
    DAVIDSON v. STATE.
    (No. 11335.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    State’s Rehearing Denied March 28, 1928.
    1. Criminal law <⅜=»778(5) — Refusal to charge that state had burden to disprove exculpatory statements in alleged confession held .proper under evidence.
    In prosecution for murder, in which there was circumstantial evidence apart from defendant’s statement to connect him with killing and to show he fired fatal shot, and state was not forced to rely wholly or even mostly on defendant’s statements in alleged confession, refusal to charge that state had burden to' disprove exculpatory statements in such alleged confession held not error.
    2. Criminal law <@=>814(17) — Charging ón circumstantial evidence is unnecessary where there has been direct confession to killing.
    Where there has been direct confession to killing, it is never necessary to charge on circumstantial evidence.
    3. Criminal law <§=>784(3) — Alleged confession held to justify court’s failure to charge on circumstantial evidence.
    In prosecution for murder, alleged confession, although made by defendant when drunk and accompanied by exculpatory statements, fteld to render failure to charge on circumstantial evidence not reversible’ error.
    4. Criminal law <@=>784(3) — If sufficiency of confession to killing is doubtful, court should charge on circumstantial evidence, if state has no direct evidence.
    In prosecution for murder, if it clearly appears that there is doubt as to whether alleged statement by defendant shortly, after killing amounted to confession, court should charge on circumstantial evidence, if state has no direct evidence.
    5. Criminal law <§=>311 — Every one is presumed sane until contrary is proven.
    In criminal prosecution, every one ⅛ presumed to be sane until contrary is proven.
    6. Insane persons <§=>26 — Adjudication of insanity by court of competent jurisdiction held to overcome presumptions of sanity theretofore existing and to create rebuttable presumption of insanity until contrary appeared.
    In criminal prosecution, fact that defendant had previously been by court of competent jurisdiction adjudicated insane overcame presumption of sanity theretofore existing, and created rebuttable presumption of insanity from such.time forward until contrary appeared.
    7. Insane persons <§=>26 — Presumption of insanity from adjudication thereof may be rebutted by proof of discharge from asylum and other evidence.
    In prosecution for murder, presumption of insanity from previous adjudication thereof by court of competent jurisdiction, which had not been set aside, was rebuttable, and could be' met by proof of discharge from asylum and evidence of physician in charge of defendant at asylum.
    8. Insane persons <§=>29 — Evidence of restoration of person adjudicated insane to sanity held not to create presumption of sanity, but to constitute evidence of changed' mental state.
    In prosecution for murder, evidence that defendant had been restored to sanity and discharged from asylum to which he was sent after adjudication of insanity by court of competent jurisdiction, which adjudication had not been set aside, did not create presumption of sanity, but was merely evidence of changed mental status, to be considered with other facts in passing on his sanity at .time of alleged criminal act.
    9. Criminal law <§=>778(5) — In prosecution for murder, where former adjudication of defendant’s insanity had not been set aside, refusal to charge that state had burden to prove sanity, and that adjudicated condition was presumed to exist until contrary was shown, held error.
    In prosecution for murder, on showing that defendant had previously been adjudicated insane by court of competent jurisdiction, and had been committed to asylum, but had been restored to sanity, in view of fact that adjudication of insanity had not been vacated or annulled, refusal to charge that burden of proving defendant’s sanity at time of alleged murder was on state, and that from and after judgment of insanity defendant was presumed to be insane unjil contrary was shown by evidence, held error.
    10. Insane persons <§=>26 — After adjudication of insanity, party alleging recovery or lucid interval has burden to prove it.
    After' adjudication of insanity, if recovery or lucid interval is alleged to have occurred, burden of proving it is on party making allegation.
    11. Criminal law <§=>474 — In prosecution for murder by defendant previously adjudicated insane, testimony of asylum physician that ho was sane when he left asylum held admissible.
    In prosecution for murder, where it was shown that defendant had previously been adjudicated insane and confined in asylum, state had burden of showing his sanity, and testimony of physician in charge of asylum that he was sane when he left was admissible.
    12. Insane persons <§=>26 — In prosecution for murder, previous adjudication that defendant was insane held not to conclude state as to ‘ showing sanity.
    In prosecution for murder, where defendant had previously been adjudicated insane and confined in asylum, state was not concluded by such judgment which only raised presumption1 of insanity, which could be met by evidence showing restoration to sanity, although judgment of insanity had not been vacated.
    On Motion for Rehearing.
    13. Criminal law <§=>48 — On defense of insanity, final test is whether accused, at commission of offense, knew right from wrong in particular transaction.
    Where one charged with crime seeks to defend on ground of insanity, final test is whether he, at time of commission of alleged offense, was . so insane as not to know right from wrong in particular transaction, and that it was something he ought not to do.
    14. Criminal law <§=>331 — Defendant in criminal prosecution, ordinarily has burden of supporting plea of insanity by preponderance of evidence.
    Because of presumption of sanity in ordinary cases, burden of supporting plea of insanity in criminal prosecution is ordinarily put on defendant, who must show by preponderance of evidence that he was insane at time of offense.
    15. Criminal law <§=>l 110(2) — Neither defendant nor state can amend statement of facts on appeal.
    . In criminal prosecution, where statements of facts has been agreed to, certified, and filed, it cannot be amended on appeal either by state or by defendant.
    Commissioners’ Decision.
    Appeal from District Court, Denton County; Alvin C. Owsley, Judge.
    Gordon Davidson was convicted of murder, and he appeals.
    Reversed and remanded.
    Robt. H. Hopkins and Sullivan, Speer & Minor, all of Denton, for appellant.
    Elbert Hooper, Co. Atty., and Earl Street, Asst. Co. Atty., both of Denton, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, murder; penalty, eleven years.

Appellant and deceased were carpenters, and apparently on very friendly and intimate térias prior to the death of deceased. On the afternoon before the tragedy that night they began drinking together, and, in company with a third party, went to Port Worth after more liquor. On leaving, a single barrel shotgun was put in the car by deceased. They returned that night alone, and deceased was found dead by the roadside on what is known as the old Fort Worth and Denton highway, a few miles out of Denton. The car at the time was headed north, its right wheels in the ditch on the east side of the road. The appellant’s body was found lying on its back, with one foot about even with, or slightly under, the west running boat’d of the car, the head pointed west, with a single wound about under the right nipple, ranging very slightly upward. .The clothes were powder burned, and the entrance to the wound slightly so, The gun was found with the stock on the bottom of the front car seat, the trigger down, no trigger guard on the gun, with the barrel protruding over the west end of the seat a few inches, and with an exploded or discharged shell in the gun. The deceased and the appellant were both shown to be drunk that night a short time before tile tragedy. A shot was heard by those living nearby, and in a few minutes the appellant appeared and made a statement.

According to the state’s witness, Edwards, appellant at that time and place said in substance:

“That Y. D. Smith (deceased) was dead, and asked us to go over there. Then he asked to be taken home, that he was drunk. He first said he killed him, then he told us, ‘No, boys, I didn’t kill him, but there is others did.’ * * '* Then he told us, said he had not been with him, had not saw him lov three or' four days. He was staggering along in a fast walk. He asked us which direction the railroad was. We told him the railroad was east. When he left, he went south and ran into a fence. He told us Smith was killed because he had turned in too many.”

Witness said be was talking in kind of a rambling way, a wandering kind o-f way. At one time be said be killed him, at another timé be said be did not know who killed him, and then at another time be said others did.

Another witness present at this conversation testified that appellant said that deceased used bis own judgment and killed himself.

■ Appellant was found by the officers a short time after the above conversation drunk and asleep by the side of the road. No third parties witnesses the tx*agedy.

The record shows that appellant was tried and adjudged a lunatic in January, 1924; was thereafter confined in a lunatic asylum for a short time; was furloughed, and after-wards, about August, 1924, was discharged from the asylum. This killing is alleged to have happened in October, 1926.

Appellant complains, in substance, that the court failed to charge the' jury that the burden was upon the state to disprove the exculpatory statements introduced by the state quoted above. The court charged fully upon all the defensive matters contained in said exculpatory statements, and required the jury by his charge to believe beyond a reason-. able doubt that appellant killed deceased. There is eiroumstantial evidence apart from appellant’s statements to connect him with the killing and to show that he fired the fatal shot. The state was not forced to rely wholly or even in most part upon the statements of appellant to connect him with the tragedy. Under these circumstances, the court did not err in not giving to appellant the benefit of the suggested charge. A somewhat similar state of facts was before the court in Harris v. State, 103 Tex. Cr. R. 479, 281 S. W. 206, where the question was analyzed and a xvle announced applicable, we think, to the present case. See, also, Pickens v. State, 86 Tex. Cr. R. 660, 218 S. W. 755.

Further complaint is made by appellant because the court failed to charge upon circumstantial evidence. Where there has been a direct confession to the killing, it is never necessary to charge upon circumstantial evidence. Tillman v. State, 88 Tex. Cr. R. 10, 225 S. W. 165. Branch’s P. O. § 1874. A charge upon circumstantial evidence in this case would have to be based upon an assumption that appellant’s statements did not amount to a confession. In such' case, the court would charge the jury that the state’s case was one of circumstantial evidence; thus in effect stating to the jury that, in the opinion of the court, appellant’s statements did not connect him directly with the killing. This would be an unwarranted assumption on the court’s part. The statements, it. is true, are contradictory, and it may be very plausibly argued that they were but the vaporings of a drunken brain, but, after all, we think this was a question for the jury under the peculiar facts of this ease and hot for the court. It might be that, upon , a fuller development of the facts, these statements were so interwoven and their background such as not to amount to a confession, or at least not so clearly so as to justify a refusal of a charge on circumstantial evidence. In case it clearly appeared that there was a doubt about the matter, the court should charge on circumstantial evidence. Trijo v. State, 45 Tex. Cr. R. 127, 74 S. W. 546. The record is somewhat unsatisfactory, but in its present condition we do not feel warranted in holding that the court would have a right to,assume that there was no proven confession.

There was abundant evidence of insanity. The court charged the jury that the burden of proving insanity was upon the appellant. He refused to charge that the burden was upon the state to prove sanity, and that, the record having shown a judgment of insanity, such condition was presumed to feist until the contrary ■ was shown. Every man is presumed to be sane until tbe contrary is proven. It appears from tbe record that the court having jurisdiction entered its judgment that appellant was insane in January, 1924. This was res ad judicata of his .mental status at that time, and overcame the presumption of sanity theretofore existing, and its effect was to create a presumption of insanity from that time forward until the contrary appeared. It was a rebuttable presumption, however, that could be met, as it was in this case, by proof of his discharge from the asylum and by the evidence of the physician in charge of the appellant at the asylum where he was confined. However, this evidence does not have the effect of entirely annulling and abrogating the judgment theretofore rendered so as to again create a presumption of sanity, and was but evidence of a changed mental status, to be considered by the jury along with the other facts in the case in passing on appellant’s sanity at the very time of the alleged criminal act. It was shown that the judgment of lunacy had in no wise been vacated or annulled, and was in full force and effect at the time of the trial. This being true, it became the duty of the court, under all the Texas authorities, to charge the jury that the burden of proving the sanity of appellant at the time of the commission of his alleged act was upon the state, and that from and after the judgment of lunacy appellant was presumed to be insane until the contrary was shown by the evidence. Yantis v. State, 95 Tex. Cr. R. 541, 255 S. W. 180; Witty v. State, 69 Tex. Cr. R. 125, 153 S. W. 1146; Morse v. State, 68 Tex. Cr. R. 352, 152 S. W. 927.

“An adjudication of insanity substitutes for the presumption of sanity a presumption of insanity which is presumed to continue until the contrary is shown.” 32 O. J. p. 646.
“In Texas the rule is, that where insanity has been once shown to exist as by judgment of the court, the presumption is that insanity continues, and the burden of proof is upon the state, to show otherwise and the jury must be so informed.” Morse v. State, 68 Tex. Cr. R. 351, 152 S. W. 927; Wooten v. State, 51 Tex. Cr. R. 428, 102 S. W. 416, and authorities therein cited.

The further rule is that, if a recovery or a lucid interval is alleged to have occurred, the burden of proof of such allegation is upon the party making it. Morse v. State, 68 Tex. Cr. R. 352, 152 & W. 927.

What has been said above disposes of appellant’s contention that the testimony of Dr. Castner, the asylum physician, to the effect that appellant was sane when he left the asylum, was inadmissible to contradict the judgment of lunacy. The burden having been cast upon the state to prove appellant’s sanity, the testimony of this witness or any other of like character would be admissible to prove this issue. The state was not concluded by such judgment, and same only raised a presumption of insanity which could be met by evidence of this character. Hunt v. State, 33 Tex. Cr. R. 252, 26 S. W. 206, and authorities supra.

For the error above indicated, the judgment is reversed, and the cause remanded.

■ PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

It seems well established by the authorities of this state, as to not admit of controversy, that, when at some time prior to the commission of the offense the accused has been adjudged insane by a court of competent jurisdiction, which is not shown to have been set aside or legally vacated in any way, this shifts the burden of proof from the defendant to the state in regard to insanity. Under all the authorities when one charged with crime seeks to defend upon the ground of irresponsibility .by reason of insanity, the final test is whether or not the accused was so mentally deranged at the time of the commission of the alleged offense as not to know the right from the wrong in the particular transaction, and that it is a thing he ought not to do. While- this is true, it seems also universally recognized that, because of the presumption of sanity in oiv dinary cases, the burden of supporting a plea of insanity by one who interposes it, in such ordinary case,’ is put upon the accused) and he must show by á preponderance of evidence that he was insane at the time — but this burden shifts in case there has been an unvacat-ed adjudication of insanity against him prior to the time of the alleged commission of such offense, and in such case the court should tell the jury that the state must prove beyond a reasonable doubt that, at the time of the commission of the offense, the accused was sane, etc. The shifting of this burden of proof may be a matter of value to the accused, and he is entitled to whatever benefit may arise by reason thereof.

We are not permitted under all the authorities to allow either- the appellant or the state to amend a statement of facts on appeal. The uniform holding in this state seems to be that, after the statement of facts has been agreed to, certified, and filed, same cannot be amended.. Stephens v. State, 10 Tex. App. 120; Belcher v. State, 35 Tex. Cr. R. 168, 32 S. W. 770; Brande v. State (Tex. Cr. App.) 45 S. W. 17; Gherke v. State, 59 Tex. Cr. R. 508, 128 S. W. 380; McBride V. State, 93 Tex. Cr. R. 257, 246 S. W. 394; Edwards v. State, 98 Tex. Cr. R. 47, 262 S. W. 742; Hurd v. State, 99 Tex. Cr. R. 388, 269 S. W. 439. This prevents our considering the matters brought forward by affidavit by the appellant in connection with this motion, and intended to supply part of the judgment of conviction which was omitted hy the court reporter in preparing the statement of facts. However, we are unahle to bring -ourselves to believe that there is not in the record already sufficient evidence that a regular judgment of lunacy was entered against appellant at a time prior to the commission of this alleged offense, and that there is not such evidence here that same has been set aside, or in any way vacated, as to absolve the trial court from charging the jury that the burden of proof was upon the state to show beyond a reasonable doubt the sanity of the accused at the time of the alleged homicide.

Being unable to agree with the state’s contention, the motion for rehearing will be overruled. 
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