
    WOODS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1912.)
    1. Indictment and Information (§ 159)— Use of Improper Name — Change by Court on Motion.
    Under the express terms of Code Cr. Proc. 1911, art. 560, which provides for the correction of the indictment and record in a criminal prosecution upon a suggestion by the defendant or his counsel that the name charged in the indictment is not the same as that which he bears, where a defendant filed a written motion showing that the name appearing in the indictment was different from what his name actually was, the court properly granted his motion, and ordered the record changed.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. § 159.]
    2. Arson (§ IS) — Indictment—Sufficiency.
    An indictment charging that a person on or about a certain date did then and there unlawfully, willfully, and maliciously and with intent and by means calculated to effect the object attempt to set fire to and burn a certain house situated in Johnson county, to wit, that he did then and there unlawfully, willfully, and maliciously pour a quantity of kerosene oil, a highly inflammable and combustible liquid, upon the floor and billiard and pool tables in such house and set fire to it, with intent to burn the house, sufficiently charges attempted arson.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§, 30, 32, 34-37; Dec. Dig. ■§ 18.]
    3. Criminal Daw (§ 614) — Trial—Continuance.
    A second application for a continuance in a criminal cause, on the ground of the absence from the state of the defendant’s wife, who would establish an alibi for the defendant, was properly refused, where, after the granting of the first continuance, the defendant had no process issued or served for her attendance, made no explanation of her absence or as to her motive therefor, and did not state whether or not she was permanently absent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.]
    4. Criminal Law (§ 48)— Crimes — Responsibility.
    Where an alleged criminal act was committed at a time when the accused labored under such a defect of reason, either temporarily or permanently, as not to know the nature and quality of the particular act, or if he did know it that he did not know he was doing wrong, he is not responsible therefor in a criminal prosecution, but, if his mind was simply weak or impaired rather than’ insane, it is no defense.
    [Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. §§ 53-58; Dec. Dig. § 48.]
    5. Criminal Law (§ 1172) — Instructions— Weight of Evidence —When Constituting Reversible Error.
    Under Code Cr. Proc. 1911, art. 743, providing that a judgment in a criminal prosecution shall not be reversed for a charge on the weight of the evidence unless the error was calculated to injure the defendant’s rights, a charge that correctly stated the law as to the defense of insanity, and concluded, “You are further instructed that the fact that the defendant’s mind was simply weak or impaired and that he was not insane as above defined would be no defense,” would not constitute reversible error because of the fact that the latter part of the charge was on the weight of the evidence, since the error was in favor of, and not against, the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3163, 3169; Dec. Dig. §, 1172.]
    6.Criminal Law (§ 570) — Insanity as Defense-Evidence.
    In a prosecution for attempted arson evidence held to justify a finding that the defendant was sane.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1285-1288; Dec. Dig. § 570.]
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge.
    J. W. Woods was convicted' of an attempt at arson, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic ana section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was indicted, tried, and convicted of an attempt at arson. His penalty was fixed at two years in the penitentiary.

While the evidence was circumstantial, it was amply sufficient for the jury to find him guilty.

The appellant made a motion to quash the indictment on two grounds.

The first that it alleged his name to be “J. W. Wood,” when his name was “J. W. Woods.” The record shows that, when appellant filed a written motion showing his name was “Woods,” the court granted his motion, and ordered the record changed so as to make his name “Woods,” instead of “Wood,” in the papers. There was no error in this. The statute expressly authorized it. C. C. P. art. 560 (549).

The other ground is that the offense is not set forth in plain and intelligible words, without in any way pointing out wherein there was any defect. The indictment was in three counts. The third only was submitted to the jury for a finding. That charges that appellant on or about June 21, 1911, did then and there unlawfully, willfully, and maliciously and with intent and by means calculated to effect the object attempt to set fire to and burn the house of John W. Floore, situated in Johnson county, Tex., to wit, that he did then and there unlawfully, willfully, and maliciously pour a quantity of kerosene oil, a highly inflammable and combustible liquid, upon the floor of said house and upon the billiard and pool tables in said house, and did then and there set fire to the same, intending to burn the house. The motion to quash was properly overruled.

By another bill appellant complains of the overruling of his second application for a continuance which was made on account of the absence of his wife, who resided in Dai-las county, but was then in Roswell, N. M. By her he claimed he expected to prove an alibi. The bill shows, as explained by the court: That this was a second application for a continuance. That the case had been continued at a former term of the court, February 27, 1912, on account of the absence of his wife. This application was heard and overruled June 3, 1912. That appellant had had no process issued or served for his wife after the first continuance was granted on his application on account of her absence, the court stating that it was made known to him that she had been absent from the state for several months, and no explanation was made why she was absent, or as to her motive'in being absent or as to whether she was permanently absent or not, except the bare statement of appellant that her absence was temporary when she went, nor whether she would ever return or whether they were separated. There was no error in overruling this application for a continuance.

The only other complaint of appellant is to this part of the court’s charge: “The fact that defendant’s mind was simply weak or impaired, and that he was not insane as above defined would be no defense.” One of appellant’s defenses was insanity. The court correctly and aptly in his charge defined the offense and submitted the case to the jury, requiring them to believe beyond a reasonable doubt all of the facts alleged and proven necessary to show his guilt before they could find him guilty, and, unless they did so, they must acquit him, and, in addition, that the burden of proof was on the state, in the terms of the statute, and the reasonable •doubt as also required by the statute. The whole charge on the subject of insanity was ■as follows: “Under our law, no act done in a ■state of insanity can be punished as an offense, but every man is presumed to be of sane mind until the contrary appears, and ■on this issue the burden of proof is upon the defendant to clearly establish his insanity toy a preponderance of the evidence. The legal test is whether or not .the defendant was at the time of the alleged offense laboring under such defects of reason, either temporarily or permanently, to such an extent as to know the nature and quality of the particular act he is charged with doing, or if he did know it that he did not know that he was doing wrong, and if you find that at said time the defendant was insane, as above ■defined, then you will find the defendant not guilty. You are further instructed that the fact that defendant’s mind was simply weak •or impaired, and that he was not insane as above defined, would be no defense.”

Appellant’s only complaint of this charge is that it was assumed to the jury that defendant was of unsound mind, but not sufficient to justify him under the evidence, and was on the weight of the evidence. If it did assume that the defendant was of unsound mind to some extent and in that , respect on the weight of the evidence, it would have been in appellant’s favor and not against him; but the particular portion of the charge objected to in our opinion states a correct legal proposition to the effect that if appellant’s mind was simply weak or impaired, but that he was not insane, that would be no defense. The court, as quoted in the above charge, had correctly, to which there was no objection, told the jury that no act done in insanity could be punished as an offense; that the legal test of insanity was whether or not appellant at the time of the alleged offense was laboring under such defect of reason, either temporary or permanently, to such an extent as to know the nature and quality of the particular act with which he is charged with doing, or if he did know it that he did not know that he was doing wrong, and if he was in that condition to find him not guilty. The charge, taken as a whole, could not have misled the jury and did not do so to his injury, in our opinion. C. C. P. art. 743 (723).

The evidence in the ease showed, without dispute, that appellant continuously for many years before and up to the time the offense was charged to have been committed attended to his ordinary business correctly and properly. He was introduced as a witness in the case, and, so far as the statement of facts shows, testified as intelligently as any other ordinary witness, and told all about what occurred, so far as he was concerned, at and just prior to the alleged attempt at arson, and all about what property he had in connection therewith, and which was affected by the bum. He introduced several witnesses who had known him for different lengths of time up to the time of the fire, the effect of their testimony being that he had hallucinations of going to get a large sum of money, and that he was going to set up some of these parties and give them some of it when he came into possession of it; that he was going to get it through his wife from Germany. None of these witnesses, with possibly one exception, would testify that he did not know right from wrong and was not responsible for his alleged act of attempt at arson. One witness did testify that he thought he did not know right from wrong or was liable to do anything, while another, the sheriff, testified as positively the reverse. The testimony of each of his witnesses on this subject was based entirely on his hallucinations or his contemplated acquisition of large sums of money. The evidence was amply and clearly sufficient to justify the jury to believe that he was sane, and that he was not insane.

The judgment will be affirmed.  