W. D. Ward v. The State, 19 Tex. Ct. App. 664

Hurt, Judge. On the 24th day of October, 1884, in the district court of Medina county, appellant W. D. Ward was convicted of murder of the first degree, his punishment being fixed at confinement in the penitentiary for life. This conviction was for the killing of Eobert Fly. We will treat the first and third assigned errors together. First error assigned: That the court erred in overruling the defendant’s challenge for cause to the juror J. E. Scates, and compelled defendant to challenge him peremptorily.

Upon his voir dire Scates answered: “I have talked to witnesses about the case; have strong opinions as to his guilt or innocence; have expressed those opinions. It would take good, positive and conclusive evidence of truthful men to change my opinions,” but his opinions would not influence his verdict. Third error: In overruling defendant’s challenge for cause to W. W. Bailey. Upon his voir dire this juror answered: “I have some opinion now as to his guilt or innocence. It would take evidence to change that opinion. I got that opinion from hearsay or general gossip. I heard about it through talk and newspapers.

What I read purported to be the truth, as well as I remember it. It is a settled opinion now. If the evidence turned out as I have read it, I would be of the same opinion still. I think that opinion would not influence my verdict.” The juror ¡Newton, on his voir dire, said: “I have formed an opinion as to the guilt of defendant from hearsay. It would take evidence to remove that opinion. I could discard that opinion, try the case on the evidence, but the opinion might have a bearing on me.” R. B. Ship said: “I have formed and expressed an opinion as to the guilt or innocence of the defendant.

I could not discard it in going into the jury box. It would take evidence to change it. I would render a verdict upon the evidence uninfluenced by that opinion. The parties who told me were not witnesses, but told me what purported to be the circumstances and facts of the case, and may have had other conversations since then with some parties.” All of these objectionable jurors, except Bailey and Ship, when defendant’s challenges for cause were overruled, were challenged peremptorily, and did not serve on the jury. Defendant, however, exhausted his peremptory challenges.

That each and every one of these jurors were obnoxious to challenge for cause there can be no doubt or question. We have had under consideration the questions presented in this record, relating to the competency of the jurors, for quite a long while; we have carefully examined and compared the authorities bearing upon this subject, with a view of making, if possible, a clearer statement of the principles of law applicable thereto than we have already done; but we are forced to concede our inability to make a clearer ©r more lucid exposition of the law than that already made.

The opinion of Judge Clark in the Rothschild case is not only a model for style and logic, but is, we believe, exhaustive of the subject. In support, therefore, of the position that the above named persons were incompetent because they had formed an opinion of the guilt of defendant which was calculated to influence their verdict, we submit the following authorities: Rothschild v. The State, 7 Texas Ct. App., 540; Burrell v. The State, 18 Texas, 713; Johnson v. The State, 27 Texas, 758; Sharp v. The State, 6 Texas Ct. App., 650; Bejarano v. The State, id., 265; Krebs v. The State, 8 Texas Ct. App., 1; Loggins v.

The State, 12 Texas Ct. App., 65. There was evidence tending to show that defendant was temporarily insane, produced by excessive use of intoxicating liquors.

Upon this subject the learned judge charged the jury as follows: “ Temporary insanity, if caused by the immoderate and continuous use of intoxicating liquors for a long period of time before the commission of the crime, for such a period as could not in reason be said to be recent, would be an excuse for the commission of crime; but the condition of the mind must be that of some disease, the result of or engendered by the long-continued or continuous use of ardent spirits — such as delirium tremens as contradistinguished from that form of it called drunkenness — and not a condition of mere drunkenness or drunken frenzy; for if the long-continued use of ardent spirits has not produced some specific disease or condition of the mind coming under the general head of insanity, but has only produced drunkenness, then such a condition of the mind does not excuse one for the commission of crime.” It will be seen from this charge that the insanity, to be a defense, must be caused bv the immoderate and continuous use of intoxicating liquors for a long period of time before the commission of the crime;-—■ “for such a period as could not in reason be said to be recent.” This charge was no doubt inspired by

section 1 of the act of February 17, 1881. How, let us suppose that the use of intoxicating liquors had been long continued and also recent: What then? Would the insanity thus produced be a defense? We believe that the Legislature intended that, whether insane or drunk, if either be produced alone from recent use of intoxicating liquors, it will not be a defense; but, on the other hand, though there be recent use, if the prisoner had long and continuously used intoxicating liquors, and this long and continued use, aided by recent use, rendered him insane, such insanity so produced would be a defense.

As there was evidence showing a long and continuous use of liquor as well as recent, this charge was calculated to mislead the pry- Again, we are clearly of the opinion that the intention of the Legislature was correctly and concisely stated in the charge requested by defendant, which is as follows: “The defendant asks the court to instruct the jury that, if they believe from the evidence that the defendant committed the act charged in the manner and form as charged in the indictment, still, if the jury further believe from the evidence that the defendant was in such a state of mental insanity (not produced by the immediate effects of intoxicating drink, but produced by the continued and excessive use of intoxicating liquors) as not to have been conscious of what he was doing, then they should find the defendant not guilty.” The court should have given this requested instruction, and in refusing to do so erred.

Because the court erred with reference to the competency of the jurors, above discussed, and because of the error in refusing the special requested instruction, the judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered December 16, 1885.]