
    TAYLOR v. STATE.
    (No. 4771.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.
    Rehearing Denied Feb. 16, 1921.)
    1. Criminal law @=>311 — Defendant presumed sane.
    The law presumes that accused was sane at the time he committed the offense, and dpes not require the state to prove his sanity.
    2. Criminal law @=3814(10) — Insanity at time of offense not submitted in absence of evidence.
    Where defendant pleaded guilty to assault with intent to murder, and no evidence was introduced at the hearing for assessment of penalty tending to show insanity at the time he committed the offense, it was not error for the trial court to refuse to submit that issue, though accused had some time subsequent to his plea of guilty filed with the clerk a written plea of insanity.
    On Motion for Rehearing.
    3. Criminal law @=>957(5) — Juror’s affidavit as to consideration of defendant’s failure to testify held not to require new trial.
    Where defendant had pleaded guilty to assault with intent to murder, thereby admitting all facts necessary to the conclusion of his guilt, an affidavit by a juror that seVeral of the jurors during deliberation referred to defendant’s failure to testify, but not showing that such failure was considered a circumstance against him, does not require the granting of a new trial for misconduct of the jury.
    4. Criminal law @=>595(1) — Continuance after plea of guilty not necessary for absent testimony as to> guilt.
    Under Code Or. Proc. 1911, art. 566, requiring a jury to be impaneled in felony cases on plea of guilty if the punishment is not absolutely fixed to assess the punishment and requiring evidence to enable them to decide thereupon, defendant, who pleaded guilty to charge of assault with intent to kill, cannot complain of 'the refusal of a continuance because of the absence of a witness whose testimony could not affect the punishment, but was admissible solely on the issue of guilt.
    5. Criminal law @=>614(1) — Testimony must be material and not otherwise obtainable to entitle to second continuance.
    On a second application by accused for continuance, the affidavit must, in addition to setting out the facts to which the absent witness would testify if present, show that such testimony was both admissible and material, and that it could not be procured from any other source known to defendant.
    6. Criminal law @=>465, 595(10) — Nonexpert cannot state conclusion of insanity without facts; continuance to obtain opinion evidence held properly denied.
    A witness who was not an expert could not state her conclusion as to defendant’s insanity without first giving the facts on which the opinion was based, so that an affidavit for continuance because of the absence of such witness which merely stated she would testify accused was insane was insufficient.
    7. Criminal law @=>614(2) — Second continuance not granted to obtain testimony of absent witness obtainable from other witnesses.
    Where defendant made a second application for continuance because of the absence of his sister, who would testify he was insane, but at the trial he introduced two brothers-in-law with whom he was associated before the offense more closely than with the absent sister, and neither was asked any questions tending to show the insanity of defendant, there was no'showing that the evidence could not have been obtained from sources other than the absent witness, so that the denial of continuance was not shown to be erroneous.
    8. Criminal law @=>597(1) — Testimony of absent witness held not probably true.
    Where witnesses who had better opportunities for knowing defendant than the absent witness and were friendly to defendant testified, but were not questioned as to his sanity, the denial of a continuance for the absence of the witness can be sustained on the ground that it .was not shown that, if present, she would testify that defendant was insane, or that, if she did so testify, her testimony would be probably true.
    9. Criminal law @=>981(2) — Sanity of defendant when pleading guilty is for court.
    Under Code Or. Proc. 1911, art. 565, requiring court before accepting plea of guilty to felony to find, among other things, that accused is sane, the question of sanity, when such plea is offered, is solely for the court, and relates only to the mental condition when accused makes his plea, and not to such condition when the offense was committed.
    10. Criminal law @=>995(2) — Judgment held to show court’s determination- defendant pleading guilty was sane.
    The judgment reciting that defendant pleaded guilty and thereupon was admonished by the court of the consequences, but persisted in the plea, and, it plainly appearing that defendant is sane, the plea was accepted, sufficiently shows the court’s finding that defendant was sane.
    11. Criminal law @=>270 — Plea of insanity is inconsistent with plea of guilty.
    A written plea filed by defendant’s attorneys alleging insanity is inconsistent with defendant’s plea of guilty, and is not authorized by Code Cr. Proc. 1911, arts. 569 and .572, setting out the pleas available to defendant, or by article 581, requiring a plea of guilty to be made by defendant in person, so that the court could not accept the plea of guilty and at the same time accept the plea that accused was insane when -he committed the offense.
    12. Criminal law t&wkey;l 144(18) — Evidence not in record presumed to support overruling of motion for new trial.
    Where the statement in the motion for new trial that defendant had filed a plea of insanity was traversed as authorized by Vernon’s Ann. Code Or. Proc. 1916, art. 841, and the record recited that the court heard evidence on the issue, but such evidence was not brought up on: appeal, it must be presujned that the evidence supported the denial of the motion.
    13. Criminal law <&wkey;274 — Plea of guilty should be withdrawn when evidence shows insanity.
    Whore, after plea of guilty, it appears at the hearing to assess the punishment that defendant was insane when he committed the offense or that for any other reason he was not guilty, the court should permit the withdrawal of the plea of guilty and enter a plea of not guilty.
    14. Criminal law &wkey;>l 186(1) —Judgment on plea of guilty reversed if withdrawal was refused.
    A judgment on a plea of guilty would be reversed on appeal if it was brought to the attention of the appellate court that the evidence at the hearing to assess the punishment showed insanity, but that leave to withdraw the plea of guilty was refused.
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    R. L. Taylor was convicted of assault with intent to MU his wife, and he appeals.
    Affirmed.
    E. T. Brooks and Jas. P. Stinson, both of Abilene, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDEÍtGAST, J.

Appellant was convicted of an assault with intent to kill his wife, and his punishment assessed at six years in the penitentiary.

Appellant and his wife had been married for about four years. Early in' March, 1917, she left and quit him, it seems, the second time. She swore that he cursed and abused her and threatened to kill her and told her that “she wasn’t decent enough for white folks to live with,” which was the immediate cause of her quitting and leaving him. She went to her mother’s. Appellant blamed her mother and her brother, with whom her mother lived, for her quitting him. He sought to have an interview with her to try to induce her to return and live with him, and had one of his brotliers-in-law to see her for that purpose. She not only declined to return to him, but also declined to see him and talk the matter over with him. When this was reported to him he said, “She will be damned sorry of it” He ma.de threats against her kinsfolk, and, it seems, especially against her mother and one of her brothers.

The uncontradicted testimony shows that on March 26, 1917, he armed himself with a double-barreled shotgun, waited until in the night, and slipped up to a window of the house where his wife was sitting and attempted to assassinate her. He shot her through the window, malting what the doctor says was a very “extensive, ragged gunshot wound” and place large enough to almost put the hand into it in her side and back. Her brother then went out of the house to try to catch him and run him off and prevent him shooting his sister again. He thereupon shot at her brother twice and then ran off and made his escape from her brother, but was found later that night and arrested.

He was indicted May 29, 1917. The cause was set for trial on June 13th. On that date, on his application, the case was continued until June 20th. On June 20th, when the case was again called for trial, he filed a second application for a continuance, which was overruled. The jury was thereupon duly selected and sworn, and he was then duly arraigned. When called upon to plead, he pleaded guilty. The court fully complied with the statute regulating that subject. Code Cr. Proc. arts. 565, 566. The judgment of the court states that, when the defendant in person pleaded guilty—

“thereupon the said defendant was admonished by the court of the consequences of said plea, and the said defendant persisted in pleading guilty; and it plainly appearing to the court that the said defendant is sane, and that he is uninfluenced in making said plea by any consideration of fear, or by any persuasion, or delusive hope of pardon prompting him to confess his guilt, the said plea of guilty is by the court received and here now entered of record upon the minutes of the court as the plea herein of said defendant.”

And thereupon' the trial proceeded before a jury with the result as stated.

The record shows that at some time after this his attorneys filed a written plea which says:

“Now comes the defendant R. L. Taylor by his attorneys and files in this behalf his plea of guilty herein, and in this connection further pleads that at the time of the commission of said offense the said defendant R. t. Taylor was insane and was not mentally capable of knowing the nature and quality of the acts committed by him.”

This is not signed by appellant, but signed by his attorneys alone.

The record further shows that said written plea was not called to the attention of the court nor to that of the state’s attorney, and neither the court nor the state’s attorney knew that said written plea had been filed, and that it was never presented or called to the attention of the jury.

It will be noted that even this plea filed in this way by his attorneys made no claim or intimation that he was then insane, but solely it claimed that he was insane on March 26th, when he shot and attempted and intended to kill his wife — quite a different thing.

Appellant contends that because of the filing of said written plea by his attorneys that shifted the burden of proof from him to the state to show he was insane at the time he shot and tried to kill his wife, and, as the state did not affirmatively prove that he was sane at that time, that he was entitled to an acquittal, and, because the court refused to grant him a new trial on that ground, that he is entitled to a reversal. Of course, if he had been insane at the time he shot his wife and had proved it to the satisfaction of the jury on the trial, then in law he would not have been guilty of assault with intent to kill his wife, and would have been entitled to an acquittal, but the record shows that he introduced no proof whatever to establish his insanity at that time or at any other time.

It is so well settled by the very many decisions of this court that, when an accused seeks an acquittal because of insanity at the time he committed the offense, the law pre-, sumes he was sane and imposes upon him the burden of showing that -he was insane, and does not require the state to prove under any such circumstances that he was- sane, that it is unnecessary to cite these decisions.

This is quite a different thing from that presented to the judge when an accused, arraigned- for trial, wants to plead guilty. When that question is presented to the trial judge, the law requires him to then and there satisfy himself that the accused is then sane and requires him to admonish the accused of the consequences of his plea of guilty and prohibits him from accepting such plea unless it plainly appears to him, the judge, that he is then sane, and that he is uninfluenced in making such plea by any consideration of fear, or by any persuasion or delusive hope of pardon prompting him to confess his guilt. As shown, all this was thoroughly and completely done before the judge would receive the plea. Such matter is not to be, under any circumstances, submitted to the jury for it to determine these questions, but to the judge solely. No issue is made which a jury could try until either a plea of not guilty or a plea of guilty is made by the accused and entered by the court.

In Coleman v. State, 35 Tex. Cr. R. 406, 33 S. W. 1083, in discussing when an accused attempts to plead guilty the court must warn him, etc., and be satisfied that he is sane, through Judge Davidson, this court held:

“In our opinion, however, this is a matter which must be presented to the court, and the court must make its findings thereon, and this must be entered of record in connection with the plea of guilty. These prerequisites to the validity of the plea and the acceptance thereof-by the court are indispensable, and must be made manifest of record. They cannot be supplied by inference, intendment, or presumption. See Code Crim. Proc. arts. 518, 519, 538; Saunders v. State, 10 Tex. Crim. App. 336; Wallace v. State, Id. 407; Frosh v. State, 11 Tex. Crim. App. 280; Sanders v. State, 18 Tex. Crim. App. 372.”

In this case, as shown, all these matters were expressly found and entered of record by the judge, in the judgment of the court quoted above.

In Burton v. State, 33 Tex. Cr. R. 138, 25 S. W. 782, appellant thereunder -was indicted for murder, convicted of murder in the second degree, and his punishment assessed at 25 years in the penitentiary. In that case it was shown that appellant had agreed with the district attorney to plead guilty of murder in the second degree on condition that the state would introduce no evidence other than that of the sheriff. When this was called to the attention of the court, the, court refused to permit the plea under such conditions, but stated he would admit the plea of guilty to the charge- of murder, and that the jury should determine whether it was first or second degree and the punishment to be inflicted. The judgment was attacked by affidavits to the effect that the defendant therein was of weak mind and scarcely responsible for his acts, and by the affidavit of a doctor to the effect that from an examination of defendant, as well as his personal knowledge, he believed him to be of such weak mind as to render him irresponsible for his act, and sought a new trial and reversal on that sort of showing. The trial judge therein made an affidavit to the effect that before he received the plea of guilty he explained the result of such plea to him and properly admonished him and satisfied himself from an examination of the defendant alone at the time that he was sane and was making the plea of guilty from no influence of fear or persuasion or hope of pardon. The judgment therein as to these matters was exactly the same as it is in this case. This court through Judge Davidson in that case held that the court’s action was in accordance with the statute and sustained the conviction. See, also, Miller v. State, 58 Tex. Cr. R. 600, 126 S. W. 864; Doans v. State, 36 Tex. Cr. R. 468, 37 S. W. 751; Evers v. State, 32 Tex. Cr. R. 283, 22 S. W. 1019; and other eases.

In his brief appellant states that the grounds upon which he asks a reversal are stated in his motion for new trial, and that Ms main reliance is on that motion. The state filed in writing a contest of each and every ground of said motion. One ground of the motion was that the court erred in receiving appellant’s plea of guilty and at the same time receiving his plea of insanity filed herein. In contest and denial of that ground the state specifically alleged “that, when the indictment was read, defendant’s counsel and . himself in person both stated that it was his desire to plead guilty, and that, after the coffirt had admonished defendant of his rights and of the consequences if he should enter such plea, the defendant still persisted on entering a plea of guilty, which was done in due form and as required by law,” and further “that, although the defendant, by his attorneys, thereafter filed a written plea with the clerk of this court stating that he would plead guilty and further plead that at the time of the commission of said offense the said defendant was insane, said written plea was not called to the attention of the court nor to the state’s attorneys, and that neither the court nor the state’s attorneys knew that said written plea had been filed in this cause, * * * and that same was never presented or called to the attention of the jury.”

The record and judgment of the court showed ,that when that motion for new trial was presented to him on that and all the other grounds he heard evidence thereon and after hearing the evidence overruled the motion. What evidence was heard by the court is not disclosed by. the record. And this, .court must presume, and has always presumed, that under such circumstances the evidence clearly justified and authorized the judge to so hold. The term of court at which appellant was tried adjourned July 6th. There is no statement of facts purporting to give the testimony or any of it that was heard by the court in acting on this motion for new trial,' and none anywhere in the record which shows what testimony the court heard when appellant pleaded guilty and when the court acted thereon and received said plea. The conclusions’ and findings of the court at the time he received said plea are quoted above and contained in the order and judgment of the court receiving said plea. Appellant’s bill to the overruling of his motion for new trial was not filed in the court below until August 29th, nearly two months after the court had adjourned. Reyes v. State, 81 Tex. Cr. R. 688, 196 S. W. 533, where a great number of other cases are collated.

One ground of the motion for new trial, and this is shown by a bill also, was the action of the court in overruling his application for a continuance and is complained of. •

The allegations of appellant seeking a continuance were to' the effect that two days- ■ after the indictment was filed he procured a : subpoena for his sister, Mrs. John Goff, and 'her husband, John Goff, who lived in Sweet-water, in Nolan county, requiring them to appear as witnesses at Anson, in Jones county (where the case was to be tried), on June 4, 1917, and that subpoena was properly served on said two witnesses on June 2d. Whether either or both of them then attended the court in obedience to that subpoena is not shown. Presumably they did not. No other subpoena was issued or served upon her to appear at any other time, nor is it averred that she was even notified to appear at any other time. In his second application for a continuance on account of the absence of his sister, Mrs. Goff, who, he alleged, was sick, he alleged that he expected to prove by her in substance that she was reared with him and had occasion to observe his mental condition from his childhood up, and that up to about a year before the time he shot his wife, his mind appeared to be good and he appeared to be sane; that since said time, and just only a day or two before he shot his wife,-she had-occasion to observe him, and he appeared at that time to be insane, and his mental condition in an unusually disturbed condition, which condition had existed several months previous to that occasion; that that occasion when she saw him was when he was on a visit to her in her home in Nolan county. In the state’s contest of this ground of appellant’s motion and his said second application for a continuance the state contended that the court’s action was correct because the facts are not set out in the application to what the witness, his sister, Mrs. Goff, would have testified, it being stated, in substance, only that she would testify that defendant at the time appeared to be insane, etc.that this testimony .by her would not have been admissible because it is not 'set out in said motion any acts, conduct, or conversations of the defendant which were known to the witness which would give her the right to testify to her conclusions as stated in said motion. Burton v. State, 33 Tex. Cr. R. 138, 25 S. W. 782.

The case was tried on June 20th. The amended motion for new trial was not filed until July 3d. It was heard by the judge on July 5th. No affidavit whatever by said witness is attached or made a part of the said motion or the record in any way that Mrs. Goff would even have testified what it is alleged she would in the way of her conclusions, nor is there any affidavit whatever from her detailing any of the acts, conduct, or conversations of the appellant which would authorize her to express any opinion as to his insanity. Besides tMs, the statement of facts shows that many witnesses testified who had known him, some of them all of his life, others for many years, none of them for less than several years. Appellant did not attempt to make any proof by any of these witnesses that he was ever insane at any time or place. The whole of their testimony, where it bore on the subject at all, would show that he was sane and not insane. Nor did appellant attempt to introduce on the trial any other witness or witnesses to testify to his claimed insanity at any time.. The record further indicates that his sister, Mrs. Goff, had no opportunity, or the slightest, if any, to see or be with him so as to testify at all that he was insane at the time he shot and attempted to kill his wife. Upon the whole, the record in no way shows reversible error because of the court’s refusal to continue the case on his second application.

Appellant tried the case on the theory that, because he had filed said written plea by his attorneys alone averring that he was insane at the time of the commission of the offense, that shifted the burden of proof from him to the state to show that he was sane when he shot his wife, and his special charges were asked and his objections to the court’s charge were predicated on that idea. As no evidence was introduced to show he was insane when he committed the offense, the court was not called upon to submit any such issue, and did not err in not submitting such an issue. This was an erroneous theory on his part, and the refusal of his charges for a peremptory instruction to acquit presents no error.

The case of Harris v. State, 76 Tex. Cr. R. 126, 172 S. W. 975, cited and relied upon by appellant, we think, is wholly inapplicable. In that case, it is true, appellant pleaded guilty, but when the case was tried he introduced much testimony tending to show, if he did not show directly, that he was insane at the time he killed deceased therein. The court therein not only declined to submit the question of his sanity at the time he killed deceased, but, on the contrary, notwithstanding all the testimony tending to show it, he peremptorily charged the jury that the appellant was sane. That was correctly held erroneous under the circumstances of that case.

The judgment is affirmed.

On Motion for Kehearing.

LATTIMOBE, J.

This case was affirmed in an original opinion by PBENDEBGAST, Judge, handed down in February, 1918, and is before the court at this time upon appellant’s motion for rehearing, setting up various grounds which will be noticed.

It is contended that the court erred in not passing on and reversing the case in its original opinion upon the ground that there was misconduct of the jury in discussing appellant’s failure to testify. The matter is set forth in the seventh ground of appellant s motion for new trial in which the affidavit of one of the jurors appears, and is made a part of the statement. Befer-enee to said affidavit discloses that it is alleged therein that while in their retirement several jurors referred to appellant’s failure to testify, and questions were asked as to why he did not do so. Appellant pleaded guilty, thereby admitting all of the facts necessary to the conclusion of his guilt. It is not shown what was said in the jury room or that any remark or statement was made which could lead this court to presume that .the failure to testify was taken by the jury as any circumstances against appellant. The juror making the affidavit said he considered the appellant insane. There was no error in overruling this ground of said motion. Coffman v. State, 73 Tex. Cr. R. 295, 165 S. W. 939; Howard v. State, 76 Tex. Cr. R. 297, 174 S. W. 607; Rhodes v. State, 69 Tex. Cr. R. 45, 153 S. W. 128; Cooper v. State, 72 Tex. Cr. R. 266, 162 S. W. 364.

It is also insisted that the former opinion of this court was erroneous in holding that the trial court properly overruled appellant’s application for a continuance. Our statutes (article 566, C. C. P.) require that in all felony cases upon plea of guilty, if the punishment is not absolutely fixed and beyond the discretion of a jury to graduate, a jury shall be impaneled “to assess the punishment, and evidence submitted to enable them to decide thereupon.” The purpose of the absent testimony as set forth in said application not being to affect the punishment, but being admissible, if at all, solely on the issue of lack of guilt, the appellant is in no position to complain of the overruling of the application for a continuance. Also this was a second application, and in addition to setting out the facts to which the absent witness would testify, if present, same must appear to be both admissible and material. It must further be shown that such testimony cannot be procured from any other source known to the appellant. Following is the testimony expected from said absent witness, as set out in the application:

“That she is a sister of the defendant, B. D. Taylor; that she was reared with him, and has had occasion to observe the mental condition of the defendant from his childhood up, and that up to about something like 12 months ago that the defendant’s mind appeared to be good, in other words, he appeared to be sane; that since said time she has had'frequent occasions to observe the defendant, and will testify that she had occasion to observe him only a day or two before the commission of the offense charged in the indictment, and that he appeared at that time to be insane, and his mental condition in an unusual disturbed condition; that said condition had existed for several months previous to that occasion; and that on said occasion defendant was at her house and visited her home in Nolan county, Tex., at which time she observed the condition of the mind of the defendant as hereinbefore stated.”

Por the purpose of this opinion we notice only that part of the statement relating to appellant’s condition for some months prior to the alleged killing. It is stated in said application that the absent witness had occasion to observe appellant a day or two before the commission of the offense, and that “he appeared at that time to be insane, and his mental condition in an unusual disturbed condition, and that said condition had existed for several months previous to that occasion”; said occasion being a visit made by appellant to the home of the witness in Nolan county, Tex. No facts are set out in the application to which the absent witness, if present, would testify. The statement that she would testify “that he appeared to be insane and his mental condition disturbed” is but a conclusion. The absent witness was appellant’s sister and was non-expert. As said by Judge Henderson in the Davis Case, 69 S. W. 73:

“These were nonexpert witnesses. They were not authorized to give an opinion until they stated the facts upon which they predicated an opinion, and such facts should have been stated in this application.”

And this court held in that case that the application was properly overruled. The same ruling is adhered to in all the decisions. Shirley v. State, 37 Tex. Cr. R. 478, 36 S. W. 267; De Lucenay v. State, 68 S. W. 798; Harrison v. State, 44 Tex. Cr. R. 164, 69 S. W. 500; Wilson v. State, 45 Tex. Cr. R. 61, 73 S. W. 964.

Again, could the absent testimony have been obtained from any other source? Said testimony was to the effect that said sister saw appellant a day or two before the shooting, and that said condition had existed for several months. The shooting was on March 26th. Hiram Waller was a witness, and was appellant’s brother-in-law, living with his wife, who was appellant’s sister, in the county where the trial was had. He swore that appellant was staying at his home when the offense was committed. No question was asked this witness as to appellant’s insanity or mental condition, either at the time of the commission of the offense or prior thereto. Mrs. Walker, appellant’s sister, and wife of said witness, was not called by the appellant to the witness stand. These relatives were with appellant after the alleged visit of appellant to Mrs. Goff’s, the absent sister, and up to the time he started to the place where he shot his wife. Thell Browning, another brother-in-law of appellant, was a witness on the trial and swore that for four or five days before appellant came to Jones county, where the shooting occurred two or three days later, appellant had been staying at witness Browning’s house in Scurry county. This witness was not asked as to any peculiar actions of appellant nor his opinion of appellant’s mental condition. This witness and many other people, apparently friendly to appellant and who knew him well and had been with him during the days and weeks preceding the shooting, all testified, and none of them were asked a question about appellant’s mental condition. If hi? mind was unbalanced or if his actions were peculiar, it would reasonably appear that some of these witnesses would have known such facts.

The trial court’s action in overruling such application would also be sustained under that other well-settled rule of this court that a motion for new trial upon the ground of error in refusing a continuance will be properly overruled if it sufficiently appear from the other testimony in the case that it is unlikely that the witness would have testified as claimed or that such testimony would not have probably been true.

Appellant excepted to the court’s charge because it did not submit the question of insanity to the jury, and asked two special charges — one a peremptory instruction for acquittal upon the ground that the state had not proved defendant sane when the crime was committed; and the other instructing acquittal unless the jury .believed beyond a reasonable doubt that defendant was sane when the offense was committed, and that the burden of proof was on the state to prove the defendant’s sanity at such time. Both charges were refused. Appellant’s exceptions Nos. 3, 4, and 5 complained of the court’s refusal to submit these two special charges and the issue of insanity to the jury. There was not a particle of evidence before the trial court that appellant was insane when the crime was committed, and it is difficult, in view of this fact, to see just why the trial court should have submitted the issue of insanity ; and we can see no reason at all why he should have given any instruction to acquit because the state had not proven appellant sane when the crime was committed.

Inquiry as to the insanity of one accused of crime may be made in a proper case and manner at any time, but our statutes only make it necessary that in a plea of guilty it must plainly appear to the court that the accused is sane and not influenced, etc. See article 565, G. O. P. The question of sanity, when such plea of guilty is offered, is for the court and relates solely to the mental condition of the accused when making his plea, and not to such condition when the offense was committed. The act of pleading guilty to the commission of a crime, a felony which involves disgrace and heavy penalties, is so against his interest that it pleased the merciful framers of our laws to assume that a man would not do so in his right mind, and when free from hostile influences. So that the inquiry in such case is confined “to the time of the plea and is only for the court. Hence it has always been held necessary that the judgment in such case should affirmatively show that the trial court had passed on this question and found the accused sane, as a prerequisite to accepting such plea. Sanders v. State, 18 Tex. App. 372; Saunders v. State, 10 Tex. App. 336; Wallace v. State, 10 Tex. App. 407; Frosh v. State, 11 Tex. App. 280; Harris v. State, 17 Tex. App. 559; Burton v. State, 33 Tex. Cr. R. 138, 25 S. W. 782; Coleman v. State, 35 Tex. Cr. R. 404, 33 S. W. 1083. Judge Davidson in the Burton Case, supra, says that sanity “was necessarily an issue for the court under such plea.” In the Coleman Case, supra, Judge Davidson says, referring to the question. of insanity in connection with a plea of guilty:

“In our opinion, however, this is a matter which must be presented to the court, and the court must make its findings thereon, and this must be entered of record in connection with the plea of guilty. These prerequisites to the validity of the plea, and the acceptance thereof by the court, are indispensable, and must be made manifest of record.”

The judgment of the trial court in the instant case is in exact accord with these decisions and what we conceive to he the law. Same is as follows:

“The State of Texas v. R. L. Taylor. No. 1613. Charge, Assault with Intent to Murder. Date, June 20th Day of June, 1917.
“This day this cause was called for trial, and the state appeared by her district attorney, and the defendant, R. L. Taylor, appeared in person, his counsel also being present- *(and the said defendant having made application in due form for suspension of the sentence on his conviction herein), and having been arraigned in open court, both parties announced ready for trial, and the defendant, R. L. Taylor, in open court, in person, pleaded guilty to the charge contained in the indictment, thereupon the said defendant was admonished by the court of the consequences of said plea, and the said defendant persisted in pleading guilty; and it plainly appearing to the court that the said defendant is sane, and that he is uninfluenced in making said plea by any consideration of fear, or by any persuasion, or delusive hope of pardon prompting him to confess his guilt, the said plea of guilty is by the court received and here now entered of record upon the minutes of the court as the plea herein of said defendant.”

Which, portion of the judgment is followed by the usual recitals as to the impaneling of the jury, hearing of the evidence, etc.

It being beyond question that there was no evidence before the trial court' of insanity at the time the offense was committed, and that the judgment as quoted is in accord with the law and recites the sanity of appellant at the time of making the said plea, it follows there was no error in the refusal of the court to give the special charges and in refusing to submit the issue of insanity because there was a written plea ‘of insanity on file at the time of trial setting up such issue. An inspection of the record shows that a written plea signed by appellant’s attorneys was filed, which is as follows:

“Now comes the defendant, R. L. Taylor, by his attorneys, and files in this behalf his plea of guilty herein, and in this connection further pleads that at the- time of the commission of said offense the said R. L. Taylor was insane and was not mentally capable of knowing the nature and quality of the act committed by him.”

We observe that every plea available to. a defendant under our statutes and practice is set out in articles 569 and 572, C. O. P., and we nowhere find place or authority for a written plea of guilty signed only by the attorneys for defendant. It is provided by article 581, C. O. P., as follows:

“A plea of guilty in a felony case must be made in -open court, and by the defendant in person.”

We observe here that the judgment supra recites that this statute was followed. If the written plea mentioned was intended to call the trial court’s attention to the fact that it was his duty to assure himself of the sanity of appellant at the time of making his plea, its purpose was served, and that fact determined, as appears from said judgment, and there is no room for further complaint on this ground. However, it- appears from the reading of such plea that such was not its purpose, as it states that appellant was insane at the time of the commission of the offense, so that it is clear that in no way did appellant claim to be insane at the time of making his plea, and we hold that in no case 'can the trial court accept a plea of guilty and at the same time accept a plea that the accused was insane at the time the offense was committed.

In appellant’s motion for new trial he insists that the trial court erred in receiving such plea of guilty when there was also presented a plea of insanity. Upon this question there arose a question of fact, the district attorney having filed a statutory traverse of the matters contained in said motion for new trial, specifically denying that said written plea was brought to the attention of the court or jury or himself as the representative of the state, and further setting up that appellant’s plea was in person, in open court, etc. Article 841, Vernon’s C. O. P., authorizes such traverse of -the grounds of a motion for new trial. See, also, Wilson’s Crim. Forms, p. 960; Pickett v. State, 56 Tex. Cr. R. 68, 118 S. W. 1039; Dougherty v. State, 59 Tex. Cr. R. 474, 128 S. W. 398. In such case the court may hear evidence for or against and enter his judgment, and, in the absence of a showing that such judgment was not supported, this court will assume the correctness of the lower court’s judgment and uphold his 'action.' Upon the hearing of said motion and traverse in the instant case the trial court overruled the motion, and, nothing appearing from the record to show error in the court’s action, we are compelled to uphold same.

It is urgently insisted that the case of Harris v. State, 76 Tex. Cr. R. 126, 172 S. W. 975, is opposed to the holding herein announced. With certain statements in the Harris Case we reluctantly'disagree and regret that the same may have led to some confusion, but with the spirit of that decision we are in hearty accord. It is undisputed ■that much evidence was introduced in said case showing insanity, even though there was a plea of guilty, and this court held that, under our statute requiring facts to be produced upon a plea of guilty, if the issue of insanity be suggested in such case, evidence on this issue should go in with the other facts of the case to be decided by the jury. This is fundamentally unsound and would necessarily and inevitably cause much confusion in practice. It is unsound in that it would lead to the engrafting on our system of trials of a practice in which both pleas of guilty and not guilty would be permitted by the court and passed upon by the jury at one and the same time, for a plea of insanity is as surely a plea of not guilty as can be; the saying that one was insane when he acted being the legal equivalent to saying he was not criminally guilty. This court refused to let the verdict stand in the Harris Case on the ground that the evidence introduced showed -Harris to be insane when the crime was committed. We are of opinion that in such case the correct procedure should have been that it would at once become the' duty of the trial court, upon a hearing under the. plea of guilty, if the evidence introduced showed insanity, to have the plea of guilty withdrawn and a plea of not guilty entered upon behalf of the accused and the issues fully and legally determined thereafter, and our opinion is that the Harris Case should have been reversed and remanded for the failure of the trial court to so proceed.

We are also of opinion that, if the evidence so introduced to enable the jury to fix the punishment pertinently suggested insanity at the time of the commission of the offense, this court would reverse if opportunity was refused appellant to withdraw his plea of guilty and have all the issues passed upon by the jury. It was correctly held in the Alexander Case, 69 Tex. Cr. R. 23, 152 S. W. 436, that at any time before the retirement of the jury a plea of guilty might be withdrawn and the case tried on a plea of not guilty, and such course should be followed when the evidence offered to enable the jury to fix the punishment shows a state of case under which, if true, the accused would not be guilty of any crime.

The impartial attitude of the court and the integrity of our practice would forbid the conviction of one not legally guilty or responsible, and, if the evidence adduced on á plea of guilty raised the issue of the present- insanity of an accused, the trial should be halted until the court could legally have that issue settled; and likewise and for the same beneficent reason, if such evidence presented the issue of his insanity at the time of the alleged commission of the crime, the case should be allowed to proceed no further until a plea of not guilty he entered and the plea of guilty withdrawn so that the issue of insanity could be placed before the jury in accordance with law, with proper practice and the holdings of this court. In so far as the Harris Case is in conflict with these views we cannot follow it, though agreeing to the correctness of the reversal therein. In the instant case there was no evidence adduced on the trial showing insanity, either at the time of trial or when the offense was committed ;• consequently there was no possible invocation of the doctrine of the Harris Case, if correct.

No error appearing in the former opinion of this court, the motion for rehearing is overruled.

MORROW, J.

(concurring). I regard the written plea as necessarily one of not guilty. If it embodies the appellant’s plea, the case should be reversed, because, manifestly, there could be no trial upon both a plea of guilty and a plea of not guilty. If the record showed alfirmatively that the written plea, which is copied in the opinion, was called to the attention of the trial court before the verdict was rendered, I would regard a reversal as necessary, but the bill of exceptions, in which there is a reference to the written plea, does not by any certificate of the court, or by any direct statement of the bill, state that the written plea was ijresented to the court at any time during the trial. The contest and motion for new trial insists that it was so presented; and the finding of the court upon the issue of the facts presented in the motion for a new trial, and the contest having been determined by the court against the appellant, in the absence of the evidence before us, we are not in position to review his ruling. From this statement it appears that the only plea before the court at the time of the trial was a plea of guilty, entered by the appellant, and that at that time, as shown by the judgment of the trial judge, in accordance with the statute, he inquired into the sanity of the appellant and determined that he was sane, as a predicate to accepting the plea. There was no evidence introduced upon the trial raising the question as to his sanity, and under the piea of guilty, which the court could receive only on the theory that he had determined appellant sane, there was, under the circumstances, no issue of sanity to he submitted to the jury. With this statement, I concur in the judgment that the motion of appellant be overruled. 
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