Lowe v. State

HENDERSON, Judge.

Appellant was convicted of the theft of a horse, and his punishment assessed at confinement in the State penitentiary for a term of five years.

The only question presented for our consideration is the action of the court failing and refusing to give a charge on kleptomania; that is a charge specially defining this species of insanity. It is conceded that the court gave a sufficient charge on insanity generally, but that kleptomania is a monomania or particular kind of insanity which should have been specially defined to the jury. In this connection we understand appellant to agree that the right and wrong test is applicable to kleptomania; that is, the disease of insanity must be such as to have deprived appellant at the time of the capacity to distinguish between the' right and wrong of the particular act charged, which was theft. If this be conceded, then it would seem to our comprehension that the charge of the court is sufficient,'because it lays down the “right and wrong” test as to the particular act charged, and distinctly told the jury, if at the time appellant was so diseased as not to know it was wrong to commit theft, to acquit him. However, we do not understand the definition of “kleptomania” to be as conceded by appellant’s counsel. The authorities define “kleptomania” as a species *226 of mania, consisting of an irresistible impulse to steal. See 1 Cleavenger, Insan., p. 177; 1 Bish. Crim. Law, sec. 388, subdiv. 3. Some of the books, however, regard it as a morbid propensity to steal, whether consciously or unconsciously. If kleptomania is simply an irresistible impulse to steal, regardless of the right and wrong test, then notwithstanding it was formerly recognized as a defense in theft by the courts of this State (see Looney v. State, 10 Texas Crim. App., 530, 38 Am. Rep., 646 ; Harris v. State, 18 Texas Crim. App., 387), that doctrine has more recently been repudiated. Hurst v. State, 40 Texas Crim. Rep., 378 ; Cannon v. State, 41 Texas Crim. Rep., 467 . The writer dissented from the views.of the majority of the court in those cases, but such is now the law of this State. So we hold, if the right and wrong test is applicable to kleptomania, the court gave a sufficient charge on the subject. If kleptomania is merely an irresistible impulse to steal, as the authorities seem to indicate, then it is not the law in this State, and the court was not required to give a special charge on that subject.

No error appearing in the record, the judgment is affirmed.

Affirmed.