40 S.W. 1000 | Tex. Crim. App. | 1897
Lead Opinion
W.E. Burt was convicted in the District Court of Travis County of murder in the first degree, the jury assessing his punishment at death. The evidence in this case, though circumstantial, establishes beyond all controversy that appellant killed his wife and two little children. This being the case, under the circumstances attending the homicide, he was evidently guilty of murder of the highest degree, if sane. The defense was insanity.
First error assigned: It appears that counsel for the State submitted to the expert, Dr. Wooten, a hypothetical case, and then asked his opinion as to the sanity or insanity of the defendant. Dr. Wooten answered that he believed him sane. Counsel for State then submitted to the expert, a case based on all of the evidence, and received the same answer. Counsel for defendant then submitted his hypothetical case, and obtained from Dr. Wooten the answer that in his opinion the defendant was insane. As appears from the bill of exceptions, full opportunity was given defendant to obtain the opinion of the expert upon any hypothesis supported or inferable from any evidence in the case. Notwithstanding appellant submitted his case to the expert, and counsel for State submitted its case, yet appellant objects, because the opinion was obtained before a full case had been submitted. What, therefore, are the rules governing this proceeding? The Supreme Court of Indiana, speaking through Coffey, J., in the case of Davidson v. State, 135 Indiana, 261, 34. N.E. Rep., 972, say: "In the examination of expert witnesses, counsel may embrace in hypothetical questions such facts as he may deem established by the evidence, and, if opposing counsel does not think all the facts established are *434
included in such question, he may include them in questions propounded on cross-examination. Any other course would result in endless wrangles over the questions as to what facts were and what were not established." Citing Goodwin v. State,
Counsel for appellant do not contend that the State did not submit to the expert a full case as the basis of his opinion, and, if this contention is made, it is not true. The contention is that counsel for the State submitted a case based upon its testimony, exclusive of that for the defense, and obtained the opinion of the expert, and then proceeded to submit to the expert a case based upon all the evidence, and that the opinion should not have been given until a full case had been submitted. Not that a full case was not submitted, but that it was not submitted until after an answer was given by the expert. Nor is it contended that counsel for defendant did not submit a full case to the expert, and obtain his opinion thereon. The bill of exceptions shows that this was done. Now, then, a case based upon all the evidence was presented to the expert by counsel for the defendant, as well as counsel for the State. This being so, we can not hold that the answer which was obtained under the above circumstances should be held error for which this judgment should be reversed. Suppose counsel stating the hypothetical case should, unintentionally or through ignorance, omit to embrace therein a fact relevant to the question of sanity, and the opposing party should object, because all the facts are not embraced within the hypothetical case, calling attention to no fact omitted, would he be permitted to complain? Should the judgment be reversed because of such error, if this should be error? Certainly, no. If every fact which is relevant must be included in the hypothetical case *435 to authorize an answer from the expert, then, we assert, there are but few lawyers, if any, in this State or elsewhere, who have the capacity to correctly submit a hypothetical question of this character. Take a case in which there are a great number of witnesses, each swearing to acts and conversations of the accused covering a great number of years, to all manner of social and business transactions, to his facial expression, etc. Who would be able to cull from this huge mass of testimony that which was relevant to the question of sanity, and submit it to the expert, without omitting some fact that perhaps would be pertinent to the issue of sanity? Failure would be inevitable, and to permit the opposing party to object because all of the facts were not embraced in the hypothetical case, and on appeal reverse the judgment on this account, would result in the reversal of all judgments in this character of cases, or altogether deprive the party of the benefit of expert testimony on a hypothetical case. This being the probable result of such a rule, with much greater reason should we hold, where, as in this case, a full case has (whether by the State or the defendant) been submitted as the basis for an answer, that there would be no error, and especially no reversible error. We are not treating of a case in which the expert gave an opinion without hearing all of the evidence. This was the question discussed in Webb v. State, 9 Texas Criminal Appeals, 490, and in Leach v. State, 22 Texas Criminal Appeals, 279, referred to by counsel for appellant. Judge White, in his opinion in the latter case, says: "Where the expert has not heard the evidence, each side has the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence, and, if meagerly presented in the examination on one side, it may be fully presented by the other; the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted." It would seem that the learned judge below had this case in mind in the trial of the case now before us.
Miss Carrie Sparks testified for the State that she knew where defendant lived on the 24th day of July, 1896; that, about 7 o'clock p. m. of said day, she was passing said house, and heard a voice — a woman's voice — pitched high, saying, "I am not going to stand this thing any longer." That she was positive as to the day, and the high tone of the voice. Counsel asked the court to note their exception to this evidence, because the same was not in rebuttal. The court replied that no objections had been made. Counsel for defendant then moved to exclude the evidence, because not in rebuttal. This the court refused to do. In this there was no error, because the court had the discretion to receive evidence until the argument was concluded, whether in rebuttal or not.
O.H. Gibson was permitted to relate to the jury a business transaction which he had with the defendant. The transaction occurred a few days before the homicide. Counsel for defendant objected, because the predicate laid by the testimony of the witness was not a sufficient basis to authorize an expression of opinion as to the sanity of defendant. This objection was overruled, and witness answered that, in his opinion, defendant *436 was then sane; that is, at the time of the transaction. To this bill of exceptions the learned judge appends the following explanation. "That said witness was asked his opinion as to defendant's sanity at the time of his conversation with him about the check on Wednesday before July 24, 1896, and witness detailed at length the facts upon which he based his opinion, as is set out in statement of facts much more fully than in this bill, and answered that, upon the facts detailed, defendant was, in his opinion, at that time, sane." We are not required to consult the statement of facts to verify the judge's statement. If counsel for the accused were not satisfied with this statement, they should have inserted in the bill of exceptions all that Gibson stated. But, if the testimony of this witness is looked at, it will be found that, though not an expert, he was qualified to give an opinion as to the sanity of the defendant. This is not like the Williams Case, 37 Texas Criminal Reports, 348. In that case no facts were stated by the non-experts as the basis of their opinion. Here the witnesses gave a very full detail of such facts.
R.A. Rutherford was permitted to give his opinion as to the sanity of the appellant. Counsel for appellant made the same objection to this witness as he did to the testimony of Gibson, above, and the learned judge gives the same explanation to the bill of exceptions. In regard to this bill we make the same observations as with reference to Gibson's testimony above, holding that he very clearly qualified himself to give an opinion on the sanity of the accused.
Counsel for appellant proposed to read certain excerpts from standard works on medical jurisprudence and the disease of insanity. The State objected, and the court sustained the objection, and defendant reserved his bill of exceptions. We have carefully read the brief of appellants on this phase of the case, and, while counsel seem very confident that the court committed an error in rejecting these excerpts, they cite no authority in support of their contention. We have no statute on this subject. The rules of evidence known to the common law of England must therefore prevail. What is the common law upon this question? In Reg. v. Crouch, 1 Cox, Cr. Cas., 94, the prisoner was indicted for the willful murder of his wife, and the defense set up was insanity. We quote the case in full: "Clarkson, for the prisoner, in his address to the jury, attempted to quote from a work, entitled 'Cooper's Surgery,' the author's opinions on the subject. Alderson, B., thought he was not justified in doing so. Clarkson: I quote it, my lord, as embodying the sentiments of one who has studied the subject, and submit that it is admissible in the same way as opinions of scientific men on matters appertaining to foreign law may be given in evidence. Alderson, B.: I should not allow you to read a work on foreign law. Any person who was properly conversant with it might be examined, but then he adds his own personal knowledge and experience to the information he may have derived from books. We must have the evidence of individuals, not their written opinions. We should be inundated with books if we were to hold otherwise. Clarkson: I shall prove the book to be one of high authority. Alderson, *437
B.: But can that mend the matter? You surely can not contend that you may give the book in evidence, and, if not, what right have you to quote from it in your address and do that indirectly which you would not be permitted to do in the ordinary course? Clarkson: It was certainly done, my lord, in M'Naghten's Case [10 Clark F.]. Alderson, B.: And that shows still more strongly the necessity for a stringent adherence to the rules laid down for our observance. But for the noninterposition of the judge in that case, you would not probably have thought, it necessary to make this struggle now." The case of Reg. v. Taylor, 13 Cox, Cr. Cas., 77, was another murder case. The deed was done by cutting the throat of the deceased in the presence of only a child about 9 years old. Counsel for the defense, in addressing the jury, set up insanity on the part of the prisoner, and proposed to read a case from Taylor's Medical Jurisprudence. Brett, J., says: "That is no evidence in a court of justice. It is a mere statement by a medical man of hearsay facts of cases at which he was in all probability not present. I can not allow it to be read." In line with this common-law rule will be found the cases following: Ashworth v. Kittridge, 12 Cush., 193; Boyle v. State,
Counsel proposed to read the same excerpts from these standard works in explanation and elaboration of his argument. The court refused to allow this to be done, and defendant reserved his bill of exceptions. The authorities cited on the preceding question are in point, and, in addition, we cite People v. Wheeler,
Dr. Davis was placed upon the stand as a witness for the State, and after proving his acquaintance, etc., with the defendant, he was permitted to testify that the defendant was simulating; that is, playing a part, and not acting naturally. This was objected to by defendant, "because immaterial, and it would throw no light to the jury by which to read a solution of the question of guilt or no guilt in defendant as to the issue before the jury, to wit, sanity or no sanity in the defendant on the 24th of July, 1896, the day of the alleged offense for which defendant was on trial; that simulation or no simulation at this time, and in the present surroundings of defendant, would not help to aid the jury in determining whether this defendant was sane or insane on the 24th day of July, 1896, when the offense for which he is on trial was alleged to have been committed. All objections were overruled, and the exception reserved." The learned *438 judge qualifies this bill of exceptions by stating "that the witness testified that he had carefully observed the defendant and his demeanor during the trial, which had lasted about seven days; that he had qualified himself as an expert previously; and that the defendant himself had offered in evidence the manner and appearance of the defendant, the way he demeaned himself during the trial, as an evidence of his insanity at the time of the trial. The defendant had demeaned himself quite unusual to an ordinary individual on such a trial, and under these circumstances the evidence as to whether or not he was then intentionally trying to play a part or simulate insanity was admitted, and this question was put to witness after the hypothetical question stated in other bills had been answered by him." From this explanation it appears that the appellant entered this field of evidence by offering testimony of his manner and appearance and demeanor during the trial, as evidence of insanity at that time. Unquestionably, the State could follow him, and introduce evidence as to this same matter. It was evidently the purpose of the appellant, when introducing this evidence, to convince the jury that, as he was then insane, the probability was that he was insane at the time of the homicide. The court was clearly right in admitting this testimony.
The hypothetical question was also submitted to this witness, and he answered that, in his opinion, the defendant was sane on the 24th day of July, 1896. The objections here raised are the same as those presented with reference to the hypothetical question submitted to Dr. Wooten, and treated in this opinion above, and therefore we will not go over this discussion again.
It appears from a bill of exceptions that, at the request of appellant, Dr. Wooten and others went to the jail, and took the dimensions of the skull of the defendant, and, while there, examined the defendant, talked to him, looked at him, and observed him. The State proved by Dr. Wooten that it was his opinion that defendant was sane at that time. This bill of exceptions refers us to the statement of facts. When we consult the statement of facts, we are clearly of the opinion that the observations of defendant by Wooten were amply sufficient to warrant him in giving an opinion and there was no error in admitting his testimony. Another bill of exceptions was reserved to the testimony of Dr. Wooten as an expert as to the sanity of the defendant, but, when considered in the light of the explanation of the trial judge, it presents no error whatever.
Jack Hughes was placed on the stand for the State, by whom it was shown that he had noticed the fact that the defendant had struck his head against the window frame the day before, as he passed through the window, and that it was the only time the defendant had done so in the many times he had passed through said window during the trial. It appears that the defendant had offered in evidence the appearance of himself during the trial, his manner of coming in and going out of the courtroom, etc., as shown by the statement of facts. This presents the *439 same question that we have discussed above in relation to the defendant simulating insanity. We find no error in this matter.
After proving by Dr. Smoot that he was 50 years of age, a minister of the gospel, and, as such, serving the Presbyterian Church in the city of Austin for twenty years, and that he had read some authors on moral and intellectual science, but nothing on insanity or medical jurisprudence, the appellant proposed to prove by him that, in his opinion, the defendant was insane on the 24th of July, 1896, the day the offense is alleged to have been committed; and the State objected, because Dr. Smoot was not an expert. The court refused to permit the witness to testify on this phase of the case, and we think the ruling was correct. This witness was offered as an expert, when in fact he was not an expert. It was not proposed to prove his opinion as to whether defendant was sane or insane from what he knew of the defendant, his associations with him, etc., but simply to obtain his opinion as an expert.
We are not informed of any case holding that because a prisoner is in jail, unwarned, therefore his conduct can not be observed, so that the expert can give an opinion as to his sanity. It would be a remarkable case, indeed, in which the accused, if insane, would simulate sanity. We can not comprehend how the fact that he was in jail could, affect his conduct in this particular in any manner, and therefore the ruling of the court in regard to the testimony of Dr. M.M. Smith was correct. See Adams v. State,
The matters contained in the bill of exceptions in reference to the testimony of Dr. Goodall Wooten have been disposed of in treating of the bill of exceptions relating to the testimony of Dr. Wooten, hereinbefore discussed.
The objection to the testimony of R.E. White, sheriff, is not well taken. He had warned the defendant, and, after being warned, anything that the defendant stated to him was admissible, and he had a right to give his opinion as to the sanity of the defendant. Having stated detailed conversations, facts, acts, and his observations of the defendant, he was qualified to give an opinion. In addition to this, we will not be forced to peruse the statement of facts in order to ascertain whether the witness qualified himself or not. As before stated it is the duty of counsel for appellant to set forth the facts in the bill of exceptions. But, to satisfy ourselves that the learned judge acted properly, we have examined the testimony of this witness in the statement of facts, and find him qualified as a witness.
Objection was made to the charge of the court. We think the charge is an admirable one. It was the duty of the court, in defining murder in the first degree or murder upon express malice, to charge the jury: "Do the facts and circumstances in this case show such a reckless disregard of human life as necessarily includes a formed design against the life of the person slain? If they do, the killing, if it amounts to murder, would be upon express malice." This charge is amply supported by a number of authorities. If sane, it would be almost morally impossible for the *440 homicide to be committed, under the circumstances in this case (the prisoner having slain his own wife and two little children) without it being upon express malice. This homicide, with its attending circumstances, evinces a reckless disregard of human life, which is the conclusive evidence of express malice. There was no passion attending this homicide, and the defendant's mind was in the same condition when he killed his wife as it was when he killed his two little children. We are of the opinion that the charge is eminently correct when viewed as a whole.
A number of methods, modes, and instruments were alleged to have been used in the perpetration of the crime. The indictment alleges that it was "by then and there striking, beating, and wounding the said Anna M. Burt upon her head and face, with a hatchet and some heavy instrument, a better description of which the grand jurors are unable to give, thereby fracturing the skull and the bones of the face of the said Anna M. Burt, and by then and there tying tightly around the throat and neck of said Anna M. Burt a handkerchief, thereby strangling and suffocating the said Anna M. Burt, and by then and there wrapping around the head and body of said Anna M. Burt a blanket, and securely tying same thereon with rope, and then and there throwing said Anna M. Burt, so wrapped and tied, in a cistern partially filled with water, sufficient to submerge the body of said Anna M. Burt." This indictment is correctly drawn. Where there is doubt about how the death was produced, it is well to put every means suggested by proof in the indictment; and, if proof be made of one of the means, it is unnecessary to prove them all. It is not necessary to cite any authority to sustain this proposition.
If there was any error in the charge of the court, it consists in the fact that the court submitted murder in the second degree to the jury. We believe this practice, however, to be correct, prudent, and safe. The charge upon this subject is the law, not obnoxious to any objection.
The court gave the usual charge in regard to the burden of proof applicable to a case in which the accused relies upon insanity, charging that the burden was upon the accused to show his insanity. My opinion upon this subject has been expressed, and I can add nothing to what I have said, in the King Case, 9 Texas Criminal Appeals, 515; but the majority of this court hold that the charge upon this subject as submitted to the jury in this case is correct. The rule in Texas is unbroken in support of the charge as given in this case upon the question of insanity. If the burden is upon the defendant to etablish insanity, he is not entitled to reasonable doubt upon this proposition. If the burden be upon the State, then he might claim that the State should be required to establish sanity beyond a reasonable doubt; but, being upon him, he must discharge the burden, and satisfy the jury that he was insane. He need not do this beyond a reasonable doubt, but this must be done.
Counsel for appellant insist that, notwithstanding the enormity of the acts imputed to appellant, yet he was entitled to a fair and legal trial, and that, if he has not had such trial, the judgment should be reversed. *441 We indorse this proposition to the fullest extent, and, if we believed that any error had been committed in this trial in the least calculated to prejudice the rights of the accused, we would not hestitate to say that the judgment should be reversed; but we are of opinion, after a careful examination of this record and close attention paid to the argument of the learned counsel for the defense (than whom we have no superior), that the appellant has received a fair and legal trial. The question of fact whether the appellant was sane or insane was submitted to the jury. The evidence is conflicting. We are of opinion, however, that the great weight of the testimony is in favor of the sanity of defendant; but be this as it may, the jury has settled the question, and we think they have settled it properly.
We are of opinion that the judgment should be affirmed, and it is accordingly so ordered.
Affirmed.
1. The court misconstrued the record on the first ground discussed by the court and urged by appellant for a reversal of the case, viz., that growing out of the hypothetical question put to the expert witness, Dr. Wooten, by the State; in that the statement in the opinion is not borne out by the record, as will be more fully set out in the accompanying statements and arguments.
2. The court erred in not sustaining appellant's contention growing out of bill of exceptions 3, in that the court does not deal with the real question that springs therefrom, but confines itself to only one question, and leaves undiscussed and undecided the main question, viz., whether the testimony objected to was admissible against defendant as original evidence, and whether, if not, it should not have been withdrawn on the motion of defendant so to do.
3. The court erred in not sustaining the objection to the testimony of O.H. Gibson, as made by bill of exceptions number 1, subdivision 2, because his acquaintance with appellant was not of that full and intimate character which would authorize him to give an opinion on facts. The substance of what he testified as to facts was embraced in the bill, and this court was misled by the qualification of the trial judge to said bill by his referring to the statement of facts, and the court was in error in not turning to the statement of facts when reference is made thereto in any part of the bill. Penal Code, art. 686; Rev., Stats., art 1362.
4. The court erred in like manner in regard to the question raised over the evidence of R.A. Rutherford and for the same reason as raised in subdivision 1 of bill 1. *442
5. The court erred in not sustaining the objections to the testimony of Dr. Davis as shown by bill of exceptions number 4, because the court in the first place misconstrues the record, and consequently misstates the conditions surrounding the status of the case, when the question as to simulation of appellant during the trial was put by the State. Defendant had never "entered the field of evidence by offering testimony of his manner, appearance, and demeanor during the trial, as evidence of his insanity at the time." The court was misled by something that is not in the record; and second, the court fails to discuss or decide the questions springing from said bill in regard to the hypothetical case or question put to said witness. This court is in fatal error when it parallels the question arising from bills taken to the testimony of Drs. Wooten and Davis. A moment's glance at them demonstrates the difference. The Wooten bill (number 2) is made to speak through the qualification thereof by the court, viz: He makes the same qualification to this bill as he does to the bill taken as to the Dr. Davis testimony, and then proceeds: "The State, after asking a hypothetical question based on her testimony, further asked the witness his opinion based upon a hypothetical case, embodying all the evidence in the case." The qualification to the Davis bill, number 4, was as follows: "And the court stated to counsel that the State would be allowed to state a hypothetical case, based upon the assumption that her testimony was true, and embracing all the evidence for the State, and to ask the opinion of the witness based upon such hypothesis, and that the defendant would be allowed to state a hypothetical case, based upon the assumption that his testimony was all true, and on all reasonable inferences to be drawn from such testimony, and to express his opinion upon such hypothetical case. The State embraced all its testimony in its hypothetical question, and upon the assumed truth of said question the witness stated in his opinion that the defendant was sane. The defendant then put his hypothetical case to the witness based upon the assumption that all of his testimony was true, and based on the assumption that all reasonable inferences to be drawn from his testimony were true, including the fact that defendant, without motive, reason, or cause, killed his wife and children, upon which question witness answered that upon such hypothesis the defendant was insane. All the evidence was embraced and included in the State's hypothetical question and defendant's hypothetical question combined.
6. The court erred in holding that the examination of Dr. Thomas D. Wooten of defendant in the jail, when his sole business there was to measure his head, was sufficient to authorize him to speak as to the mental condition of the defendant four months before.
7. The court erred in holding the testimony of Jack Hughes admissible in presence of bill of exceptions taken concerning same.
The court misapprehended the conditions surrounding the case at the time, and gives reason for its decision of this point that are not in the record, viz., that defendant had entered into the domain of testimony to show that he was insane during the trial. *443
8. The court misapprehended the record in discussing the question raised by bill in regard to the witness Dr. Smoot. He was used as a lay witness, and then sought to be used as an expert when the bill arose.
9. The court erred in sustaining the charge of the trial court, wherein the court charged that the jury might infer express malice if the killing and the manner of it showed a reckless disregard of human life.
This not being a killing where such a charge has a place, it is not believed that this part of the decision was well considered. The charge is a misapplication of the law, and was ruinous to defendant on trial.
10. The court erred in failing to pass on subdivision 11 of the court's charge, where the court uses the language: "Or if the said defendant did with malice aforethought so kill said Anna M. Burt," which defective charge was expressly arraigned as authorizing a verdict of murder in the first degree, on implied malice, that is, malice aforethought, and not express malice aforethought. The court failed to consider said error.
The said error in the charge was fatal to defendant. It allows of no construction save that given it by the defendant, viz., to convict him of murder in the first degree on implied malice, and the court erred in not so holding and reversing the case therefor.
The court erred in not holding that it was not error in the trial court, in holding in its charge that where insanity is set up as a defense the burden of proof is not on the State but on the defendant.
The court further erred in upholding the charge of the trial court which placed the burden of proof on the defendant, on the issue of insanity, because the statutes of Texas provide that the rules of evidence known to the common law, in respect to the proof of insanity shall be observed in all trials where that question is at issue, and the rule of the common law on that subject, as declared by the Supreme Court of the United States, a common law court, is that the burden of proof in such cases is on the State; that such decision of the Supreme Court is of the dignity of a law, is the supreme law of the land, and appellant claims the benefit and protection thereof. Vide section 40, Penal Code of Texas, and Davis v. United States,
(1.) It shifted from the State, upon which same always rests, the burden of proof of criminal charge against appellant, and in effect requires him to establish his innocence (irresponsibility) for an offense of which he had not been proven guilty; until he was beyond a reasonable doubt proven guilty of some crime, he was presumed to be innocent thereof.
(2.) It abridged his immunity, as a citizen of the United States in that behalf, i. e., to be presumed innocent until the State had proven, beyond a reasonable doubt, against him every material element, including *444 his sanity or mental responsibility necessary to establish the offense with which he was charged.
(3.) It deprived or tended to deprive him of his life without due process of law; and,
(4.) Denied to him the equal protection of the law; for it required him to disprove an offense not yet proven against him, a burden not imposed on appellant equally with all other persons charged with crime under the laws of the State of Texas.
In view of all the facts — the gravity of the questions involved — the importance of their right decision to appellant — being no less than his life — he asks that his counsel may orally argue this motion, and that a rehearing may be granted to him.
[NOTE. — This motion was supplemented by a most able brief and argument upon all the points submitted, which, owing to its length, can not be reproduced, to the regret of the Reporter.]
Concurrence Opinion
I concur in the conclusions reached by the presiding judge. As to whether the bill of exceptions in regard to the testimony of the expert witness Dr. Davis is complete, so as to raise the question at issue, I simply quote the qualification of the trial judge to said bill: "The evidence in the case was very voluminous, and in part contradictory. The fact of the killing itself, relied on by the defense as one of its strongest, if not only, ground showing insanity, was one of the disputed facts in the case, provable only by circumstances, and it was impossible to form a hypothetical case assuming all the evidence in the case to be true, because there was no direct evidence of the killing, and said testimony was contradictory in part; and the court stated to counsel that the State would be allowed to state a hypothetical case based upon the assumption that her testimony was true, and embracing all the evidence for the State, and to ask the opinion of the witness based upon such hypothesis; and that the defendant would be allowed to state a hypothetical case based upon the assumption that his testimony was all true, and on all reasonable inferences to be drawn from such testimony, and to express his opinion based upon such hypothetical case. The State embraced all its testimony in its hypothetical question, and, upon the assumed truth of said question, the witness stated his opinion that defendant was sane. The defendant then put its hypothetical case to witness based on the assumption that all his testimony was true, and based on the assumption that all reasonable inferences to be drawn from his testimony were true, including the fact that defendant, without reason, motive, or cause, killed his wife and children, upon which question witness answered that upon such hypothesis he would say the defendant was insane. All the evidence was embraced and included in the State's hypothetical question and defendant's hypothetical question combined." It will be seen from this statement of the judge that two hypothetical questions were stated — one based upon the evidence for the State, and the other based upon the evidence for the defendant. The expert witness answered upon the State's hypothetical question that the defendant was sane, and upon the hypothetical question put by the defendant that he was insane. Taking these answers, we are forced to the conclusion that the testimony was not only incongruous and contradictory, but led the mind of the expert to two different conclusions. Under such a state of case, it is evident that a hypothetical case embracing all the facts adduced on the trial in this respect could not be answered by the witness without first having decided in his own mind the credibility of the witnesses testifying to such facts. This, of course, he could not do. The credibility of the witnesses *454
and the weight to be given their testimony in this State is entirely within the province of the jury. Then, we have the question as stated in the opinion of the presiding judge sharply presented, because no hypothetical question was put to the witness covering the entire testimony adduced in relation to insanity. The question, then, is as to whether the expert witness can be asked hypothetical questions involving the different theories, without requiring him in one question to pass upon all the testimony adduced. It is conceded by Judge Henderson that, if the testimony is incongruous and contradictory, hypothetical questions can be asked, presenting the different theories, and the witness be required to state his opinion on each. I agree with the presiding judge that this can be done in either event, whether the facts are disputed or not. If this were not true, there would be endless confusion and interminable discussion as to what are the facts, or whether the facts are incongruous or not. That the hypothetical questions may be put to the witnesses in this manner is sustained by the weight of authority, and is the sounder rule. In support of this proposition, I refer to Shirley v. State,
Addendum
The judgment in this case was affirmed at the Austin term, 1897, of this court, and the case comes before us now on, motion for rehearing by the appellant.
In the original opinion we discussed the question as to whether or not expert opinion could be obtained upon a partially stated hypothetical case, this question being discussed with reference to the bill of exceptions in regard to the testimony of Dr. T.D. Wooten. The same subject was presented in a bill of exceptions in regard to the testimony of Dr. Davis. We disposed of the question presented in the bill of exceptions with reference to the testimony of Dr. Davis by reference to what we had said in regard to the bill of exceptions as to Dr. T.D. Wooten's testimony. Counsel for appellant, on motion for rehearing, insists that there is a very material difference in the bills of exception. From the record it appears that Dr. Wooten was introduced by the State, and a hypothetical case submitted to him, and that this question did not include all of the evidence bearing upon the question of sanity. Dr. Wooten answered the question that, in his opinion, defendant was sane. Afterwards the State asked the witness his opinion based upon a hypothetical case embodying all the evidence in the case, upon which the witness expressed the same opinion as upon the State's first question; that is, that appellant was sane. Appellant then put a hypothetical question to the witness based upon his theory of the case, and upon which the witness answered that the defendant was insane. A full opportunity was allowed to get the opinion as to the defendant's sanity based upon any hypothesis to be inferred from any evidence in the case. The objection to this procedure was that the State obtained the witness' opinion upon an incomplete hypothetical case. Let us concede for the argument that the full case, containing all the testimony, offered either by the State or the defendant, must be embraced in *445 the hypothetical case; still, if this was not done, no complaint can be urged by appellant in regard to the testimony of Dr. Wooten, because after the defendant had submitted his hypothetical case, the witness answered that, in his opinion, the appellant was insane. Upon no ground of reason or common sense could appellant be heard to complain of this matter in the shape presented by this bill. Appellant was permitted to form a hypothetical case, not alone upon his testimony, but upon any and all the testimony introduced upon the trial. When the whole case was put, the witness answered that his opinion, was that defendant was sane. When the defendant's case, based upon the testimony offered by him, was put to the witness, he answered that defendant was insane. But it will be observed that the bill shows that the State submitted the whole case, and upon which the witness answered that defendant was sane. We can not comprehend how appellant can complain of this. As to the contention of appellant that the opinion was only upon a partial or incomplete statement of the case, we will treat of this subject when we reach the bill of exceptions pertaining to the testimony of Dr. Davis.
It occurs by a bill of exceptions that Dr. Davis was introduced as an expert; that the State submitted a hypothetical case based upon its testimony bearing upon the question of sanity, and obtained the answer that appellant was sane. The defendant objected, because all the testimony bearing upon the question of sanity was not embraced in the hypothetical case put by the State; but the bill further shows that the defendant then put a hypothetical case to the witness, based upon the assumption that all reasonable inferences to be drawn from his testimony were true, including the fact that defendant, without reason, motive, or cause, killed his wife and children, upon which question the witness answered that, upon such hypothesis, he would say that the defendant was insane; that all of the testimony bearing upon the question of sanity was embraced in the State's hypothetical question and the defendant's hypothetical question combined.
We have presented to us the question discussed in the original opinion, in treating of the bill of exceptions pertaining to the testimony of Dr. Wooten, which is: Can the State submit a hypothetical case which does not include all the testimony bearing upon the question of sanity, and obtain an opinion from the expert; or must the question propounded contain all the evidence bearing upon the question of sanity, whether introduced by the State or the defendant, and believed to be true or false by the State? We hold, as we did in the original opinion, that the State can formulate a hypothetical case embracing such facts bearing upon the question of sanity as it deems proper and competent, and obtain the opinion of an expert. "We hold that, if the defendant is not satisfied with the hypothetical case submitted by State, he has the privilege of submitting his case, not only as embraced in his testimony, but upon any and all testimony introduced on the trial. Of course, if the case submitted by the State is unfair and unjust to the appellant, the court will correct this; and if the court fails to do so, and the defendant proposes to *446 submit a case embracing all the facts bearing upon the question, and he is denied this right, error would be patent.
Recurring to the bill of exceptions pertaining to the testimony of Dr. Wooten: If the last proposition be correct, the State was under no obligation, and was not required to submit the full case, but had the right to submit the case which it thought was supported by the testimony, and was not bound to submit a case involving testimony believed by the State to be false. And we repeat that the disposition of the bill of exceptions as to Dr. Wooten's testimony disposes of the bill of exceptions as to the testimony of Dr. Davis; for, if the State is not bound to embrace all the testimony bearing upon the subject, then it was not required to do so in reference to Dr. Wooten, but after having done so, appellant had no right to complain.
Now, we have this question: Is it necessary, in submitting a hypothetical case, for the State to include every particle of the evidence bearing upon the question of insanity, in order to obtain a legal answer from the expert? If so, the contention of the appellant in the Davis bill of exceptions is well founded; for that bill shows that the opinion was obtained from the expert upon a hypothetical case that did not embrace the theory of the defense, and did not embrace all the testimony bearing upon the question of sanity. The question therefore is: Must the hypothetical case submitted to the expert include all the testimony bearing upon the question of sanity, in order to obtain a legal and proper answer from the expert? In the original opinion we discussed this very question, and held that it was not necessary. We have seen nothing to change our opinion upon this subject. The authorities are just that way. But it is contended by counsel for appellant that we have settled the law to the contrary in Webb v. State, 9 Texas Criminal Appeals, 490; Leache v. State, 22 Texas Criminal Appeals, 279, and in Williams v. State, 37 Texas Criminal Reports, 348.
Now, we assert that the question here discussed has never been presented in any case before either the Court of Appeals, Court of Criminal Appeals, or the Supreme Court of this State. Counsel for appellant cites no case decided by the Supreme Court, but relies upon the cases of Webb v. State, Leache v. State, and Williams v. State, supra. What was the question before the court in Webb v. State, supra? It was as to whether or not an expert could give his opinion unless he had heard all the testimony bearing upon the question at issue. It was not a case in which the hypothetical case was submitted to an expert who had not heard the evidence. The question arose in this manner: Dr. Stone, witness for the defendant, heard all the testimony introduced on the trial, and gave as his opinion that he had heard no evidence of the insanity of the accused that could not be explained by other causes, such as indulgence in drink or debauchery. The State, upon cross-examination of Dr. Stone, asked what his opinion was, based upon the testimony of the witness Pool. Dr. Stone answered that from the evidence of Pool alone he would have considered Webb insane, and believed the mind of defendant, at the time the *447 particular offense was committed, to be more or less disturbed from some cause, but not to the extent to relieve him entirely from responsibility. In passing, the court say "that the witness had heard all the testimony in the case, and did not believe the defendant insane. This opinion, founded upon the whole testimony, must have included, and did include, the testimony of the witness Pool. If it did, then how could any injury result to defendant by asking, and that, too, upon cross-examination, the opinion of the witness upon the testimony of Pool alone, we confess we can not conceive. It would have been otherwise if the expert had not heard and formed his opinion upon the whole case; for in that case the question and answer would have been not only improper, but illegal and inadmissible." Now, it will be observed that in the Webb Case the hypothetical question was not propounded to an expert who had not heard the testimony, but the expert had heard all the evidence. It may be insisted that, if it is necessary for the expert to hear all the testimony before giving an opinion, therefore is absolutely necessary that the hypothetical case submitted to an expert who did not hear the testimony must embrace all the testimony bearing upon the question of sanity. We are not called upon to pass upon this question; but the reasons for the one rule will not apply to the other rule. Take the most enlightened expert, and let him hear all the testimony; he can arrive at a correct conclusion as to the sanity of the accused; and at the same time, if called upon to state all the facts from which he makes the conclusion, he would most generally fail. The impression from the facts is made upon his mind, without the ability to produce the facts in the statement. But, be this as it may, the question involved in the Webb Case is not the question before us. Now, it is true that Presiding Judge White in that case states that the full case must be submitted, and he asserts that all the authorities support this proposition. We find to the contrary, that the overwhelming weight of authority supports the proposition "that the State has the right to submit its hypothetical case, and, if the accused is not satisfied with it, he can state his hypothetical case." This proposition is conclusively established by the authorities cited in the original opinion; and, in addition to those, we desire to cite the elaborate opinion in the case of Coyle v. Commonwealth, 104 Pennsylvania State, 117. To be more explicit: "Each side has the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence; and, if meagerly presented in the examination on one side, it may be fully presented on the other, the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted." Now, the question presented to us is one in which the State presented its theory of the hypothetical case to the expert. (We are now treating of the bill of exceptions in reference to Dr. Davis' testimony.) The State had a right to select its theory of the evidence, and to base a hypothetical case upon that state of facts which the State thought to be true. The defendant had a right to submit a hypothetical case upon the state of facts which he believed to be true. Of course, if the statement of a hypothetical case for *448 the State was unfair and unjust to the appellant, and objections had been raised, the court would have controlled this matter; but that does not appear in this case. It would be almost impossible for the State to embrace all the testimony introduced in evidence in the hypothetical case, without impressing the jury with the fact that the State believed that all of the evidence and circumstances embraced in the case were in fact true. This would be a great injury to the State. It would be in the nature of a concession of facts which the State proposed to controvert. Nor would it be just to the defendant to require him to embrace all the facts in his statement — those which tended to show sanity as well as insanity — when he did not believe the testimony, and in fact proposed to impeach the witnesses swearing to the facts tending to show sanity in some manner, or to show that they were unreasonable and not in fact true. The record shows that a very full statement was made by the State presenting its theory of the facts believed to be true; and the record also shows that the defendant presented his theory of the case. This being so, the expert was in possession of the whole case as effectually as can be presented practically upon a trial of a case.
In the Leache Case, supra, the question was in regard to placing the experts under the rule. It appears from the record that the experts were placed under the rule, and did not hear the testimony of the other witnesses. Leache contended that this was reversible error; that he had the right to have the experts present, so that they might hear the testimony in order to give an opinion. Presiding Judge White states "that it was not shown that the hypothetical case presented to the expert was defective in not submitting all the facts essential to an intelligent opinion; nor that the opinion was such as would have been given differently had the evidence been heard directly by these witnesses, and their conclusions drawn from it, and not from the hypothetical statements of it. We can not perceive that the discretion of the trial judge was abused in the matter to the prejudice of the defendant; that is, that, in placing the experts under the rule, no prejudice therefrom was shown to have resulted to the appellant." That was the only question in judgment. The remarks of Judge White in regard to the rule were not called for or necessary to the disposition of the question raised; but he states, relying upon Coyle v. Commonwealth, 104 Pennsylvania State, 117, "that, where the expert has not heard the evidence, each side has the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence; and, if meagerly presented in the examination on one side, it may be fully presented on the other, the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted." The question involved in the Leache Case, supra, was simply the action of the court in putting the experts under the rule, and all of the observations made by the presiding judge in regard to the rules which control in submitting hypothetical cases to an expert were dicta. But he concedes that each side has the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence. This concession *449 is made in the face of the assertion that all authorities agree that it is inadmissible to permit an expert to give his opinion upon anything short of all the evidence in the case, whether he has personally heard it, or it is stated to him hypothetically.
In the Williams Case, supra, the only question before the court was as to the admissibility of the testimony of Dr. Armstrong, an expert, who testified that he had heard but a part of the testimony, but had read the newspaper account of the testimony of the witnesses on the question of insanity on the previous trial of the case. The court thereupon stated that the testimony was the same in the present trial, and permitted the witness, over the objections of appellant, to give an opinion as to the sanity of the defendant. We held in that case that the newspaper report was nothing but hearsay testimony, and that it was not competent for the judge to put such a hypothetical case to the witness. We stated, further, that, if the newspaper statement was eliminated, the witness was not authorized to give his opinion based only on having heard a part of the testimony of the witnesses. So the question here presented was not raised in said case, and what was said by us in referring to the Webb and Leache Cases, supra, was not at all necessary to that decision.
We misunderstood the bill of exceptions reserved to the testimony of Carrie Sparks. We thought that, the only objection urged to this testimony was that it was not in rebuttal; but, since our attention has been called to the bill in the motion for rehearing, we find that the appellant moved to exclude the evidence upon the grounds, condensely stated, of irrelevancy, that appellant was not shown to have been in the house, and a number of other objections. We therefore have the question as to whether or not, under the circumstances of this case, the evidence of this witness was admissible. When we look to the record, we find that the circumstances strongly tended to show that the appellant was at home. The evidence places Mrs. Burt there, as well as defendant, a short time after the expression was heard. This being the case, we are of opinion that the testimony was admissible, and have no doubt of its relevancy. It was conceded in the argument of appellant's counsel that defendant killed his wife and two children. About this there is no question. But it is contended that the evidence of this witness bears strongly on the question of sanity. We do not understand it in that way. The testimony shows that Mrs. Burt exclaimed, "I will stand this thing no longer!" To what "thing" she alluded is not disclosed. Whether it was the ill treatment of the husband, or whether it was the insane conduct of the defendant, is not shown. The exclamation may have been made because of the strange and unnatural conduct of an insane man, or might have been induced by the ill treatment of appellant towards his wife. We are left in the dark upon this subject. This exclamation could not have been made by the servant, for she was not at home; and the evidence shows no other female there except Mrs. Burt. Appellant insists, however, that the evidence fails to show that Burt was at home. The witness heard the exclamation *450 after 7 o'clock in the evening. It is shown that defendant was there between 8 and 9 o'clock. The exclamation was made at his home, and the conclusion is reasonable that it was made by his wife to him. Be this as it may, appellant concedes, and the unquestioned facts of the case demonstrate that he killed his wife and children. We might admit, but we do not, the incompetency of this evidence; and yet no possible injury could have resulted to appellant. It is a strained conclusion that the remark made by the female in the house tended to show the sanity of defendant, for, as before stated, it might have resulted from the insane act of the appellant. If the jury believed, as they had a right to believe, that the exclamation was made by the appellant's wife to defendant, clearly the evidence was admissible. If they did not so believe, then no harm resulted to the appellant. If the jury believed that the appellant was insane, or had a doubt about it, they may have concluded that the exclamation was made by the wife, because of some misconduct of her deranged husband, or, if they did not believe he was insane, that the remarks were made because of the ill treatment of the defendant. We are left in a field of speculation, but we can not perceive, conceding the inadmissibility of the testimony for the argument, how, under the facts of this case, appellant could have been injured; that he killed his wife and children being a conceded fact. Now, it must reasonably appear that the exclamation testified to by the witness Sparks tended to show sanity, and nothing else; and, unless this is made to appear, no injury could have resulted. But we are of opinion that the evidence was admissible, independent of these considerations.
The court instructed the jury upon the subject of express malice as follows: "(6) Express malice, which is absolutely essential to constitute murder in the first degree, exists where one, with sedate, deliberate mind and formed design, unlawfully kills another. (7) When an unlawful killing is established, the condition of the mind of the party killing, at the time, just before and just after the killing, is an important consideration in determining the grade of the homicide; and, in determining whether murder has been committed with express malice or not, the important questions for a jury to consider are: Do the facts and circumstances in the case at the time of the killing, and before and after that time, having connection with or relation to it, furnish satisfactory evidence of a sedate and deliberate mind, on the part of the person killing, at the time he does the act? And do these facts and circumstances show a formed design to take the life of the person slain, or to inflict on him some serious bodily harm, which, in its necessary and probable consequences, may result in his death? Or do the facts and circumstances in the case show such a general reckless disregard of human life as necessarily includes the formed design against the life of the person slain? If they do, the killing, if it amounts to murder, will be upon express malice. (8) In order to warrant a verdict of murder in the first degree, malice must be shown by the evidence to have existed; that is, the jury must be satisfied from the evidence, beyond a reasonable doubt, that the killing was a *451 consummation of a previously formed design to take the life of the person killed, and that the design to kill was formed deliberately with a sedate mind — that is, at the time when the mind of the person killing was self-possessed and capable of contemplating the consequences of the act proposed to be done. There is, however, no definite space of time necessary to intervene between the formed design to kill and the actual killing. A single moment of time may be sufficient. All that is required is that the mind be cool and deliberate in forming its purpose, and that the design to kill is formed while the mind is in such calm and sedate condition. (9) When the evidence, satisfies the mind of the jury, beyond a reasonable doubt, that, the killing was the result of a previously formed design by the defendant to kill deceased, and that the design was formed when the mind was calm and sedate, and capable of contemplating the consequences of the act proposed to be done by him, and such killing is further shown to have been unlawful and done with malice, then the homicide is murder in the first degree, and your verdict should be rendered accordingly. (10) To warrant a conviction of murder in the first degree, the jury must be satisfied by the evidence, beyond a reasonable doubt, that the defendant, before the act, deliberately formed the design with a calm and sedate mind to kill the deceased; that he selected and used the weapon or instrument or means reasonably sufficient to accomplish the death by the mode and manner of its use. The act must not result from a mere sudden, rash, and immediate design, springing from an inconsiderate impulse, passion, or excitement, however unjustifiable and unwarrantable it may be. (11) Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Eugene Burt, in Travis County, State of Texas, on or about July 24, 1896, as charged in the indictment, unlawfully, with malice aforethought with a sedate and deliberate mind and formed design to kill, did kill Anna M. Burt, by then and there striking, beating, and wounding the said Anna M. Burt upon her head and face with a hatchet and some heavy instrument, thereby fracturing the skull and the bones of the face of said Anna M. Burt, and by then and there tying tightly around the throat, and neck of said Anna M. Burt a handkerchief, thereby strangling and suffocating the said Anna M. Burt, and by then and there wrapping around the head and body of said Anna M. Burt a blanket, and securely tying same thereon with rope, and then and there throwing said Anna M. Burt, so wrapped and tied, in a cistern partially filled with water, sufficient to submerge the body of said Anna M. Burt; or if the said defendant did, with malice aforethought, so kill said Anna M. Burt, by either one or by all of the means above enumerated — you will find the defendant guilty of murder in the first degree, and so state in your verdict, and fix his punishment at death or confinement in the State penitentiary for life, as you may determine and state in your verdict."
Counsel for appellant objects to that portion of the charge which reads as follows: "If the said defendant did, with malice aforethought, so kill said Anna M. Burt, you will find the defendant guilty of murder in the first degree." It is insisted that this charge authorized a verdict of murder *452
in the first degree, upon a state of case which demanded a verdict of murder in the second degree. We do not so understand the charge. It has reference directly to the preceding portions of the charge, which in a remarkably clear and explicit manner define murder in the first degree. No juror with the degree of intelligence, under the charge given in this case, could conclude that the verdict of murder in the first degree could be rendered unless it was established beyond a reasonable doubt by the evidence that the accused, with a calm mind and formed design, deliberately killed his wife. This portion of the charge has reference to the charge preceding it, and, when it says "so kill," it means, and of necessity means, in the manner and condition of mind as set forth, in the preceding portions of the charge. However, there was no objection to the charge; and, this being the case, the rule is that it must have been calculated to injure the rights of the accused. This proposition is supported by any number of cases, the leading case being Bishop v. State,
It is insisted by counsel for appellant that, if we affirm this judgment, it will be contrary to law, and contrary to the previous decisions of this court. If contrary to law, this judgment ought not to be affirmed. If contrary to previous decisions, and those decisions are wrong, being correct in all other respects, the judgment ought to be affirmed. It is not contended by counsel that a change of opinion has wrought a legal injury to appellant, in misleading him so as to deprive him of a legal defense. Nothing of this sort is intimated. We have discussed the cases referred to by appellant in which he insists that we have laid down a different rule in regard to the testimony of an expert. We have shown that no case contains the question here raised. We have shown that in the Webb, Leache, and Williams Cases, supra, the observations of the court were mere dicta. But concede, for the argument, that this court has changed its opinion. (which is not the case); if we are correct now, the appellant has no right to complain, he having been misled in no manner calculated to deprive him of a legal defense. But, as we have before observed, the question in regard to the manner of obtaining the opinion of an expert has never been presented to this court in the shape presented in this case. There has been no change of opinion, but there has been dicta, which is not supported by the authorities. We have given this record a most careful examination, in the light of the consequences of the verdict, and are thoroughly aware of the fate pending over the appellant, and would not hesitate to reverse the judgment if we thought appellant had been deprived of a legal right; but we have found nothing in the record tending remotely to show that appellant has been deprived of a legal right. The evidence is amply sufficient, in fact, conclusive of the guilt of the accused; *453 the verdict of the jury is supported beyond all question by the evidence; and we have found nothing in the record authorizing this court to reverse the judgment.
The motion for rehearing filed by appellant is overruled, and the judgment affirmed.
Motion overruled and judgment affirmed.
Addendum
I agree to the conclusion reached by a majority of the court, in this case, but I disagree as to the rule of practice therein laid down with reference to propounding to an expert a hypothetical case. I do not concede, as contended for by counsel for appellant, that the rule has ever heretofore been laid down by this court. The question was more nearly involved in the case of Webb v. State, 9 Texas Crim. App., 490, than in either the Leache Case or the Williams Case; but an examination of even the Webb Case fails to disclose that the question was properly before the court. Judge White, however, in rendering the opinion in that case, appears to have ss conceived it, and discussed the question, *455 and stated the rule to be that, in propounding a hypothetical question to an expert on the question of insanity, all the evidence developed on the trial should be embraced in the hypothetical question put to a party's expert witness. The opinion of the presiding judge discusses the matters involved in said cases, and I will no further refer to them, save to suggest that I can not understand how counsel for appellant so strenuously insists in his motion for rehearing that he was misled by the decision in the Williams Case as to the rule laid down in propounding a hypothetical question to an expert, when the Williams Case, at the time the Burt Case was tried, had not then been decided by this court. The question as to the proper interrogatory to be propounded to an expert witness was not before the court in the Williams Case, and what was said on the subject in that case, on a careful reading, would obviously appear to the legal mind to be merely dicta. Besides, as above stated, the Burt Case was tried in the District Court of Travis County on the 27th day of November, 1896, while the Williams Case was not decided by this court until March 27, 1897; so it is absolutely impossible that counsel could have been at all influenced by anything that was said in the Williams Case.
I would here call attention, to the case of Shirley v. State, 37 Texas Criminal Reports, 470, decided by this court on the 10th of June, 1896. The opinion in said case would indicate that this very question had come directly before this court in the decision of that case, and the opinion would appear to lay down a different rule than that contended for by appellant. I quote from the opinion as follows: "Upon the trial, counsel for the State submitted to the two physicians, G.B. Beaumont and C.M. Alexander, a hypothetical case. The physicians gave as their opinion that the appellant, was not only sane, but that he was feigning insanity. Counsel for appellant objected to this opinion, because the hypothetical case was not full, and did not include the testimony introduced by the appellant tending to show insanity. This objection was not well taken. If not satisfied with the hypothetical case submitted to the doctors by counsel for the State, it was the duty of the counsel for appellant to submit a case made up of all the testimony. Again, the opinion of the doctors was not based upon the testimony that they had heard alone; but they had made examinations of the appellant, had observed his conduct, and the opinion was based upon the evidence delivered by the witnesses and their personal observation of the conduct of the appellant." On an inspection of that record, it will appear, as suggested in the latter part of said opinion, that the experts were examined upon the hypothetical case put, in connection with their personal examination of the appellant and their observation of his conduct. I think it may be said that the question to be propounded to one's expert witness upon a hypothetical case was not fairly involved in the Shirley Case.
After an examination of all the authorities which are accessible, I think the true rule on this subject is simply this: That when the issue of insanity is gone into, and testimony is introduced upon that question, and *456
an expert is introduced by a party, and a hypothetical question is propounded by such party to such witness, he should embrace in such hypothetical question all the facts that have been developed in the evidence bearing upon that issue which are not incongruous and which are not disputed. If any facts are incongruous or are disputed by him, of course he would be authorized to omit such facts; and, on cross-examination, the opposite party could, if he saw fit, in addition to the hypothetical question put by the party introducing the witness, propound a hypothetical case of his own, and add thereto such other facts as may been omitted by the opposite party, and which might occur to him to be material. Either party should be authorized to propound hypothetical cases embracing the disputed facts; that is, each party would embrace the facts believed by him to be true which may be disputed by his adversary. Such a course seems to me to be fraught with fairness. See Busw. Insan., sec. 263; Davis v. State, 35 Ind.,496; Goodwin v. State,
It occurs to me that the rule above stated is not only supported by the best considered authorities, but that it is logical. All of the facts which are adduced in evidence bearing upon the issue of insanity are a part of the defendant's character in that respect. Certainly, all of the undisputed facts pertain to him, and serve to shed light upon his character with respect to his sanity. Now, if the evidence contained a great many facts indicating eccentricity of character, and a few of these are culled out and put to an expert, he might say that they did not necessarily indicate insanity of the defendant; whereas, if all the eccentric facts are presented to the expert, he might say that they clearly indicate insanity. If, moreover, the record embraces a great number of facts, some indicating sanity and others insanity, and the facts indicating insanity alone are presented to an expert, he might say that the party was insane. On the other hand, if only the facts indicating sanity are submitted to the expert, he might unhesitatingly say that the party was sane: whereas, if all the facts in combination are submitted to the expert in the hypothetical question, he might say that they indicated his sanity or insanity, as the case may be. What I mean to say is this: That when all of the facts in evidence bearing upon the issue of the insanity of the defendant are undisputed, and the expert is adduced by the State to respond to a hypothetical question put, that question should, in common fairness, embrace all the facts. This, in concrete form, alone constitutes his character for sanity or insanity, and the opinion based upon all the facts can alone shed any light upon the question or be of any service to the jury. While I believe this to be the correct rule, yet it by no means follows that a case ought to be reversed where this method of propounding a hypothetical case has not been *457 followed, and I would not be understood as holding that any case ought to be reversed because a proper hypothetical question is not put in the first instance by a party calling an expert, where full opportunity is afforded the opposite party for cross-examining that witness. Much less would I agree that the opposite party may object to a hypothetical question on the ground that it does not embrace all the facts, and conceal from his adversary, or refuse to state for the benefit of his adversary, such facts as are not embraced in the hypothetical question. In the case at bar, full opportunity was afforded the appellant on cross-examination to put a full case to the expert, or to put any character of hypothetical case arising from the evidence which he saw fit; and I do not believe that he could refuse to avail himself of this opportunity, and then ask a reversal of the case because a full hypothetical case had not been put by the State. Further, I do not believe that the bill of exceptions in this case fairly raises this question. The authorities hold that the bill must be so full and certain in its statements that in and of iself it will disclose all that is necessary to emphasize the supposed error. It must sufficiently set out the proceedings and attending circumstances below to enable the appellate court to know certainly that error was committed. The judge must certify to the truth of the facts upon which the exception is predicated; and the taking of an exception, without the recitation of such facts in the certificate of the judge, will not be remedied by the allegation of the grounds upon which the exception was taken. The bill of exceptions must itself certify the ground, or it must reasonably appear from the bill itself.
With regard to the testimony of the witness Carrie Sparks, I think it sufficiently appears that the exclamation she heard was from the wife of the appellant, and was addressed to him. It was made on the evening of the homicide, about 7 o'clock. The evidence shows that the only inmates in said house were the appellant, his wife, two small children, and the nurse. At that particular time the nurse and children were absent, and there is no testimony suggesting that anyone else could have been in the house at the time, save the appellant and his wife. True, the evidence is not positive establishing the fact that it was the voice of the wife addressed to her husband (appellant); but, while it was circumstantial, it was of such a character as to almost certainly exclude the idea that the expression could have been made by any other party than the wife, or to any other person than her husband. The evidence shows positively the absence of the nurse and children from the house at that hour, and presumptively or inferentially the presence there at that time of appellant and his wife; and I believe it was admissible for the State to show by the witness Carrie Sparks that, as she passed the residence of appellant, she heard a woman's voice exclaim, in a high tone, as if addressing someone, "I will not stand this any longer!" and this could be used by the State for the purpose of showing motive, and directly as tending to suggest sanity.
With the foregoing observations, I agree with the conclusion reached by the court. *458