On the voir dire of the jurors, none of them were-examined by the court as to their relationship to the defendant or the deceased, but, after each juror was examined by the court, he was put upon the State and the defendant for acceptance, or rejection, and this mode of procedure continued until twelve jurors were ac
The court then stated to the defendant that he might have the privilege of challenging any juror on the ground of relationship to the defendant or deceased, and offered to ask the jury as a whole, or each of them, as to such relationship; but the defendant objected to such question being propounded to the jury, or any member of the jury. The court then overruled defendant’s motion and he excepted. With or without the evidence of the witness, Jake Jones, there was no error in the ruling of the court on the defendant’s motion. Pretermitting the question as to the time when the motion was made, he not only would not avail himself of the opportunity offered him by the court to challenge any of the jurors on the ground named, but he offered no proof, and did not propose to offer any, to show that any juror Avas disqualified for the reason assigned in the motion to quash, and objected to the court at that time asking any one of the jurors as to such relationship. — Jones’ case, 53 Ala. 380, and Bridges’ case, 110 Ala. 15, and authorities there cited.
The defendant, to the indictment, jileaded not guilty, and not guilty by reason of insanity. He was found guilty of murder in the first degree and Avas sentenced to be hanged.
There Avas no conflict in the evidence,AAdiich showed the killing, and from the record it appears that the only defense relied upon Avas that of insanity.
The question asked Mrs. LeCrane by the defendant, “Did you think they were Avhite or colored people when they passed?” called for immaterial evidence, and the court properly sustained the State’s objection to it.
The objection made to the evidence of the Avitness Bart George, as to defendant’s statement about the kill
It is the province of the jury to determine whether or not a Avitness is mistaken'in his evidence, where such Avitness’ evidence is shoAvn to be in conflict Avith that of another, and it is not permissible to ask a Avitness, if another witness avus not mistaken in the evidence given by such witness. — Johnson’s case, 94 Ala. 35.
When witnesses have been placed under the rule, it rests in the discretion of the court to allow one, who did not retire from the court room, to be examined.- Especially is this true under the facts in this case, Avhich show that the Avitness objected to wus exempted from the rule by the court. — McClellan’s case, 117 Ala. 140; Sanders’ case, 105 Ala. 4; McGuff’s case, 88 Ala. 147; McLean’s case, 16 Ala. 672.
The Avitness Jake Jones, after testifying to a statement Avhich he said was made to him by the defendant in the county jail sometime after the tragedy, was asked this question, on cross-examination by the defendant, “Did he tell you that he had been to Perry county where his brother had gone insane and had gone into a church and raised a big disturbance?” We recognize the rule, that where a part of a conversation has been brought out by the State, the defendant is upon cross-examination entitled to have from the Avitness testimony of the Avhole conversation had at the same time, in reference to the same subject-matter. — 1 Greenleaf on Ev. § 201 and McLean’s case, 16 Ala. 672. But, upon an examination of the conversation as testified to by the Avitness, Ave have found nothing which is even remotely connected with the evidence Avhich avus sought to be elicited by the question asked. It is insisted, however, that the testimony contemplated would have had bearing upon the plea of insanity, and avus competent and relevant under the plea which presented that issue. It may be conceded, that it
There is no merit in the 12th and 13th assignments of error relating to- questions allowed by the court to be asked by the State of witness, Douglass Crenshaw, and they are not insisted upon by the defendant.
E. R. Norman, a witness for the defendant, testified that he was a reporter for the Age-I-Ierald, and went to the county jail to interview the defendant the night of the day on which the killing occurred. That he went to his cell and talked to him for three-quarters of an hour, and that it was about 9 o’clock at night. That he could not get much sense out of him, he seemed to be cool but nervous; that his actions were very peculiar and that what he got from the defendant, in the interview, he had to pull out of him. The defendant then asked the witness this question, “State whether or not the defendant talked disconnectedly, appeared absent minded, or any other peculiarities about him which .you may have noticed?” The court sustained an objection to the question. We think that it would have been competent for the witness Norman to have testified whether or not the defendant talked disconnectedly and whether or not his conversation was coherent, or incoherent. This did not call for an opinion of the witness, but would, if he had answered the question that his conversation was disconnected, have been a short-hand rendering of facts. But, the last clause of the question, we think, rendered the question as a whole objectionable. This clause rendered the “Question very general, so much so, that irrelevant evidence would have been responsive to it.” — Ross’ case, 139 Ala. 144. There may have been peculiarities about the defendant, in his physical make up, noticed by the witness, which would have had no tendency whatever to enlighten the minds of the. jury as to his mental status.
. Witness Norman, further testifying, said that he noticed that the defendant would repeat things he had al
By numerous-decisions of this court it has been held, that a non-expert witness, before he may be allowed to give his opinion of the existence of an unsound condition of mind, must be shown to have had the opportunity to form a judgment, and this would depend upon the familiarity of the Avitness with the person whose sanity is in question, “The character of the disqualification, the nature and number of the extraordinary circumstances detailed, and their proximity to the act involved in point of time.” The witness was not shown to have had any previous acquaintance with the defendant; he had never seen him before the night of his intervleAv with him. We think he was not brought within the rule allowing the opinions of non-experts as to the insanity of a person. — Florey’s Executors v. Florey, 24 Ala. 241; Norris’ case, 16 Ala. 776; Powell’s case, 25 Ala. 21; Houston v. Stubbs, 33 Ala. 555; Burney v. Torrey, 100 Ala. 157; Parrish’s case, supra; O’Connor v. Madison, 98 Mich. 183.
Furthermore, as was held in Parrish’s case, supra, the question, as to the competency of a witness to express an opinion as to the insane condition of the defendant’s mind, is a question for the court, and not for the jury; and the court’s decision as to the question will not be revised, unless it is clearly made to appear to have been erroneous. It follows that there Avas no error in the court’s ruling upon the objection made by the State. The same may be said with reference to the ruling of the court on the objection of the State to the question propounded by the defendant to the witness Cowan. This disposes of the 15th and 16th assignments of error.
The question asked by the defendant of witness, Ophelia Holdness, and to which the court sustained an objection, is so patently illegal as to require no consideration.
The two questions asked Dr. Hagler, with reference to neuralgiain the parent manifesting itself in the offspring, asumed that the parent Avas, or had been, afflicted with
Dr. Hagler as an expert, having testified in answer to a hypothetical question, that, under the hypothesis stated, he would say the person was of unsound mind, it ivas proper on cross-examination for the State to test the accuracy of his information as to the cause of insanity. The jury is not concluded by the opinions given by experts on the question of sanity vel non, and while the court pronounces upon the competency of witnesses as experts, it is the province of the jury to measure the Aveight of their opinions; in order that the jury may have a proper appreciation of the value of such opinions, it is entirely competent to develop on cross-examination the extent and accuracy of the expert’s knowledge of the particular subject upon which he has been called to testify, as an expert. The court committed no error in allowing the question — McAlister’s case, 17 Ala. 434; Parrish’s case, supra; Washington v. Cole, 6 Ala. 212; Tullis v. Kidd, 12 Ala. 648; DePhue’s case, 44 Ala. 32; Birmingham Railway & Electric Co. v. Ellard, 135 Ala. 433.
Several hypotheti cal questions Avere propounded to Dr, Hagler on cross-examination by the solicitor. To each of the questions the defendant interposed a general objection.
In the case of Sanders v. Knox, reported in 57 Ala. 81, the court, through Brickell,, C. J., said, “A general objection to evidence cannot be sustained, unless the evidence is manifestly illegal and irrelevant and apparently incapable of being rendered admissible in connection with other evidence. Such objections may mislead the party against Avhom they are taken and the court, and lead to the practice of making objections in this court, which, if made in the primary court, would have been obviated.” “Undefined objections should never be made to the admission of evidence; and it may be laid down generally, that, if the party making them Avill not particu
The above ruling disposes of the 21st, 22d, 23d, 24th and 26th assignments of error.
The court allowed the solicitor, against a general objection made by defendant, to- ask Dr. Hagler if insanity could be simulated; the witness answered, “I don’t know.” There is no merit in the 27th assignment of error relating to this matter; if it should be conceded that the objection was good, the answer to the question was harmless.
We have carefully examined the questions presented by the 28th, 29th, 30th, 31st, 32nd, 33rd, 34th, 35th, 36th, 37th and 38th assignments of error, which relate to the court’s rulings on the edmissibility of evidence, in the examination of witnesses, Bob Franklin, N. J. Moore, E. Knight and Carrie Jones, and conclude that the court’s rulings with reference to these questions are correct, even if objections had been particularized. The objections, however, were all general.
We cannot say that the court erred in allowing James Kent, a witness for the State, wlm testified that he had known the defendant from his childhood and had talked with him five times since July, 1903, and that the last conversation he had with him was on January 4th or 5th, 1904, to testify to the sanity of the defendant. The rule with reference to the competency of witnesses called to testify to the sanity of a person is not so exacting as it is with reference to those called to show insanity. — Ford’s case, 71 Ala. 385; Parson’s case, 81 Ala. 577; Caddell’s case, 129 Ala. 65; Parrish’s case, supra. In Parrish’s case, the rules applicable to the competency of witnesses, expert and non-expert, upon the question of insanity, have been carefully and succinctly stated and the authorities collated.
The b.ll of exceptions states that the defendant asked the Avitness Kent, on cross-examination, four or five times Avhether he could say that, during the month of December, 1903, and January, 1904, the defendant Avas insane at intervals; and that the Avitness ansAvered each time that he could not sa.y that, from his knowledge and acquaintance and talk AAdth him, he was of a sound mind. The bill of exceptions then states that the court declined to permit the same question to be put to the witness again as an unnecessary consumption of time, and the defendant duly, excepted. We fail to see any merit in the exception. A party has no right to delay the court with unnecessary questions. The Avitness had sufficiently answered the question, and the defendant lost nothing by not being allowed to haAre the Avitness answer again. Parrish’s case, 139 Ala. on page 41.
The evidence of the Avitness Sandy Pettus, objected by the defendant, was not strictly in rebuttal, but it was wlthin the discretion of the court to alloAV evidence, which, competent otherwise, Avas not in rebuttal. And the court’s exercise of this discretion is not renewable here. No other specific ground of objection was made and the statements testified to Avere shown to have been voluntarily made.. Hence, the court’s ruling Avith reference to the evidence was free from error.'
The exceptions reserved to the court’s rulings on the objections made by the defendant to the two questions propounded by the State to Dr. McAdory, to-wit; “Did you ever treat him at any other time?”, “What were the character of your conversations?”, and the exceptions re-' served to the rulings with reference to the evidence of witness Holey, are so obviously devoid of merit as to require no discussion of them.
To the hypothetical question asked Dr. McAdory by the solicitor, the defendant interposed an objection and particularized four grounds for the objection, namely,
Dr. McAdory testified on the direct examination, that he ivas a practicing physician and had been such since 1897. That he was assistant county physician and had seen the defendant a number of times in the county jail. That he treated the defendant for a severe cold which turned out to be measles, and that he treated him again a few days before the trial. He further testified, that he saw the defendant often in the jail and talked with him, he supposed, a dozen times; that his conversations were chiefly about his physical condition. That from his acquaintance with, observation of the defendant, and from his professional knowledge, he would say that the defendant was sane. On cross-examination the defendant asked Dr. McAdory this question; “Are you an-expert ,on insanity?” We have been unable to find any case in which the precise question presented has been considered. It is undoubtedly the law that the court must determine the quest'on of the competency of a witness to- testify as an expert and that ail evidence which goes to the competency of such witness should be addressed to the court. It is also true, that after a witness has been held competent bv the court it is the province of the jury to determine the weight of the evidence of such witness, and as we have niled in a previous part of this opinion, a jury is not concluded by the opinions of experts, but must weigh such opinions in connection with the other evidence, and, in order to afford the jury ample opportunity to test the value of such opinions, it is competent on cross-examination to inquire of the expert as to the extent and aeca
Charges numbered 1 and 4, refused by the court, were properly refused under the following authorities. Lide’s case, 133 Ala. 64; Porter’s case, 135 Ala. 51; Kroell’s case, 139 Ala. 1; Parrish’s case, supra,; Code, §4938.
Charges 2, 3 and 5 were properly refused; they each leave out of consideration the evidence which tended to show the sanity of defendant, thus singling out a part of the evidence. They also possessed the vice of being argumentative. — Hussey’s case: 86 Ala. 34; Fountain’s case,
Under the evidence in the case there was nothing to warrant the court in charging upon the law of manslaughter ; the defendant was either guilty of murder, or he was not guilty hy reason of insanity, and the court was under no duty to charge the law of manslaughter.
We find no error in that part of the oral charge of the court relating to the definition of insanity, and the exception thereto was without merit. — Parrish’s case, supra.
The court said to the jury in the oral charge, “The jury should be careful that it (meaning insanity or the plea of insanity) is not used as a means to evade the law as well as to see to it that a person irresponsible should not be punished.”
We are not informed by the bill of exceptions of the connection in which the above fragment of the oral charge was given. But however that may be, we do not think that the court breached the rules of judicial propri- . ety in thus cautioning the jury. The cautionary remark did not present one side more prominently than the other, by it the jury was simply cautioned that they might not allow an error to creep into their finding one way or the other.
We have found no error in the record, and the judgment of the court below is affirmed.
Affirmed.