nor the sister testified that, in. their opinion, appellant was insane. The brother-in-law testified in one place, after saying that witness’ wife was not bright, that this boy (evidently referring to the appellant herein) is crazy, too. He further stated that the only crazy thing he had ever known appellant to do was when he killed his wife, and stated that appellant had been the only support of his mother, had made a crop every year, never was in rackets, worked good, was good to his team, knew right from wrong in some things, etc. Our law requires more than mere weakness of mind to excuse one from the. .consequence of criminal acts, and the burden is on him who is charged and pleads insanity to show that he does not know right from wrong as t.o the particular act charged. Mitchell v. State, 52 Tex. Cr. R. 37, 106 S. W. 124; Coffey v. State, 60 Tex. Cr. R. 77, 131 S. W. 216; Cox v. State, 60 Tex. Cr. R. 471, 132 S. W. 125; Fletcher v. State, 62 Tex. Cr. R. 417, 138 S. W. 109; Hogue v. State, 65 Tex. Cr. R. 539, 146 S. W. 905; Douglas v. State, 73 Tex. Cr. R. 385, 165 S. W. 933. In Leache v. State, 22 Tex. App. 311, 3 S. W. 539, 58 Am. Rep. 638, we said that the accused could only discharge himself from responsibility by proving that his. intellect was so disordered that he did not know the nature and quality of the act he was doing, and that it was an act which he ought not to do. The same language appears in Parker v. State, 91 Tex. Cr. R. 68, 238 S. W. 917.

Applying what we have said in these cases to the case at bar, we observe that the accused could only absolve himself from responsibility by showing that, at the very time he killed his wife, he did not know the nature and quality of such act or that it was 'one he ought not to do. Prom the opinions of this court, generally, it is observed that we hold that one who is at times sane and at others insane will be presumed to have acted in the particular case in a moment of sanity, if there be no' proof to the contrary. Many cases may be cited in which the proof supporting the theory of insanity was stronger than in the instant case in which the court declined to submit the issue, and his action was upheld by this court. Kirby v. State, 49 Tex. Cr. R. 517, 93 S. W. 1030; Cross v. State (Tex. Cr. App.) 101 S. W. 213; Griffith v. State, 47 Tex. Cr. R. 64, 78 S. W. 347; Mitchell v. State, 52 Tex. Cr. R. 37, 106 S. W. 124. These things are said in view of our refusal to consider appellant’s exceptions to the charge on insanity. In our opinion the charge given on insanity, while involving a seeming contradiction in some of its expressions, was not misleading to the jury and could not have resulted in any injury to the rights of the appellant. Appellant killed' his wife and fled, and was subsequently arrested at some distance away from his home. There are no mitigating facts and circumstances, and the jury seems to have been justified in the infliction of the extreme penalty of the law.

Finding no error in the record, the judgment will be affirmed. 
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