
    FRANCKS v. STATE.
    (No. 11378.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    Rehearing Denied April 25, 1928.
    1. Insane persons ¡@=326 — Unconstitutionality of law authorizing trial of one accused of lunacy by doctors rendered lunacy judgments of doctors’ commissions invalid.
    Lunacy judgments of lunacy commissions composed of doctors held invalid as result of adjudication of unconstitutionality of law authorizing trial of one accused of lunacy by commission of doctors.
    2. Insane persons ¡@=26 — Memorandum on lunacy judgment, showing defendant’s release upon doctor’s recommendation, did not prove judgment’s vacation or annulment.
    Memorandum attached to judgment showing release of defendant upon doctor’s recommendation did not sufficiently show vacation or annulment of judgment of defendant’s lunacy, in prosecution for murder.
    3. Homicide ¡@=151(2) — Insane persons ¡@=26 —Proof of custom to enter judgments against drug addicts for purpose of treating them held inadmissible to impeach judgments of lunacy or to relieve state from burden to prove defendant’s sanity in murder prosecution.
    In prosecution for murder, in which defense was insanity, proof of custom of county court to enter judgments against drug addicts who needed treatment, for purpose of confining them so that they might be treated, held inadmissible to impeach judgments decreeing defendant insane or to relieve state from its responsibility of assuming burden to prove sanity, where defendant was shown to have been adjudged insane prior to commission of alleged offense.
    4. Homicide ¡@=151 (2) — State, in murder prosecution, had burden to prove beyond reasonable doubt sanity of defendant against whom lunacy judgments had been entered.
    In prosecution for murder, in which defendant interposed defense of insanity and introduced judgments of lunacy entered against him prior to commission of crime, burden was upon state to show sanity of defendant beyond a reasonable doubt, and failure of court to so instruct was error.
    On Motion for Rehearing.
    5.Criminal law ¡@=1109(1) — Record is liberally considered on appeal to permit decision upon merits, where death penalty has been assessed.
    Liberal consideration of record is favored on appeal in order to reach decision upon merits in criminal cases where death penalty has been assessed, especially where matters prejudicial to accused are shown from the entire record.
    Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
    Clifford Francks was convicted of murder, and he appeals.
    Reversed and remanded.
    John T. Wheeler, of Galveston, for appellant.
    A. A. Dawson, .State’s Atty:, of Austin, for •the State.
   LATTIMORE, J.

Conviction of murder; punishment, death.

The undisputed testimony in this case shows that appellant shot his wife and killed her at or about the time alleged in the indictment. They had separated, and she was at the home of her sister. He went there, and, being unable to induce her to accompany him away, shot her. The only defense interposed was that of insanity. Practically all the witnesses on this issue testified that for many years appellant had been a drug addict, and four judgments of lunacy against him in the records of the county court of Harris county were introduced by the defense. Two of these judgments were in 1915, and must pass out of consideration in'this ease because of the fact that they were rendered by lunacy commissions each composed of a group of doctors. The judgments of such commissions become invalid by reason of the uneonstitu-tionality of the law authorizing a trial of one accused of lunacy by a commission of doctors, as held by the Supreme Court of this state in White v. White, 108 Tex. 570, 196 S. W. 508, L. R. A. 1918A, 339, which was approved by this court in Barton v. State, 89 Tex. Cr. R. 387, 230 S. W. 989. As far as we are able to tell from the record, the judgments of lunacy entered against the accused in 1920 and 1921 remain unvacated and in nowise set aside to this day Certified copy of the judgment of 1921 bears upon it a memorandum showing that appellant was released upon the recommendation of Dr. York, but we do not believe this sufficient evidence that a judgment- of the court; had been vacated or annulled.

There is a bill of exceptions complaining of the fact that upon this trial, over the objection of the appellant, the learned trial judge permitted the state to show by various and sundry witnesses that it was the custom of the county court of Harris county to enter judgments against drug addicts who needed treatment, for the purpose of confining them so that they might be treated for such habits. The bill certifies that this was the purpose for which the testimony was introduced. We are of the opinion that the solemn judgment of a court cannot be impeached or attached or in anywise vacated or annulled by proof of such custom. We have no desire to criticize the humane officials of Harris county for doing anything they can to relieve the suffering of drug addicts, and their action in entering such judgments for the purpose mentioned is not before us for review, other than to hold that testimony, of the character objected to was not admissible in this case for the purpose of relieving the state from its responsibility of assuming the burden of proof on the issue of insanity in a case of one who interposes that defense, who is shown by the-testimony to have been adjudged insane at a time prior to the commission of the alleged offense. In the case before us, the court charged the jury, as in ordinary cases where insanity is interposed as a defense, that the burden of proving such defense rests upon the accused. This was manifestly erroneous under all the authorities in this state. Witty v. State, 69 Tes. Cr. R. 125, 153 S. W. 1146; Morse v. State, 68 Tex. Cr. R. 352, 152 S. W. 927.

There appears in the record a special charge requested by the appellant and refused by the trial court, to which action an exception was taken, in which special charge the court was asked to instruct the jury that the burden was upon the state to prove appellant’s sanity beyond a reasonable doubt. There are inapt expressions in the charge, and the form'of it is not commended, but unquestionably under the facts of this case the court should have responded to the request and instructed the jury that the burden was upon the state to show the sanity of the accused beyond a reasonable doubt, in view of the fact that he had been adjudged insane at a prior time. We are. unable to believe the failure of the court to properly instruct on the burden of proof, to be other than an error of possible grave injury to the accused. We will not speculate. He was given the death penalty.

Believing the court erred in refusing to give the charge containing the principle announced, and in admitting testimony the effect of which was to reflect upon the sanctity of the judgment of a court of competent jurisdiction,- the judgment will be reversed, and the cause remanded.

On Motion for Rehearing.

HAWKINS, J.

.15] In a motion for rehearing filed by the state, our attention is called to, some informality in preserving exception to refusal of the special charge adverted to in our former opinion, and also suggesting that the bill of exception complaining of the admission of testimony was not filed within the time specified in the court’s order. This court has operated under a rule which favors a liberal consideration of the record in order to reach a decision upon the merits in a case in w-hich the death penalty has been assessed, and especially is this true when from the entire record matters are revealed which in all likelihood worked to the injury of accused. Collins v. State, 95 Tex. Cr. R. 405, 254 S. W. 805.

Believing our original opinion to be a correct disposition of the case upon the question therein discussed, the motion for rehearing is overruled. 
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