COLLUM v. STATE. (Court of Criminal Appeals of Texas. Feb. 19, 1913.) ed to the jury the part which he had found in the defendant's possession by drawing an outline with a pencil of the portion he had in his possession.) I found on the portion FORGERY (§ 28*)-INDICTMENT-DESCRIPTION of the check in the defendant's possession OF INSTRUMENT. Where accused was charged with altering a bank check made on a printed blank used by the bank, and which the cashier refused to pay upon presentation, and the drawer, the cashier, and the constable, who saw part of the check, were all residents of the county and witnesses before the grand jury, the destruction of the check by accused did not excuse the failure of the indictment to describe the instrument correctly according to its tenor. [Ed. Note.-For other cases, see Forgery, Cent. Dig. 88 66-70, 74-76; Dec. Dig. § 28.*] Appeal from District Court, Shelby County; W. C. Buford, Judge. Thomas Collum was convicted of forgery, and he appeals. Reversed and remanded. D. M. Short & Sons, of Center, for appelant. C. E. Lane, Asst. Atty. Gen., for the State. the figures $11.65' and the name 'M. Carl- The First State Bank of I was be DAVIDSON, P. J. The indictment charges appellant with forgery. The indictment Joaquin, Texas. $alleges (that part which it is necessary here to consider) as follows: "Which said instru-fore the grand jury, which returned this bill ment, before being altered as aforesaid, was of indictment, and was asked some questions substantially in words and figures as follows, about this case." to wit: 'Joaquin, Texas. Pay to Thomas Hugh Jones testified he resided at Joaquin, Collum, $1.65. M. Carlson'-the same having Tex., and was cashier of the First State been destroyed by the defendant, and which Bank there. "I know the defendant, and said instrument was so altered by the said about 12 o'clock on July 15, 1912, he preThomas Collum, as aforesaid, in the manner sented a check, with M. Carlston's signature, following; that is to say, the figures of $1.65 for $11.65 for payment. I stamped it paid, were so altered as to read $11.65, as to make but, upon further examination, concluded not the said instrument falsely appear to be and to pay it, and passed it back to the defendappear substantially as follows, to wit: 'Joa-ant, telling him that was a funny way old quin, Texas, July 15th, 1912. First State man Carlson had of spelling eleven, because Bank of Joaquin, Texas. Pay to Thomas I discovered that the word 'eleven' was spellCollum $11.65. M. Carlson' (a better descrip-ed 'leven.' I also told the defendant that if tion of which the grand jury is unable to he wanted the money he would have to get give, because said check was destroyed by old man Carlson to give him another check; said defendant)-against the peace and dig- that Carlson might say he did not intend nity of the state." Only the latter portion this check to be that much." This witness of the indictment is quoted above, as only says they separated, defendant going off and the quoted portion is brought under criticism. witness going to dinner; that subsequently The proposition is asserted for reversal the appellant returned with the check and that the grand jury did not describe the in- presented it again, stating that old man Carlstrument as it in fact was given, and as they son would not give him another check. Witcould have described it by any fair or rea- ness declined to pay it, and appellant left. sonable diligence; that they had the evi- Witness told him not to come back any more dence before them by which they could have with his check. "The check which the dedetermined exactly and verbatim the instru- fendant presented had the figures '11.65' thus, ment alleged to have been altered; and that, and just like an ordinary bank check, and therefore, the indictment was not sufficient, the writing was 'leven & 65/100.' It was and therefore there was a variance between signed by M. Carlston and drawn on the the allegation and the instrument forged. Joaquin State Bank, at Joaquin, Tex. All Carlson testified that he gave appellant a this occurred at Joaquin, Tex." Upon crosscheck on the 15th of July, 1912, for $1.65, examination, this witness testified as foland took his receipt for it. McNeill testified lows: "I saw a portion of this check several that as constable he arrested appellant some days afterwards. It seemed to have been time in July on this charge, upon which oc- torn into three parts. I am unable to state casion he saw a part of the check. "(Here now exactly whether all of the word 'leven' the witness took a blank check and illustrat- was on it, as I did not pay particular atten tion to it. The figures '65' and the figures | bearer, $1.65, one 65/100 dollars. M. Carl'100' and the word 'dollars' were on there, ston"-whereas the check set out in the inand the figure '11' was also on the portion dictment was made to read: "Pay to Thomas I saw. I had no special occasion for examining this portion, and I never noticed it particularly. The last time I saw it, it was in the hands of the justice of the peace, before whom the defendant had his examining trial. I do not know whether the check was made payable to bearer or order. When the defendant presented the check for payment, his name was indorsed on the back of it. The front part of the instrument, as well as the indorsement, was written with an ordinary black pencil. The word 'leven' was written in the space in which some word seemed to have been first written and erased.” Collum, $1.65 [in figures]. M. Carlson." By observing the two instruments, they are not the same, so far as the reading of the face of them is concerned; and the facts show, beyond any question, that the grand jury had the witnesses before them by whom they could have reproduced it exactly-that is, by its tenor. Appellant brought this matter to the attention of the court in various ways, by charges, exceptions to charges, attack on the sufficiency of the evidence in the way of variance. In fact, counsel urged all possible objections from legal standpoints. This case falls squarely within the rule laid down in It was admitted in the record that the Carlton v. State, 60 Tex. Cr. R. 584, 132 S. other portions of the torn check were not W. 775, and it follows the unbroken line of found. Carlson testified to his want of con-authorities therein cited. Appellant has colsent in changing the check from $1.65 to $11.65. Carlson was also before the grand jury, and was questioned about the transaction. He says: "The check shown me and introduced in evidence, and found in this statement of facts, had the same writing and figures on it, so far as form is concerned, as the one which I gave the defendant. I merely filled in the blanks and inserted the date and signed my name. In other words, the following is substantially a copy of the check I gave the defendant: Joaquin, Texas, It has been, by unbroken line of authoriJuly 15, 1912. No. 441. The First State Bank | ties, the settled law in Texas that, wherever of Joaquin, Texas. Pay to Thom Collum or the grand jury could have known, by ordiBearer $1.65, one 65/100 dollars. M. Carl-nary diligence, the true facts, they are not ston.'" On redirect examination and on recross-examination this witness stated that there was no substantial difference as to the words and figures between the check in the record and that given the defendant by him, though there might have been some difference as to the size of the paper. Sanders testified that the torn parts of the check were lost; that he was county attorney; and that he could not find them. It was also stated by this witness that the witnesses Carlson, Jones, and McNeill were, in July, 1912, and are now, resident citizens of Shelby county. So it will be seen that the check was written upon the blank form mentioned by the witness McNeill; and it is also shown that McNeill was before the grand jury, as was the cashier of said State Bank of Joaquin; and, if the grand jury had desired, they could have, by the slightest diligence, found out exactly the character of check, the blanks of which were filled in by Carlson when he signed the check for $1.65. The blank form, he says, was the same as given here, which was: "Pay to or bearer, dollars." This check was filled out, making it read: "Pay to Thom Collum, of lated quite a number of cases, among others Jorasco v. State, 6 Tex. App. 238; Jorasco v. State, 8 Tex. App. 541; Brewer v. State, 18 Tex. App. 458; Williamson v. State, 13 Tex. App. 519; Atkinson v. State, 19 Tex. App. 466; Webb v. State, 39 Tex. Cr. R. 536, 47 S. W. 356; Pierce v. State, 38 Tex. Cr. R. 605, 44 S. W. 292; Greenl. on Evid. § 32; Bish. Cr. Proc. (2d Ed.) 549-552; Whart. Am. Crim. Law, § 251. See Branch's Crim. Law, § 383, for collated cases. authorized to set out by averment, in an indictment, an excuse for not setting out the real facts. The form used by Carlson, to wit, the form used by the First State Bank at Joaquin and the cashier of that bank, could have been had before the grand jury. The cashier lived in Shelby county at the time. Carlson, who wrote the check on the First State Bank form, was in the county and before the grand jury. McNeill, who testified to the form, was also before the grand jury; and there is no excuse why the form of check used and alleged to have been forged could not have been reproduced before the grand jury, and set out in the indictment. This very question was decided in the Carlton case, supra. The excuse given by the grand jury was that the instrument had been destroyed. We refer again to Carlton's Case, supra. The grand jury could have had the cashier of the bank before them. Carlson, who drew the check, and McNeill, who reproduced the form of the check, were residents of that county, and could have testified before that body as they did before the jury. The judgment is reversed, and the cause is remanded. WITTY v. STATE. months after the homicide, appellant was regularly adjudged insane in the county (Court of Criminal Appeals of Texas. Feb. court, and sent to the lunatic asylum. After 19, 1913.) 1. INSANE PERSONS (§ 26*)—CONCLUSIVENESS OF INQUISITION. Judgment of a court in an insanity inquisition is conclusive as to the mental condition of the subject at the time judgment was rendered, but only presumptive or prima facie evidence of insanity as to the time prior and subsequent to the adjudication. [Ed. Note. For other cases, see Insane Persons, Cent. Dig. §§ 35, 36; Dec. Dig. § 26.*] 2. CRIMINAL LAW (§ 311*)— PRESUMPTIONS— CONTINUANCE OF INSANITY. Insanity once shown to exist is presumed to continue. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 311.*] 3. CRIMINAL LAW (§ 331*)-INSANITY OF AOCUSED-BURDEN OF PROOF. Where, in a murder trial, it appeared that accused was adjudged insane about two months after the homicide. it being found that he had been insane for 10 or 12 months, the burden shifted to the state to show that accused was sane at the time of the homicide. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 331.*] 4. CRIMINAL LAW (§ 625*)-INSANITY OF AcCUSED INQUIRY-NECESSITY. Where it appears in a murder trial that accused has been previously adjudged insane, his trial should be continued until the jury has been impaneled to determine the question of sanity at the time of trial. [Ed. Note.-For other cases, see Criminal Law Cent. Dig. §§ 1392-1398; Dec. Dig. 8 625.*] 5. CRIMINAL LAW (§ 452*)-OPINION EVI DENCE-SANITY OF ACCUSED. In a murder trial, it was error to permit nonexpert witnesses to give their opinions as to accused's sanity, where the witnesses did not show that they knew enough concerning him to form an opinion. remaining in the asylum for a considerable Appellant presents several propositions: First, that the judgment of the county court adjudging him insane is a bar to the prosecution for the murder, inasmuch as the verdict of the jury and judgment of said court covered the time, and for 10 or 12 months prior to the time, of the adjudication, and the said court, being one of competent jurisdiction, was authorized to determine that question, and therefore it was final and con [Ed. Note. For other cases, see Criminal the end that if he was he should not be Law, Cent. Dig. 88 1053-1055; Dec. Dig. | tried until his restoration to sanity, so that 452.*] 6. CRIMINAL LAW (§ 542*)-EVIDENCE-TESTIMONY OF DECEASED WITNESS. On an issue of insanity in a murder trial, it was error to exclude on accused's offer testimony as to accused's sanity, given in a prior inquisition in the county court; the witness having since died. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1232, 1236; Dec. Dig. § 542.*] Appeal from District Court, McLennan County; Richard I. Munroe, Judge. J. B. Witty was convicted of murder in the second degree, and he appeals. Reversed and remanded. he might be of service to his counsel in conducting the case, and further, in accord with the law, that no man who is insane shall be tried for his life or liberty while he is in that condition. [1] The first proposition is a serious one, and fraught with much trouble. It is one to which we have given a great deal of attention, and it is not as clear as we wish it could be from adjudicated cases. The rule seems to be well settled, however, after the judgment of the court having inquisitorial jurisdiction, as in insanity cases, that the judgment is conclusive of the mental condition or status of the party at the time of its rendition, but presumptive or prima facie evidence of insanity as to the time covered by the finding of the mental status of the party prior to the adjudication. There are a great many authorities which have discussed this question. The rule seems to be fairly well settled, if not thoroughly, with reference to all overreached or overreaching The homicide occurred on the 21st of July. transactions-that is, those matters covered The following September, or about two by the verdict of the jury or conclusion of Williams & Williams, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. DAVIDSON, P. J. This conviction was for murder in the second degree, appellant being alloted a term of 40 years in the penitentiary. the inquisition prior to the judgment and insanity exists at the time of the rendition the mental condition at the time of the judg- of the verdict. This is in line with what has ment-that the judgment is to be regarded been above stated. See 10 Pleading & PracThere are a great as prima facie or presumptive evidence of tice, p. 1222, and notes. insanity during the time covered by the ver- many cases throughout the federal Union, dict or finding of the inquisition. L'Amoureux which might be cited in this connection, v. Crosby, 2 Paige (N. Y.) 422, 22 Am. Dec. 655; which sustain the proposition, first, where a Den ex dem. of Aber v. Clark, 9 N. J. Law, judgment has been rendered or an inquisition 217, 18 Am. Dec. 417; Wheeler v. State, 34 has determined the fact that the party is Ohio St. 396, 32 Am. Rep. 372; Greenl. on insane, that that is conclusive at the time of Ev. §§ 550, 556, 356; 16 Am. & Eng. Ency. the rendition of the verdict; second, that of Law, pp. 606, 607, and collated cases; from that time forward the presumption is 7 Ency. of Evidence, pp. 457, 462, 464, 477. that insanity continues until it has been adIn 16 American & English Ency. of Law, judicated otherwise; third, that at the rensupra, it is stated: "In collateral proceed-dition of the verdict and judgment of all ings a finding of lunacy upon an inquisition matters covered and overreached by it prior which has not been superseded is presump- to the rendition of the judgment and ascertive, and not conclusive, evidence of insan- tained by the verdict the same rule obtains; ity; and, when the record of inquisition is that is, that it is presumptive that insanity offered in evidence in another proceeding, existed for the time covered by the verdict. its validity is not open to collateral attack." Taking the above as correct, it would seem As authority in note 2 we find the above on to be the law that at the time of the rendipage 606. Quite a number of English cases tion of the verdict and judgment in the counare cited in the note, as well as United ty court determining that appellant was inStates and state cases, including Georgia, sane, it was conclusive of that matter at the Kentucky, Massachusetts, New Jersey, New time, and is presumptive evidence of insaniYork, North Carolina, Pennsylvania, Rhode Island, South Carolina, Texas, and Vermont. ty for the 10 or 12 months prior to the rendition of the verdict included by the finding The same work, at page 607, states this rule: of the jury in the inquisition in the county "So, also, where a transaction is overreachcourt, and that it is also presumptive evied by the finding of the jury in lunacy pro- dence that from the time of the verdict findceedings, the inquisition is presumptive, but not conclusive, evidence on insanity at the ing him insane, insanity will continue subsetime of such transaction"-citing in support quently. If these views are correct, and we of this a great number of cases in England believe they are, then the state was not conand America. These are to be found in note cluded from the prosecution of the case by 2 on page 607 of said work. They are too reason of the verdict of the jury in the counnumerous to be cited in the opinion. It is ty court, but that that judgment would be stated in the note, among other things, as presumptive or prima facie evidence of infollows: "As to acts done by a lunatic be- sanity both before and after its rendition. This being correct, it shifted the burden of fore the issuing of the commission, and which are overreached by the retrospective proof from the defendant to the state, and finding of the jury, the inquisition is only the state was required to assume the burden presumptive, but not conclusive, evidence of of proof in order to show that appellant was incapacity"-citing L'Amoureux v. Crosby, 2 sane at the time of the homicide. The genPaige (N. Y.) 427, 22 Am. Dec. 655; Wheeler eral rule is that where insanity is set up in v. State, 34 Ohio St. 396, 32 Am. Rep. 372; the trial of a case to avoid punishment for Lancaster County Nat. Bank v. Moore, 78 an act charged to be criminal, the presumpPa. 407, 21 Am. Rep. 24. So by a long line tion is that he is sane, and the burden of of cases it is held that in a criminal prose-proof is on him to show by preponderance of cution, if it is established that the accused evidence that he is insane. This is the rule was afflicted with general or permanent in- in Texas, though not in all of the states. It sanity prior to the alleged crime, it will be seems to be a much mooted question, and a presumed that insanity continued to the time very serious one, whether the rule is corof the alleged offense, and unless such pre-rect or not under the authorities of the UnitBut such has been the rule in sumption is overcome by competent evidence, ed States. the accused is entitled to an acquittal. For Texas. The rule, however, in Texas is equalcases, see In re Brown, 39 Wash. 160, 81 Pac. 552, 1 L. R. A. (N. S.) 540, 109 Am. St. Rep. 868, 4 Ann. Cas. 492. See, also, In re Murphy, 43 Mont. 353, 116 Pac. 1004, 24 Ann. Cas. 388. Those show a great number of cases. [2, 3] The rule seems to be also well settled that, where insanity is once shown to exist, it will presume to continue. It is also ly well settled that wherever insanity has been shown by a judgment of the county court in an inquisition or of de lunatico inquirendo, the presumption is that he is insane at the time set out or covered by the verdict of the jury if it overreaches and goes back in its finding as to the length of time the party has been insane, and it is equally the rule that the presumption of insanity ob tion of this evidence then would cast the | to refrain therefrom." There are other burden upon the state to show that he was special charges submitting the same question sane at the time of the homicide. This is so in different forms; all looking to the one in all the cases in Texas, so far as we are general proposition, however, that where inaware. The matter underwent a pretty thor-sanity is shown to have existed by reason of ough investigation by this court in Hunt the verdict and judgment of the county court, v. State, 33 Tex. Cr. R. 252, 26 S. W. 206. The opinion in that case was well considered and written by the late Presiding Judge Hurt of this court. That case, in substance, held that on a trial for murder the charge is correct which in effect instructs the jury that, where a judgment establishing insanity has been put in evidence, the burden is upon the state to prove beyond a reasonable doubt that insanity of which defendant was convicted was temporary, or prove that he had been cured of such insanity; otherwise insanity is presumed to have continued. This case was approved in Wisdom v. State, 42 Tex. Cr. R. 583, 61 S. W. 926, and has been approved in quite a number of cases subsequent to the Wisdom Case. See Wooten v. State, 51 Tex. Cr. R. 430, 102 S. W. 416. We, therefore, hold under the first question presented that the judgment of the county court adjudging appellant insane is not a bar to the prosecution for murder as contended by appellant, but is presumptive evidence of insanity, and makes a prima facie case, to be overcome by the state under the rules laid down. the burden is on the state, on the trial for homicide, to show the sanity of the accused. We deem is unnecessary to repeat these charges. They sufficiently state the general proposition. The opposing propositions are sharply presented by the court's charges and those asked by appellant, and refused by the court; that is, the court instructed the jury to disregard the county court judgment, and required defendant to prove by a preponderance of evidence that he was insane at the time of the homicide, whereas appellant insisted the burden of proof under the verdict of the jury and judgment of the county court was on the state to show that he was sane. The question of lucid intervals seems not to have entered into the discussion in the court below. Under the authorities, however, the burden would be on the state to show the lucid intervals. We, therefore, hold in regard to the second proposition that the court committed error in the charges given and in refusing the special requested instructions. [4] Another proposition contended for was the court should have, before placing appellant on his trial for the homicide, impaneled This brings us to the second proposition; a jury to determine the question whether he that is, if the judgment was not a bar to the (defendant) was at the time of the trial inprosecution for the homicide, that it was sane, to the end, if he was, he should not be prima facie evidence of insanity at the time tried until his final recovery, and so that he of its rendition, and for the time covered by might be of service to his counsel in conthe verdict of the jury and judgment of the ducting the case, as well as in accord with county court. We hold this proposition to the humane provisions of the law which probe sound and well taken. Growing out of vide that no man who is insane shall be tried the second proposition there are quite a num- for his life or liberty while in that condition. ber of questions raised and suggested in re- If upon another trial of the case this quesgard to the rulings of the trial court and tion is presented as required by law, a jury charges given and refused. The court, among should be impaneled, and if appellant is other things, instructed the jury that, in found insane the case should be continued passing on the question of insanity at the until appellant's mind has resumed its nortime of the homicide, they should not be mal condition. This seems to have been the bound by the verdict and judgment in the rule in Texas since Guagando v. State, 41 county court which had been introduced be-Tex. 626. fore them in evidence, finding him insane Another bill of exception recites that, after the alleged shooting. The court also while Phil Hobbs was on the stand, the witinstructed the jury that the burden of proof ness having testified only to a casual acquaintwas upon the defendant to establish the ance with the defendant prior to the date of question of insanity, and that he must prove the homicide, and not having testified to any it at the very time of committing the act. act or incident calling his attention to the Exception was reserved to these charges, and mental status of the defendant, and the witspecial instructions asked to the contrary. ness did not claim to have had any occasion or Among other things, these requested instruc- opportunity to know or consider the mental tions contained this: "You are further in- status of the defendant, all of which is made structed that the burden of proof is there- to appear by the testimony of the witness fore on the state to prove by a preponderance in the statement of facts, which is referred of the evidence, and beyond a reasonable to and made a part of the bill, the state's doubt, that at the time of said act the de-attorney, referring to the morning after the fendant's mental condition was such that he homicide when the witness testified that he did know the character of his act and its was there for a short while in the jail, and saw |