Burt v. State

y. The State. Burt 1897.1 refused, was By referring to the charge appellant excepted. Said self-defense, be observed that the on it will court a gave court’s charge the and authorized defendant full on de- charge subject, slay him, from the first assault on which it if made reasonably ceased deceased or he was in danger, that his life was in danger to him serious appeared the that the court also instructed would bodily injury; if deceased made an the deceased assault on him of the right slay have less than character, an assault with dangerous intent a violent him serious he used bodily injury; take his life or inflict upon provided in order means, retreating, to avoid the all other except necessity slay- observed, further, the that court deceased. will the ing gave on idea that the the defendant have the charge predicated may provoked un- and thus his self-defense was unlimited and difficulty; right on If court provocation. given charge the abridged by any or a on on de- bringing difficulty on provocation part fendant, then the neces- charge asked would become by appellant have but not otherwise. The is affirmed. judgment sary, Affirmed. Hurt, absent. Presiding Judge, W. E. Burt The State. 9, 1581. June 1897.

No. Decided Rehearing 2, Motion for Decided December 1897. Witnesses—Hypothetical Evidence—Insanity—Expert as to. 1. Case—Rule case, procedure criminal the trial of issue rules On experts may is, embrace, hypothetical that counsel of medical examination evidence, opposing questions, as he deem established and if such facts questions, may established are included in such not think the facts counsel does all propounded questions cross-examination. The facts them in embraced include the evidence cause hypothetical question may existence state of facts which the assume the fairly justify. improper that such tends And it seems be- only part expert it includes of the facts in evidence. Where has not heard opinion upon evidence, right any hy- the witness the pothesis each side has to the from reasonably evidence; fully meagerly presented consistent one side, may presented by other, on the it examination the whole ex- being court, duty amination within control whose is to see it is that reasonably fairly paragraphs 18, 19, 21, conducted. See infra and 22. Same. 2.. murder, a trial for On where for the State counsel submitted expert upon gave opinion which-the medical sane, his that defendant was where- upon pert answered, upon evidence, said counsel submitted a case based all of the to which the ex- opinion sane; his defendant was and defendant’s counsel then hypothetical case, expert gave submitted defendant was which the opinion insane; Held, contention of that no expert upon prosecution legitimate, the first case stated was and that no legitimate or admissible until a full case had sub- been mitted; opinion, reversed, supposed admission as to the first judgment error for which the should be is not maintainable under the cir- shown, cumstances presented because a ease afterwards, fact, based the evidence was expert by counsel defendant as well as counsel for the State. Reports. 38th Tesas Criminal of Evidence Admission Not in Bebuttál—Practice. argument concluded, court has discretion to receive until whether or in rebuttal not. Nonexpert Opinion Sanity. 4. to Defendant’s murder, nonexpert opinion sanity On a for trial the of a witness defendant’s as.to particular time, upon at a based a business transaction he had with defendant a few days prior homicide, length to the is admissible where the witness at detailed the transpiring upon opinion. facts at that based his time Judge’s Explanation Exceptions—Practice Appeal. 5. to Bill of on appeal required verify On court is to the consult the statement of facts to the judge’s explanation exceptions. in his statements to of bill Insanity—Use 6. of Medical Books. insanity, evidence, books On an of medical can not be introduced in issue nor can permitted" expert testify therein; to an be as to statements made witness and it is clearly permit excerpts reading to the from inadmissible of such book or standard explanation argument. of in books that character counsel or elaboration of his Simulating Insanity Trial—Expert Opinion. on the 7. murder, evidence On trial where had been introduced in behalf defendant appearance, during manner, insanity trial of his that defendant and demeanor the as evidence clearly permit testify time, competent expert it was a medical to the simulating, being witness, expert, an where the in addition to testified carefully during trial, that he had the defendant and his observed demeanor days. which had lasted about seven 8. Same. appearance coming had in Ms and manner in defendant offered Where upon courtroom, error, going as to whether or and out of it was testify simulating insanity, permit that defendant had a witness not he was through passed day against window frame as he window struck his head many only before, had so in the times he it was the time he had done and that during passed through the trial. said window Expert. Insanity—Who Is 9. an upon gospel, has read authors moral intellectual of the who some and A minister insanity jurisprudence, nothing upon expert an nor science, is not or medical sanity insanity expert upon qualified give of a defendant. an an Upon Pris- of an Unwarned Same—Expert Opinion the Conduct Based 10. oner. sanity An a defendant based of the base his although jail defendant was defendant while the actions conduct of unwarned. Same—Nonexpert Opinion Was Warned. when Prisoner 11. Mm, anything custody having has warned his evidence, the defendant in Where the sheriff may give sheriff and the stated to him is admissible sanity the defendant opinion defendant, his conversations of the based concerning "facts, acts, the defendant. of and observations Court—Disregard of Human Degree—Charge of in the First Murder 13. Life. Ms murder, killed that defendant evidence showed trial for where On defining court, duty in the murder children, it was little wife two circumstances jury, degree, “Do the facts as was done: first this to instruct necessarily disregard a formed includes life as of human case such a reckless show killing, they do, it amounts to person if design thé against slain? If life of the murder, upon express malice.” would Used. Murder—Indictment—Allegation Different Means toas 13. every put produced, well to it is the death is doubt about how Where there and, proof proof indictment, one made suggested means prove unnecessary alleged, all. them it is means Bust t. State. Degree—Charge—Practice. 14. Same—Murder Second practice proper, prudent, murder, and safe it is the submit a trial for On degree. issue in the second and law murder Insanity—Burden 'of Proof. 15. insanity, proof defendant, though the burden of he is not On issue beyond required prove it a reasonable doubt. Impartial Murder—Enormity, of Act—Pair and Trial. 16. notwithstanding murder, enormity imputed a trial for of the act On to de- n impartial trial, trial, fendant, entitled to a fair he is and if he has not had such judgment of should be reversed. conviction MOTION FOB

ON BEHEABING. Insanity—Medical Expert—Hypothetical Case. insanity, embracing State the issue can formulate a On bearing upon proper competent, facts as it such and obtain the submitted deems expert. opinion of an If the defendant is not satisfied with the case by privilege submitting only he has the of his not as em- testimony, upon any testimony trial; in all braced his introduced on the patent. right if he is denied this the error would be 18. Same. hypothetical expert stating witness, a to an In ease the State is not bound to in- testimony question bearing legal clude all the of the The State has the in order to obtain a proper expert. right hypotheti- and cal See answer from to submit its case, and, it, hypothetical if the accused is satisfied with he can state his case. question. a for of authorities and a discussion in of review extenso 19. Murder—Evidence—Exclamation Deceased. murder, a trial for where is conceded that defendant his On killed wife and two children, night, competent prove by home, during witness, at their it is a that passing evening killing, about 7 o’clock of before high, as she was the house she voice, pitched house, saying: going a heard woman’s in the “I am not to stand thing any tending longer;” this the-other evidfence that the time show defend- ant in the house. wife alone Degree—Charge. 20. Murder in the First murder, charge gave aOn trial for where the court remarkably a clear and explicit degree, afterwards, definition of murder the first in application in the submitting applicable constituting the law to the facts murder degree, in the first following, separated by semicolon, added which from the context to-wit: “Or, did, aforethought, if the said defendant with malice so kill the said Anna M. Burt, you guilty degree;” find will the defendant murder the first and it was contended, by appellant, particular excerpt counsel that charge from the ex- pressly degree upon authorized defendant’s conviction of murder in the first “malice aforethought,” first, which could not constitute murder in the but murder in the degree being only degree, predicable upon “express in the first malice;” murder second Held, kill,” excerpt, necessity mean, “so used in the words in the manner preceding portion of mind set forth condition immediate context of the further, being charge, exception is merit. and the contention without Held there no mentioned, being controversy and there no to the to the reserved fact of possible injury killing by could have resulted defendant even charge been had the erroneous. Hypothetical Case—Practice. 21. testimony hypothetical question, all the in the fails to include one side If other fully jury, practice may go and such a by before the is into the matter commended concurring J., [Opinion of in the result.] authorities. Davidson, Same. 22. subject simply insanity gone, is When the this: issue of is true rule on this The question, expert by an is is introduced introduced into propounded party hypothetical question witness, party is such to such and a hypothetical developed all the facts that have been embrace should Reports. {Tyler, Criminal 88th Texas incongruous, bearing upon and which are not are issue which in the evidence disputed him, incongruous of course he would disputed. are are facts If opposite party could, facts; and on cross-examination omit such be authorized party introducing question put hypothetical fit, in addition if he saw propound hypothetical and add thereto such other witness, case of his own the facts as might party opposite occur to him to be ma- which be omitted embracing propound party cases should be authorized Either terial. bearing upon disputed the issue facts in evidence facts. When all the respond undisputed, adduced the State and the defendant are of the should, fairness, hypothetical question, embrace in common concurring J., [Hendebson, facts. result.] Hon.

Appeal Tried below before from the District Court Travis. E. Brooks. R. for murder in the first degree; from a penalty, conviction Appeal death. with the murder charged

The indictment this case appellant There were also Burt, wife, M. on the 24th day July, Anna murder of little him with the his two two other indictments charging children, 4 and 2 girl aged years. correct, is

The of the substantially statement following taken from brief: appellant’s 1896, deceased dis- 24th July, parties night day

On the was about the daylight. 9 o’clock and between appeared divers had various dealings of the next day, persons, the whole house northbound, and m., 11:40 o’clock at about p. took the train and then about thirty days. Chicago arrested in the victims were found in the the 24th July after On the fifth day in the basement where the cistern house underground water blanket, in a wife was up of the wrapped body had lived. The family tied it and a handkerchief around tightly a wound around with rope in the down to the right temple extending wound There was a the neck. bone were crushed. This wound and cheek Both the skull cheek bone. and from shock the hemorrhage, from death was to produce sufficient death from strangula- have produced could The handkerchief brain. cistern to have caused death by was sufficient tion, and there water of causes death. counterparts had exact girls two little The drowning. Their with wire. feet and tied on the breast crossed hands were Their wire, and then wire tied with and at ankles also also crossed the were in their clothes These bodies place. if to keep the bodies along wound feet, at least 100 a distance of the a room from upstairs, carried fastened and the thereto securely top by therein deposited and cistern found about the premises blood anywhere was no There it down. na.fling at any point. remarked noted and his was a family toward of accused The affection them. who knew those fact by the killing with connect appellant All sought the evidence circumstantial. was wife, and the kill- murder count, charging in one indicted He was named—first, wound- by modes the three in done have been alleged ing 401 Bust v. The State. instrument; with some ing cutting second, third, hy strangulation; by drowning.

The trial came with of not entered. The was plea guilty defense but no made was insanity, was that insane the suggestion at time of the The been trial. facts claimed to have State proven the infra, brief, will be out setting found in the appellant’s hypothetical propounded the State’s witnesses. for appellant. Walton, S. George Moore, 3. T. and Walton & Sill,

court permitted the State to a put to its witnesses, based on its own testimony, exclusive of fact was proven accused. The defendant time, at the objected perpetu ated the' bill. objections by put the medical witnesses: the defend- Suppose man, ant was a married with children, a wife and children being two 4 about 2 and years; 1896, that on he July, the 24th of night of and his wife were at home at o’clock, when, nurse, or 9 half-past child younger him, was delivered to wife; elder to the after the of a little lapse while, room, he went to the filled a bottle dining with child, milk for his then took the child in younger younger arms, and with a bottle of milk went where he room upstairs wife, child, wife and the children the elder leaving and the slept, rooms; in servant the lower last ever seen of the younger time, child alive. After not return until the servant does departs day All in house that time. A of two o’clock. before quiet stable, from the coming grass hand, he was seen sack At some which contained hour their bed- something. night, children, room, the defendant killed his wife two each by striking hatchet, them in the and side of the face with a right temple crushing skulls; then fracturing hones the face tied tightly handkerchief, around the throat of each a so stran- sufficiently produce suffocation; wife, body then gulation enveloped except feet, so as to blanket, and wound the blanket keep around ropes hands and feet he ties the blanket place body enveloped; wires being night the two children with and other their ligatures, they bodies, means, He in his arms conveys clothes. then some (or window, it, of them from a lowering through them casting out) from floor, room to the lower upstairs and thence them transporting difficult, circuitous route to an base- through cistern underground house, ment therein, and east the three bodies then nailed down cistern, the the which had top been off to admit the ripped bodies; water in there was the cistern sufficient to bodies; the submerge daily the water the cistern was in use the household theretofore. He took the cistern and secreted means, the handle off it. pump some By used, had on walls floors, care not a stain blood been left the on the done, or furniture in the the nor on room where the from killing way App.—26 38 Texas Crim. 402 Reposts. {Tyler, 38th Texas Ceimutal room, house, inside or outside of the on the to the cistern.. way o’clock, house, The servant returned at about but slept the noise, faint, no child a dream-like remembrance of a hearing except heard door,, o’clock, at The next about 7 he the servant’s morning, tapped cry. market, was not. her, her to to a she go thing awakened rise requested until returned He the servant doing. again in the habit of was not seen fill it teakettle, to return, she market. her took the proposing from On noise, when the water; hold of it made a taking and in cistern, water from as a cat in there last her, use fell said to “Don’t the said arose, about the and children when he Some .wife night.” questions to San and had sent them night had trouble that he had some Tues- back train, would be on m. but Antonio 5 o’clock a. house to ready go keeping would when everything day Wednesday, note- a gave defendant being prepared, at the Scott His breakfast place. to the store- him to cartman, directing go servant, to carried to to be boxes; to the house some bring of defendant’s brothers and procure him, all to nails bring to some money buy he also her some gave was. the boxes directed, bringing and the cartman which was done as breakfast; he sent the ate to 3 or 4 He return at o’clock. requested man to and look at come second-hand furniture with a note to a servant looked at the- the furniture and other household effects. He came and $150, effects, and wanted, agreed asked the and was told price finally $65, take the trade was consummated at to those and the- figures,' delivered. goods During day bloody sheets, bolsters- clothing, blankets, comforts, and other all more or less pillows, bloody, bloody hatchet, wife, and bonnets miscellaneous clothing hats children bloody mattress, cotton from a (not bloody), portions mattress, from a also ticking bloody, were all boxes packed packing and nailed and at o’clock the cartman to be up, conveyed delivered to office for from a to a transportation fictitious shipment person Houston, fictitious addresses boxes were person Texas. The on the in a written defendant. feigned handwriting he had During day money various transactions with different persons, notes,, wrote various tore some and others were delivered to the up, whom written. persons He was in or In about the house the greater part day. evening- said, “this is- came, the milkman whom defendant met at the door and milkman,” him milk, and told got pitcher moved family 912 Rio such street Grande Street and that (there being number), milkman, next would find in the milk day he, two tickets- pitcher he as if hard at instead one that time been appeared weary, having At work, hard, and face flushed. sleeves, breathing in shirt He three packed in the back next house valises and them put premises during he hotel, towards went to a ate evening, night, evening. Later shaved; returned hotel and and was went shop to barber supper; Did not the fact train time. conceal until towards checkers played Dallas; he said was going to one on the of departure; he was eve another, Dallas or another, Antonio; another, Georgetown; San 403 y. The Burt State. had de- went where he time named he place At the Fort Worth. .to them, made re- way depot; his valises, posited obtained in, at until the train came about in, at, and around the depot mained om train, boarded rode a ticket to Chicago; 11:40 m. Did not buy p. him; who knew conversed whom he knew and it in seat with a party a days thirty about Chicago on He was apprehended different subjects. murdered his trial, on thereafter, having extradited for business;, was out At of the murder he wife and children. the time ren- means; had been of forcible detainer Avithout any ready judgment lived;, he him house for the against dered possession of July 24th officer, an ,oust Avasin the hands of jmoeess him of the owner to remain was the last he day prem- permission the; on At said 24th nor nor July, day, ises. no time anterior he, to friends thereto, many acquaintances,, did day subsequent demeanor, business, a present appearance;, those whom he transacted with him. what was usual habits, or different to conversation were these: question The to this objections not heard all the 1. Avitness has testimony. Because the 2. case is in that it only, Because does not em- hypothetical partial all brace the evidence. on as It is not a all the evidence let hypothetical question already

in, on evidence. nor all indisputable

4. It is not a based (case) question, on hypothetical all: substantially in, on the evidence as nor already indisputable evidence as al let in. ready 5. It is a case hypothetical from (question) standpoint the State alone, out of which is left all the

(evidence) evidence the defense. law, 6. Ho is allowed to expert, answer to a question or no sanity is unless the answer based on of all hearing hand, one toor case hypothetical (question) formulated on all the evi- dence, at least based substantially on all the evidence before the court at the time the jury, which is not put, pretended to be the case here. overruled, objections and the witness answered, that in his the defendant was sane 24th July, 1896. settled the decisions of this court by long-standing,

logically adjudications. reasoned Case, 9 Texas Webb’s Criminal 490: Appeals, The court says, after review the authorities: “As to medical experts, they state their own the whole evidence if opinions upon have heard all, statement which is with the conformity whole evidence. All authorities that it is agree inadmissible to permit give short of the whole opinion upon anything whether it or it has heard is stated to him personally hypothetically.” 506. Case, Id., Leache’s 279: court, There the accepting utterance law, the Webb referring such, the lan- repeats verbatim. 306. guage Reports. 38th Texas Orihifa-l elsewhere, the the law in is,-

Whatever law Texas that- may -expert evidence, not be save on the whole and court given says this opinion may all This is not the law as agree. that on as the law authorities only court, reason, com- but is founded on laid down in words express sense, in mon and for the truth. To declare necessity seeking unqualified is the whole, the law is to that a that to see part otherwise say equal whole, of a of is to the and to be a recitation part the see part thing and a absurdity, the The contra illogical, plain whole. proposition an in absolute contradiction terms. trial, this: in its testi- then, of the was The State put state in and defense had its testimony in chief and rested. The

mony put witnesses. To rebuttal, in had introduced its expert closed. The in- and embracing a question the was being them question propounded, ob- defendant answer, State Before only. the evidence the volving based bill, and so doing for stated the the various reasons jected cited, cases, and this branch before himself on and Leache the Webb as and followed guides, said cases defendant having the was tried by that answered them. The witnesses out along lines pointed 1896, and 24th of July, on the was sane their defendant minds of the jury opin- fixed in the Thus there were time trial. based sane, and defendant was this opinion, ion of the experts on one-half, evidence, two-thirds, only not on on not on not reason, want logic, further show the side. To the evidence on one the defend- from was submitted or the proceeding, proposition justice alone, these answered that the defendant experts and ant’s standpoint defendant on the was one hand sane Thus appeared was insane. to reconcile the duty insane. and other on whether, determine facts, and conflicting conceding truth seemingly other, or the one side and the in- the facts on insanity facts, whether or not man say all the and insane may compatible in the State’s not an question, the acts recited may not have done all been yet man all these in that condi- things insane have performed shown in causes defendant’s behalf? from other heredity tion not It is true State was formulated on all the incontestible, true and that was and that was admittedly evidence which contested, as to there were no contradictions nor pretense as, instance, such for had existed in any; defendant’s of his mother when she defendant; the condition bore family; being degenerate; moral as congenital pervert—a change his life he habits, manner, demeanor, association, older—in grew alienation from his devotion, love, relatives; his near affection only his wife and chil- dren; barbarous, them, brutal mode of other facts. killing These uncontested, and yet while have been absolutely may insane, facts the State’s related in evidences question, and do all the acts of that question, off or all left out condition mind insanity are alone, man, while themselves acts of a sane tested facts have been done an insane with what may person. were not inconsistent y. Bubt The State. Again, question was formulated on all the evi- substantially then in dence nor on all the evidence that was uncontroverted. rule If the as laid one, down this court be not the true then the' be divided until is in as and subdivided pieces many there are witnesses sur- isolated facts circumstances killing founded on each and rounding every varying view of the ease.

This was a case circumstantial evidence dependent wholly In case-the rule is in the admission killing. testimony- liberal method of connection or combination can throw by any reasonable thereto, on the on the motive or the cause light killing leading itself or therefor, but must be in and of to make or itself pertinent made, chain, make a to the accused in some direct points to help with, exist, but no connection having manner. Isolated facts which may which, other together, intelligently some fact or facts taken establish in case. fact, are never admissible any another the court to in go Such an isolated fact to permitted by jury was which, tendencies, in was case, over and its accused, the objection him from no standpoint harmful and when decidedly prejudicial conclusion as to his was in a reasonable helpful coming in It under guilt got It in as evidence in rebuttal. or innocence. came said that The witness discovered. It was this: guise being newly and killing, when about hour of 7 m. on the supposed night p. about heard house, the defendant’s she a woman’s opposite voice raised in rather “I will stand this no did high say: thing longer.” She not key nor She no recognize voice see connected the accused anybody. way or It the deceased the voice. was shown who said the words, with said, whom were nor the occasion for they them. saying evidence, however, fact was in that The the nurse was then out with the two children. The hour was growing dark. The nurse came in about 9 o’clock and found the accused and deceased wife in the sitting room humor, and their usual noticed nothing out of the common. comes,

The what office did those words perform- the jury to lead their minds to the accused? idea adversely presented by their was offer the State uttered by husband, the wife to the and the occasion for them was because some outrage done being to her. him, and that this or outrage wrong was of some time standing, or had again; been time and her repeated patience had been worn out rebelled, she outrages his and that therefore because of her n rebellion, her from acting and to toway him prevent expose by re- he had at a longer outrage, to stand fusing subsequent hour murdered them had between ever been one of her. The relation affection love, In all the itself. if not absolute devotion there is not one word other suggest tends to relation any than suggests that stated. disaffection, no no no cross quarrels, There had been no purposes, jeal- but life of outrage, naught quiet peace, no wrong, happiness ousy, True, in money existed, closeness matters sometimes contentment. Reports. 38th Texas Criminal {Tyler, absence, so saw, its far as mortal ever heard, or mortal ear ever eye made no difference with them. stood side side and breasted the They istorm together. Then we that there was may safely say nothing «ase as in on which exclamation could stand connection any- with that existed in the then and we with thing past, equal safety say next two are barren fact or hours circumstance equally anger, raise the words were in or rebellion by cause to believe protest, At the of that children came wife to the husband. end time the as it nurse, with the and then all was well had ever been theretofore. child, In a little while husband takes the younger a tender habit, undresses the elder for bed. nurse milk meet with husband vessel filling scene. The pathetic arms, her placing her in his night, taking hunger of babe and to heart, sleep. to rest carrying close her earth, family, when the outside little was the condition eyes This to see life, again children closed on the wife and only opened their bodies. mangled sur- scene, the If the facts of circumstances portrayal arewe do not mind that the expression convince the sane roundings,

n discussing with instrument, out of its place, did come in as a deadly facts of the other to, relation no connection and no legitimate utterance, understand, to its then we do not precedent subsequent the relation of one to another. thing nor appreciate, comprehend two chain, and wholly uniting incapable is a link outside the reach, it be and its unless beyond from it away ends of chain that lie believe there and willing jury a credulous thrust in to make arbitrarily no chain. is a where is chain there admitted, that viz., was improperly testimony It claimed other is n of A. others, over behalf of Rutherford, R. wife and his this, summarized in may of accused. The objections the objections of defendant. as to the sanity were as laymen that witnesses examined themselves to did on the qualify speak 'The was that not objection n subject. their witnesses based many opinions In the case of these observations, or even intimate acquaintance without on casual simple, admit be that We the law to of that association. friendly admissible, but is character, when based on proper predicate, predi- exist, does then the evidence is vicious. If it cate is the criterion. the court and qualify shall address himself to ‘The is that witness rule himself, facts', and if then he qualified, may detail as well pronounced n as on issue of insanity. to the Because give jury, an opinion sanity the witness may qualified the trial court pronounce does him qualify in law. for the occasion enable witness may to but the testify, review, is subject of the court on so as if qualification much ruling values. It must market appear the issue involved acquaintance with the such as to enable him to witness form correct party Case, as to mental condition. Thomas’ Texas, 63, conclusions and thereto. cases subsequent y. State. Bust

1897.1 The witness must be The rule is but one from knowl- way. qualified, life, of and association with the edge his manner party, speak conversation, action, his walk and and other indicia daily eyes, mind which read into enable observer to with some speak, and reason, otherwise man degree certainty who seen has another one time without to him would be speaking competent prejudice about by uttering opinion which he knows nothing. There is reason in the rule. The should for, reason be adhered to. take Case, the reason the rule falls. Webb’s 5 Texas Criminal away, Ap- peals,

It will be noted the court that the evidence on the the accused so. conflicting, materially Smoot, Drs. were of the Swearingen, McLaughlin, Tally examined accused was insane The other who were experts July. on the experts, defendant’s evidence also said he was insane. The State’s on evidence, him sane. On thought State’s material great conflict of on defendant it within the evidence this vital deemed point truth, rules and that are to reach the at least aid- observed practice issue, ful in submit to the the effort reach the truth and solve the standard on the jury authorities subject insanity, offered so, to do but the offer was refused the court. Afterward coun- sel authorities, to read the of his to the proposed part argument jury. This was Wade v. DeWitt, also refused. The was reserved bill. point 20 Texas, 400, 401.

Where the issue, text is of pertinent stand- applicable ard matter, authors on the subject to have privilege authority before the is valuable. and its We know character of evidence use is under the control and largely subject to the discretion of the court, abused, discretion we submit that the discre- tion in this instance was abused.

Take the as it situation was—a diversity part medical the mind of the left in experts, jury necessarily doubt, burden of on the defendant—what could have well proof so furnished put ‘which the could have solved appropriate light by difficulty been as the fountain knowledge or information from which the get their experts science, license Take the record medical speak? away deprive information, stand, of of and and that source them on experts put rule they would as a as as new-born blankly stare calf. But when they have from the books they crammed themselves speak and glibly dog- in nine ten when cases out of matically, they never had charge of a it in lives, diseased mind be their their even if ever (unless own) they saw being human afflicted with mental disorder. are being The books com- from the of and piled experience ages, represent probably approximate truth. of Where is or the wisdom fountain policy proscribing of it and in of a rehash of the text those knowledge accepting place who in have and truth no more and as- reality to ability comprehend it similate than average juror? Reports. 38th Texas Criminal men, is by medical of

Expert testimony, particularly worthy least is recognition, or very weight, respect. Such known fact by courts, of is the decision most that it indeed mere ineffective and theory, The dare not practice. courts so but is inoperative charge, per- mitted, contradiction, crudeness, with its and unreliability imperfections, to to the .truth. go time, furnished by if there were no other than those experiences firm, im- bold, take a courts, for this and all to court other testimony stand the- that are against wrongs movable perpetrated not, in best, dig- it is of murder At the very medical cases. experts link in a chain a circumstantial weight, or credibility,

nity, equal evidence. medical some of the laid by was raised as to the A-question predicate them- Wooten, Wooten, &

men, Graves, Drs. Wooten particularly condition mental selves, to authorize them to as experts testify the time of the alleged condition at especially killing. trial,

It will be issue was not as at the remembered sanity but charged. knowledge the time the acts The extent him in limited. saw They all of them defendant very any him, and T. D. so did Dr. Dr. Graves had some jail. acquaintance Wooten, Wooten but Drs. Joe Goodall saw him in on two only jail time, head, a short when occasions—once for went measure his they at the instance again, they interviewed him to deter- condition, While sanity. mine some to his then they made tests as him, had no or if knowledge any, casual, the most they to that prior Dr. T. D. time. Wooten once at the present only head measurement, before, had he known defendant and had had some business trans- with him. Hone of them had heard actions testimony the case. when testimony experts, are able men and they supported facts, full knowledge but weak. It is a man grave thing determine- condition of the sound try human mind—whether or unsound, balance, in or out of whether he from right knows wrong, has or not an act, will from power doing impelled refrain thereto or not, hallucination, delusion. by impulse,

However, these had no experts examination, after their difficulty hasty in character, limited months after superficial act, four in saying of mind defendant was sane on 24th July, 1896—knew from right do, discretion to do or not to wrong—had possessed will requisite to refrain doing thing from knew was power wrong. They difficulty the mind found reading through a thoroughly .be sane one four months before. Under the facts circumstances of this case we have no hesitancy asserting these was based on experts an insuffi- credible, cient that was not not to predicate, ought have been east amateurish, into the scales of life and death. It was haz- experimental, ardous, and murderous. Bert t. The State.

The only correction that can be administered to such unjudicial pro- ceedings, ofway a man’s life guessing away, must come from this court. The lies power here, and can be If not applied. applied, ap- plied firmly radically, lives of men will become playthings. It is not a matter bounded judicial discretion of the trial court. It is substantial material, a involving great of evidence, principle and is worthy most deliberate deepest thoughts this court can give it. Dr. B. K. Smoot defendant; was witness for was offered as a wit- lay

ness defendant. He had known him from his childhood, intimately. On his of him knowledge and his life he ofwas he was opinion an man, books, insane and had been so for years. He was then asked what etc., he had mind, read on etc., the human and he answered, showing more than usual reading, a man intellect and being large great was him an ability, he heard the evi- put having expert, dence. He was not allowed to answer his He was then asked opinion. a hypothetical on The answer was not question, based the evidence. allowed. A bill was taken.

What is an In is conversant the better sense he one “who expert? trade, with the and others science, skill, matter on subject questions Ev., like kind.” Best’s Prin. sec. sense, In Again, another he is one “who is instructed by experience.” An one “who is the science or practice.” with professionally acquainted If means. he need not expert By be a man. necessarily professional has studied the matter of subject it, understands inquiry, give may his the same as if he were the art or science. professor cases that if say

Some a man has studied medicine he answer may science, on that but that does not admit him to give on a question of mind. The human mind is one the human thing, another. The body man who has studied mind to it. If speak limited, has been study that fact to the goes tes- credibility.' Experts stated, from tify, might first, three positions: knowledge second, subject from heard the inquiry; having testimony concerning third, that subject; from all the evidence in regard having subject to him. inquiry repeated Dr. Smoot came under all three conditions. He knew the subject and was inquiry, with acquainted mind, human the status or condition of which was the exact subject as it existed at a inquiry, the defendant. period He had heard the the evidence to him. repeated He stood in a command- force, and truth ing position speak power, very question on which the had to He was ruled pass. away, the defendant suffered, was in that he was injured, legally deprived evidence material to his defense. were also follo’wing bill: proceedings perpetuated by Smith, Dr. M. M. stand, expert,

When he stated under one of the he believed why defendant was reasons sane and objection simulated, or demeanor on the trial were his actions was that in passing 38th Texas Cbihxnal Eeeobts. a raised window through way coming in and the leaving courtroom, or lowered or bowed his head to always stooped prevent striking sash, the lower frame of the which was not against raised high under in an erect enough This was pass position. objected be- not matter the on cause was relevant to issues and hearing, was cal- mislead and culated to the the jury prejudice Thereafter, defendant. on the next the sheriff who had day, deputy charge defendant in bring- him in and him from the ing escorting courthouse was on the stand put Smith, that soon after the prove expert, testified, court adjourned, and that in out of the courtroom going through window defend- ant head, did not lower his but struck it the said window frame. against Objection urged earnestly against evidence, of that reception irrelevant, because immaterial, in and of on issues, itself and calcu- lated to do defendant the gravest harm; but he was overruled and said in. evidence let

Before proceeding with the several bills of reserved exception by defendant court, charge before the same was read to the jury, appellant desires to direct the attention of the court to paragraph 11 of the charge, error, which is and fundamental clearly unmistakably and does not give the law of the and is follows: jury “How, if believe you evidence, from the beyond doubt, reasonable Burt, in Eugene Travis County, Texas, State of 24, or about A. 1896, D. July charged indictment, unlawfully, with malice aforethought, mind, with a sedate and deliberate and formed M, kill, did kill Burt, Anna design then and there striking, beating, and M. said Anna Burt wounding her head and face with a instrument, hatchet and some heavy thereby the skull and fracturing Burt, bones Anna M. of the face said and then and there tying tightly around the said M. Burt a handkerchief, throat and'neck of Anna thereby Burt, and the said Anna M. strangling then and there suffocating around the head and of said Anna wrapping body M.- a blanket, Burt same thereon with and then securely tying rope, and there throwing Burt, said Anna M. tied, so in a cistern wrapped filled partially with water, sufficient to of said Burt; Anna M. submerge body said did with malice so hill said M. aforethought Burt, Anna defendant enumerated, either one or the means above will you find defend- ant murder in the and so state in guilty degree, your verdict, and first fix his at death or the State confinement in punishment for penitentiary life, determine, as you and so state in verdict.” your That of said charge part italicized is from the separated pre- of said ceding portion paragraph by disjunctive “or,” conjunction said terms, makes express direct, plain, and tells positive, find the defendant jury murder in guilty the first degree upon malice without malice. aforethought The first express of said part para- directs the that if “the defendant, graph jury Eugene Burt, in Travis Texas, 24, State of on or about A. D. County, July 1896, as charged indictment, malice with a unlawfully aforethought, sedate and Burt v. The State. deliberate mind and formed Mil, did Mil design Anna M. Burt, by etc., strildng, beating, wounding,” will find the they defendant guilty of murder in first fix his degree, at death, or punishment confine- inment While life. the latter of said penitentiary part paragraph, and most direct manner tells the plainest possible that: "Or if the said defendant did with malice aforethought so kill said Anna Burt, M. either one or all of the means” indictment, enumerated will find the or murder in defendant guilty degree, first assess his punishment accordingly. To what

What does this last mean? does the word "so” refer? proposition ifOr was done with malice either one or ldlling aforethought by off, the mind is of the means above mentioned. The condition of left cool, that it must in a state of malice Hot delib- aforethought. save be burdened with erate, and under a formed design, simply operating means above mentioned. Killed by malice So killed aforethought. means above mentioned. What mentioned. By the means above handker- The hatchet and blows—the above mentioned? means were of the The condition water and drowning. chief strangulation, subdivision, is not reached of the mind, mentioned forepart terms, in limited express included the word "so.” It is expressly used, and the instruments means in the death—the effectuating used with the charge, we read used. manner in which they Suppose "so.” What would the in of the word above,” “means mentioned place reading be? M. if kill said Anna aforethought

"Or the defendant did with malice Anna M. Burt Burt, the said wounding by striking, beating, instrument, thereby heavy her head and face with hatchet some Burt, bones of face of said Anna M. the skull and the fracturing murder in etc., find the defendant there, etc., guilty then and will you the first degree.” in facts, believed, constitute law? murder would such degree

What answers the question. A of the Code reading The court charged in this ease was stated, insanity. the defense

As The on the defendant. burden of terms, proof usual placing and bill reserved. charge excepted is embodied rule hitherto in this State on subject

The it has never had the concurrence of an undi- of the court. But charge court. vided bench since the of this organization where the has come under dissent- has been noted case every nevertheless, review, but the dissent has been and must remain present as who delivered the present long judge dissenting ease 515, 9 Texas Criminal is a member the court. King Appeals, States, And the doctrine so announced is held in Davis v. United 160 U. 471. S.,

There in all the evidence in this case that showed was lacking any motive, cause, murder—and was also alleged lacking or reason for the fact, circumstance, or every vestige of which tended thing point Reports. Tesas Criminal 38th

motive, cause, or reason for the on the of defendant. Tinder killing part condition the court over charged of de- objection exception follows, fendant in the seventh subdivision of the charge: “Or do the facts and circumstances show such a reckless disregard human life as includes the formed the -life of necessarily design against If do, slain? person they murder, if it amounts to killing, would- malice.” upon express was,

The objection charge paragraph presented homicide, of criminal and of murder in first phase degree, which does evidence, not arise out of all the facts or of them in and is in no way cases, to this case. Such a would be the law in some charge applicable but whenever and wherever the facts are and relate applicable peculiar, mankind, are aimed at where the murderous strokes fall one or individuals, more within because he or came reach of the slayer. must be confined to the issues raised charge court Case, evidence. 33 Texas Crim. 645. Mayfield’s App., A which has no is radical application error. . Id., Law, Case, 38; Boren’s Wills. Crim. sec. 2337 To constitute murder in the first must be degree killing done by torture, malice, or or with committed in poison, starving, express Code, certain named. Penal art. offenses perpetration Willson, in the authorities on the Judge summing of murder up subject in the first “There must have existed in degree, says: slayer at the mind, time of the homicide a sedate and deliberate and a formed design deceased, to kill or to him some serious harm, do bodily which caused the death of the deceased. The malevolence must be directed at the de- ceased as its There must be a life: object. intention to' take the specific which, deceased, of the him harm, to do serious of bodily doing caused his death.” subsequently The court in. charged follows, the eighth subdivision of ini charge is, however,

chief: “There no definite of space time to inter- necessary vene between the formed to kill and the design actual a killing; single sufficient; moment of time all that is is that the mind required kill, be cool and deliberate its and that forming purpose, design is formed while the mind is in such calm and sedate condition.” was,

The exact objection substance “that there was no evidence on' which to base the That when charge.” there has charge applicable a contest—a assault, been contention-—an physical harm, a hurt—or matter of character, other where has been passion aroused, etc. The channels, law has its never its banks. overflows When is an there overflow, harm, and a distortion of the injustice, law follows. The court will see that this is not a case for such a as that. The charge forces charge mind from the issues made juror’s away evidence, and com- consideration of issues not raised. In this case, to a if defendant pels did he was uninfluenced killing, blood—but by passion far and deliberate scheme that reaching broached, some was even v. The Burt State. n There much elucidated the evidence. for the ground less case, It had no an issue with charge. presented place in the law of this jury, nothing do. What had the jury to do with moments or time—as to when intention was cooling formed? murder, .never was a more deliberate and skill- carefully planned, There was alien matter—and natu- charge executed. This fully part the minds of off to where it was jurors provoked killing drew rally as to the condition mind. slayer’s questionable said, have as to where the burden of In addition to what we be- proof raised, we call to insanity the attention of when the longs, of subdivision 19 the charge. the court the following part has, as before facts which consti- explained, proved “If the State indictment, next in the bill of will your inquiry tute the offense charged be, insanity, the defendant established or has it proof plea has has, the law him, source? If it excuses established from any been him.” should acquit you is, fails to state how charge was and objection The specific of the evidence preponderance is to be proved—by fact doubt, the reasonable charge it fails to puts because otherwise—and issue on the defendant. burden of on proof if the burden is, proof that even contention then, force, and volume raised its credibility, has by when the proof insane, was or was not whether defendant doubt as to reasonable the evidence entitled to the ben- or in that condition was at that stage doubt, should have so stated. efit of the reasonable 20 of the charge, The court other charged among things, paragraph mind, must insanity, follows: “But this unsoundness of or affection the act such a as to create an uncontrollable to do degree impulse the reason and charged, by overriding judgment obliterating sense of right and the accused of the wrong, of choos- depriving power ing between right as to the act done.” wrong, particular part in the use of charge, the word was ex- obliterating, treme—harsh—not only facts, called for unauthorized by the law on the matter subject charged about. The not, law does before will crime, excuse require obliteration of the sense of right wrong, but that the mind only shall be so impaired and the judgment reasoning do not powers comprehend between and right relations wrong. The court charged 26 of the thus: paragraph charge “There has been certain evidence admitted for your consideration, of the examina- tion of the defendant by certain witnesses since he has been con- pertain fined in and jail, acts and conduct of defendant since his con- finement in jail this charge, and his conduct this trial. during This was only admitted for the or purpose throwing explaining light upon insanity defendant, at the time of the commission alleged of the offense for trial, which he is on if it throw does Reports. 38th Texas Criminal and not for the light upon question, any purpose showing trial, committed the offense for which he is on defendant will you for the for which it admitted.” consider such evidence was purpose only it the law? That is to was that character of evi- charge say, thisWas not, limited? If have been it was technical nominally should dence that case. Where the law a reversal of it, requires to give error he should be less punished if defendant be guilty recites was not less five than penalty than years—when nor more than two favor, in defendant’s error, clearly though seven—the nor more than two error. of fundamental Should this nature is in the is error. reversible is for which evidence limited purpose limited? The have been evidence defendant, on other points used, to the prejudice being it is to prevent for Thus, in a case where a perjury, directed. is which it that to than decided, limited, it must be issues show introduced judgment of the fact and so perjury, decisive the jury taken by else it bemay had no element in it limited this here But cases. in other If, at mental condition. only pointed was guilt prove effect, then all the evi- its operation limit however, was proper also, such as that of Dr. limited been have should subject on that dence others, who, Rutherford, and Graves, Gibson, Dr. Burdett, Davis, is to say, line experts—that on the same testified yet being experts, condition mental before of defendant’s from observation testified they limitation, so If the one was alleged killing. subject and after view, limitation, other—and in either limitation or no was the the charge was error. Trice, Assistant the State. Attorney-General, Appellant

Mann assessed degree, of murder the first punishment convicted was death. at murder that ever came before brutal discloses the most record circumstantial, killing as to the the evidence court for review. While trial, admitted on killing convincing. practically

strong butchery human as a defense of the acts of relied insanity evidence, record. There is some its strictly hearsay shown nature, in remote relatives of appellant. to show traces of tending was ever evidence, however, to show that tending appellant There is no man other than a sane way so afflicted. Nor was he ever regarded of this until the announcement was made startling during progress suffice a discussion in detail trial. Pretermitting present proof, save him as insane regarded out of called none six say, experts upon, time of that he was insane at the two, who the opinion except express base their conclu- however, facts, the homicide. The recognized of authority the great weight are at variance with sion And when of sanity. the question and determining rules governing sustaining they give and reasons rules, the facts recognized tested by commis- at the time of the was sane will show their view evidence, there was trial, and that at the crime, sane sion y. Burt The State. tested, so when indicating that insane at time. As against this theory, State contends that the killing upon malice express aforethought, existence of which necessarily implies presence existence of sufficient reason and will power render appellant amenable to the fixed law punishment by for the crime of murder. Motive, malice, reason, and cause are killing made manifest: first, from the fact that a quarrel between dispute his wife appellant occurred on the of the night second, killing; his pecuniary embarrassment and his sale of the household furniture; his precipitate order to flight avoid pros- ecution under then indictments pending against him in the District Court of Travis all of which County, establish sufficient motive for the killing, and will sustain the for murder in the judgment first degree. The numerous assignments of error relied upon by for a re- versal bemay considered under the heads: 1. following The alleged error of the court in witnesses permitting to answer hypotheti- cal questions for the propounded reason that alleged same were not based all of facts evidence. 2. upon The undisputed improper admission evidence of Miss Carrie 3. The want Sparks. of a proper for the admission of predicate and non- opinions experts experts question errors in the sanity. alleged errors, above, court. Various referable to the are general way also of. All of in the order complained which will be considered dis- cussed in the brief for appellant.

1. As to a preliminary discussion of the bill of reserved exceptions to the appellant, objecting hypothetical questions propounded district attorney it is experts, submitted the questions sought to be raised this bill are stated in such a general way—leaving court to inference and reference to the entire statement of facts in order to ascertain what particular phases evidence were omitted in pro- pounding hypothetical questions—that the-bill is therefore defective and not entitled to consideration at the hands of this court. What is meant by evidence,” "all the expression, “all the evi- undisputed dence,” as used in this bill is left to Do exceptions, conjecture. counsel mean State should have included all of the evidence tending shed light question this is all that would (obviously or do mean that the included), should have embraced all the evidence of whatever nature introduced the trial. Looking to bill, answer, we fail to find an but the court left to conjecture as what meant or intended grounds stated in objection bill. A bill of to be entitled to exceptions consideration should clearly of, set forth the errors distinctly complained within complete itself, without reference to other of the record. portions Therefore the objection omitted, should state what facts were in order to enable the trial court to readily pass upon materiality or neces- the facts or theories in the sity including question; and the bill of ip this, should disclose order to enable this exceptions to.pass upon co.urt 416 Repobts. 38th Texas Obimiital identical raised. The determination as to whether questions the a hypo- should be allowed is one for thetical the court to question determine. length, The form of the its as to what should or question, should not contain, are all vested the discretion of questions primarily court. Test., State, 26-38; on secs. v. 1 Rogers Lenning Chand. Exp. (Wis.), 178; Bowman, 509; N. Hunt v. C., State v. 78 Gas Light Co., 8 Gray, Morris, v. 17 N. Y. 202. 169; Daltz Sup., “a cited, As stated in the last case should question not be so framed witness through as to to roam evidence and permit gather as he consider them to be and then proved, facts state his conclu- should this concerning sions them.” Neither court be to roam required of facts in order to through the statement determine what facts were im- admitted in the hypothetical question. The bill properly propounding it, and not leave it to or conjecture should state The rule speculation. settled that the should-not con- hypothetical is well be based on question fact, troverted nor should it involve or incon- questions contradictory It is sistent theories. of an to reconcile duty conflicting expert This is the evidence. of the and the inhibitions peculiar jury, province its invasion witness is well Neither against either court or established. by should the embrace of law or be based hypothetical question questions State, Ind., 496; of other Davis v. 35 opinions experts. Guettig Y.,N. Ind., 94; v. 53 Connelly People, therefore, should indicate the fact obvious, that the objection

It is trial-court to determine whether in order to enable the omitted, facts them of evidence to include with the known rules it would be consonant hypothetical question. what term brief set forth ingenious Counsel an elaborate and in the hypothetical have been included that should eight facts undisputed is suffi- bill of that the exceptions and if it should be conceded question; error that no State it is contended cient to raise the then question, attor- the-district First, because the question propounded is shown: to shed tending all the undisputed embraced ney substantially the commission of the of- at the time of sanity on the light question fense; second, because the propounded evidence, all the both embracing undisputed, disputed experts, theo- on their respective of the various experts and obtained opinions the controverted it to the on case, of the thus leaving ries pass the facts they of the the opinions experts fact questions apply or in- fact, theory, to be established. Therefore every found believed to shed case, tending the circumstances of the ference deducible from witnesses, sanity, before light placed the different their theories presented. and they expressed This enabled to determine the facts disputed the jury apply issue, wit, fact in the main experts to murder. This is made clear defendant at the time of the the trial as follows: court’s bill exceptions, explanation y. Btjbt. The State. “This bill is allowed with this qualification evi- explanation: dence in case voluminous and in very The fact part contradictory. itself one relied on the defense as killing strongest, if not was one of the only ground showing disputed facts in the insanity, circumstances, and it was provable to form a only impossible hypo- true, thetical case assuming the evidence to be because said there was direct evidence evidence was con- killing, and the court stated to would State tradictory part, .counsel be allowed state a cáse based the upon hypothetical assumption that her all the for was true evidence the testimony embracing State, such witness based upon hypothesis; to ask opinion state and that be allowed to the defendant would hypothetical was all and on testimony true, based that his all upon assumption and to reasonable inferences to be drawn from such testimony, express his The based such case. State embraced opinion hypothetical upon its in its the assumed truth question, upon testimony hypothetical of said stated that defendant was witness question, witness, sane. case to based on The defendant then its hypothetical put that all his and based was true on the assumption testimony assump- tion that all to be from his reasonable inferences drawn true, reason, motive, or cause, the fact that without including children, killed his wife and which witness answered upon say he would the defendant was All the insane. hypothesis was embraced and included the State’s hypothetical question combined.” defendant’s hypothetical shows clearly the several opinions were based experts all the facts and on all reasonable proved inferences to be drawn from the testimony, assumed including fact on the part that he killed wife and children reason, without motive, or cause. This last assumption fact was disputed trial, State on the It here was therefore disputed. for State proper to omit dis- fact, well as all other puted facts, disputed from the hypothetical ques-

tion to the witness. propounded expert This rule is well established in State, and is supported great weight authority.

“If the has not heard the in this testimony (as each side case), a right issue has to an from the witness upon any hypothe evidence, sis consistent reasonably méagerly presented on side, may the examination one on fully other; presented court, whole examination within control the trial being whose it is fairly reasonably to see that it is duty conducted.” v. Leache 279; State, v. 14 State, 22 Crim. App., Lovelady Texas Texas Crim. App., 263; sec. on 545; Rogers Test., 265; Insanity, Exp. Buswell on Whart. p. secs. 419; Ev., 373, Jones on 374. Ev., Crim. Jones, stated Mr. follows: “It is succinctly sufficient rule states such facts as the of the examiner tends fairly proof

if the question his claim or theory. can be ex- fairly presents to establish App.—27 Grim. Texas 38 Reports. 418 38th Texas Criminal will include the interrogatory theory proofs pected truth of that since this would to assume the require party adversary, in both criminal denies.” This is the universal rule generally State, 19 Minn., 430; v. 34 Ballard v. Hanley, and civil cases. State Ore., Anderson, 10 Y., 501; v. Neb., 609; v. 97 N. State People Augsbury, 41; McFall Ind., 482; State, Fla., Baker v. 30 448; State, v. 118 Conway 640; Nave 463; Field, Y., 90 N. v. State, v. 32 Ill. Stearns v. App., Aldrich, v. Co., Va., 335; v. 48 Daniel Tucker, Md., 15; Ins. Hathaway 70 65 352; v. Mich., 58; Meeker, Iowa, 74 Woolner Spaulding, 42 Meeker v. Beurcham, Col., 20 532. Miss., 204;. Jackson v. question upon hypothesis frame the “Counsel to be evidence, facts assumed proved truth of all the certain be- is not The question improper simply purpose inquiry. Rogers facts in evidence.” Exp. part it includes only

cause State, Md., 64 65; v. Test., Williams p. fact has its “Each side in an issue of of what theory is the

Again: that it prove and assumes can to be so to the facts satis state of true assuming, and so shapes hypothetical jury, questions faction the correct and such is v. accordingly, practice.” Connely experts State, Ind., 496; 35 v. 66 Y., 464; State, Davis v. Guettig 83 N. People, 550; Ind., Goldson, Cal., 94; Ind., People Goodwin v. St., 104 Pa Com., 328; Coyle district omitted material

If, then, attorney any fact undisputed is in no do for admit) appellant position we complain, (which he elicited the that on cross-examination it is clear expert from all the all the facts and theories evidence and arising witness upon It is well settled that this court will not re- in the case. circumstances such circumstances. verse under Mr. “When has im Rogers, hypothetical question

As said been by certain facts it should including allowed because have em properly has braced, error is cured the cross-examination the omis supplied the witnesses all the facts to the forma before necessary sion and placed Test.; Van Housen v. Cam Rogers tion of an See Exp. opinion.” Mich., 384. eron, 54 to the evidence theories advanced on reference of'

By that if the district it is assumed as plain attorney true all insanity, included, contended for by theories appellant the various him in it would have been tantamount to an question, his abandon- and condonation of this this most ment of atrocious murder. prosecution an fact, for assumed as first, that appellant undisputed Counsel the kill- reason, motive, or cause. was without As stated before, this ing admitted or assumed but on never contrary assump- from the beginning. tion was fact that disputed and his alone in his house were when Miss together wife Carrie Sparks passed woman’s voice and heard a in a pitched high there “I will key, saying, this no shows a longer,” circumstantially stand controversy quarrel and his wife. were alone, between defendant the house They together Bxjbt t. The State. facts night. on the same These are undisputed murdered and she was of the State that there was both cause theory sustain the sufficient to considered in and motive for the when connection killing; especially condition; that he had his received notice to the house impecunious quit lived; that his creditors were hard him; pressing upon for bond; for which he was forgery pending, under prosecutions him; about surrender that his sureties were of appropriation from the sale his household arising goods; his money precipitate flight furnish unexplained Chicago—all motive, ample proof cause, and reason sufficient for his class moral perverts to crime. commit is intensified when theory we view him on the day following the- murder, busily engaged boxing bloody garments bedclothes;; the hatchet with which he committed the foul murder; he was dis- covered alone in sitting cook the kitchen with his hands before his face as if his statement to her that he had crying; trouble—are- all evidences of a him guilty conscience, potent accusing rebuking for terrible crime. and fiendish In view of this array inculpatory circumstances, I can not see how district could attorney sane have conceded that this killing with- motive, cause, out or reason. Therefore the trial court refused properly for the State to compel counsel assume as true these controverted in his facts hypothetical question. For him to have done so would have been invasion of equivalent province the jury, whose pre- to determine the rogative existence or nonexistence of disputed I facts. such a doctrine will never receive the apprehend sanction court, but as has been done rejected, will be court every that has yet passed upon question. evidence,

As said in his work on Mr. Jones section 374: “Clearly is not act as province Hence all judge jury. should so questions calling framed not to opinions call fact, him to determine controverted or to questions pass upon Thus, it would preponderance obviously be testimony. improper ask the witness to state his all the the case or to if the truth of of any given such were in question, part evidence is dispute. When so' framed to call upon expert determine on which side evidence or to reconcile con preponderates, statements, he is in effect flicting asked to decide the merits of the which is a duty wholly beyond province. liberality may Whatever in allowed for the witnesses, of calling opinions they or other experts must not usurp province court and those con drawing jury by clusions of law or fact which the decision of the case depends.” State, v. Page Ala., 16; State, 61 Cole, C., 958; State v. 94 N. Reed v. Miss., 405; 62 State, Bennett Wis., 69, 26; v. 67 46 Am. Rep., McNaugh Case, ton’s F., 200; 10 C. Towlson, v. 139 U. 551. S., & Gas.Co. “The truth of facts a assumed is doubtful cases ques- tion for the find and if that the assumed facts are not jury, they proved, should based disregard hypothetical ques- opinions

420 Repobts. 38th Texas Cbiminal tions.” on Rogers Test., sec. 373. Exp. v. See People Mich., 54 Doley, 148; Richardson, Mich, Trumbull v. 69 400; McClue, U. S. v. 1 Curtis C., on 9; Ev., 640; Ev., C. 1 Greenl. sec. 1 p. Whart. on sec. 452.

If the rule was contended by appellant, witnesses would be the functions of the and decide permitted usurp controverted of fact. questions

2. Ho is shown in the refusal of the trial court error to exclude to the effect that about m. on the of Miss Carrie 7 testimony Sparks, p. house, defendant’s she heard a when night killing, opposite “I will stand no saying, longer.” raised this high key, woman’s voice was in rebuttal the defendant’s is objected tenable, for the case. This is case, but on the line the State’s motive, cause, was reason for there or reason that defendant claimed Burt his wife two only As it was shown that the killing. rebutted time, at this evidence the theory in the house persons show a cause affirmatively quarrel—a and tended to -stage at this excluding testimony The rule regard the killing. rebuttal, be invoked exclude cumu- might unless the proceeding, It within the discretion irrelevant, or is lative, testimony. impeaching demands, il is be- when the occasion rule the court to enforce relevant evidence necessary to exclude any court yond power to shed on the and tending light of justice, the due administration is con- the argument is offered before issue, when same main fact in cluded. Procedure, reads as Criminal follows: “The court 698,

Article Code at time before to be introduced any argument testimony allow shall that it is to a if it due administra concluded, necessary appear the trial court the enjoins upon duty justice.” clearly tion of time before the argument to he introduced allowing to the due administration of necessary jus concluded, if it appear will not regard court be revised trial The action tice. has been Farris injustice done. v. clearly appears unless appeal 105; State, 28 Texas v. Crim. Nally Crim. State, App., Texas App., 416; State, Malton State, v. Texas Crim. Id., App., v. 387; Hendricks 601; State, 32 State, 31 Crim. Gonzales v. v. Texas 527; App., Laurence 611. Crim. Texas Rep., murder, a trial for where witness testified

“On heard having woman at house the evening voice of a defendant’s preceding homicide, for the asked the witness and counsel State ‘Did the noise distress, or as if she as if the was was or joy laughing sound person was suffering pain enjoying pleasure, if as she or if as she crying, noise, as if was the nothing mere idle matter?’ the wit making like a woman’s voice it sounded This was held crying. ness answered that 33 Texas Crim. Maleck and Rep., admissible.” Maleck heard this. His wife witness murdered dur wife were at home when law; so should Burt. suffered penalty Maleck ing night. 421 y. Btjbt The State. 1897.} 3. In that no sufficient was laid regard to objection predicate witnesses Rutherford the introduction of the opinion nonexpert Gibson, Warmoth, of the record will show wife, inspection after detailing that the witnesses their gave opinions long acquaintance with the facts which based their they appellant stating opinions. him Witness Gibson had known eleven detailed at years, length business transaction he had with to the homicide. just prior As said on the trial court in his of the bill of explanation exceptions his the facts “Witness based on detailed point, length, opinion and not alone in this bill.” facts detailed Witness Rutherford facts, related close observa- many together long acquaintance tion. times; He said: “I talked with defendant numberless I discussed all kinds of with him.” other witnesses lived neighbors topics with him observed his him, saw and talked conduct toward daily, his facts, and related detail and said never saw un- they family anything with him. usual or out of the ordinary does not what facts the witness

The law shall state in order prescribe on the is sufficient if he give sanity; states opinion which the is based. the facts upon the refusal

4. Ho error shown permit introduction in evi dence of from works on medical excerpts jurisprudence, the refusal of to read the court to counsel same as the permit views of the authors, as of his The trial court in this bill part speech. explaining “Coun says: sel were allowed to read or all of said extracts as his own views or as do, which he speech, most part proceeded reading of said ex tracts from from said books.” manuscript copies Hr. Jones “Ac says: to the clear cording weight scientific books and authority, treatises can be received as evidence of the matters of con tain” See. 593. Wilson, See Com. v. 1 338; v. Gray, Boyle 57 Wis., 472, 46 Am. 41. Rep., The objection to this character of threefold: First, opin- ions on such questions are constantly undergoing changes, therefore it would be to tell impossible whether the author still entertained the same views; second, it would be evidence; third, hearsay such testimony would be without the oath, sanction anof and the adverse would party not be confronted with witness, and'would have no of cross- opportunity examination. See Ashwood v. Cush., 193, 12 Kittridge, 59 Am. Dec., 178; Bratt, Hd., Ins. Co. v. 200.

In some cases when the sciences, relates to the exact inquiry the rule relaxed, has been and tables of logarithms, of weights measures, and interest, submitted, have been but on within questions falling sciences, is, exact when is not of demonstra- proposition susceptible tion to known and according rules, the evidence is excluded. arbitrary Ev., Jones

On the that the court erred in counsel proposition refusing permit Dewitt, from said authors cites to read extracts Wade jury, Texas, 398. If this case be as the authority govern, adopted proper 422 Reports. 38th Tesas Criminal shown, then error is for this vests the in the sound dis- cretion of the court.

“It has been held that the extent which counsel repeatedly books, to read whether argument scientific, from permitted legal court, is a matter confided to the sound discretion of the and one which unless revise, this court will not it is made to that this discretion appear State, the defendant.” v. 11 has been abused to the Cross prejudice 483; Texas v. 87; State, Crim. Hines 3 Texas Crim. Bowen App., App., State, 3 v. 617; State, v. Texas Crim. 6 Texas Crim. Bingham App., 169; 248. Foster v. 8 Crim. Texas App., App., n Ho abuse of discretion is shown in case. The this court permitted -extracts to be read as counsel’s refused to sanction part speech, it as evidence. The is great weight against of authority permitting at all. practice scientific books to The is reading practice Crouch, not under See any England. circumstances allowed Rex v. C., 94; C., 1 Cox Crim. Rex v. 13 Cox Crim. Taylor, “The same deemed which have been sufficient to exclude objections scientific to be treatises as would seem equally against potent as a right counsel to read extracts therefrom of their argu part ment to the difficult It is to see how distinction can be made any jury. between and how such can right two cases recognized by any which -court maintains the of the treatise in evidence.” inadmissibility Wheeler, 60 Ev., 179; Cal., 581, on 44 Rogers Exp. sec. Am. People 70; Dec., 178, 59 Am. notes. Rep., will understanding dispose

5. A the record effectually proper 7, 5, of appellant’s subdivisions the matters complained brief. Goodall Drs. Joe and given to the evidence refer

These matters sev- appellant sanity reference M. M. Smith and Dr. Wooten trial. trial, and on the weeks prior eral laid to authorize Drs. the predicate raised is objection first The of the commission of at the'time as to appellant’s to testify Wooten shows that while record in argument, urged offense. their exam- based to anything testified of these gentlemen neither mind at the time of appellant’s condition as to in jail except ination “This trial court bill says: on trial. in jail of examination That qualification: following explanation with the allowed from or not his examinations of witness whether asked the testified, he and the facts to was insane examinations, 24, instead 1896. To July time of which ques- answered, that in his tion the witness defendant not in- examinations, the time of such sane at which was a few before days began.” trial their qualifications predicate

As to experts, appears of the best school are of medicine in graduates these gentlemen ato subjected rigid States. examination in ac- They United known to the the most scientific methods medical cord with profession. Burtr v. The State. 1897-1 héad, made of his meas- compared fourteen measurements They urements drawn therefrom with twelve hundred normal and diagram craniums, head normal in almost with the result finding appellant’s Various were then as to will tests made every power, particular. “knee and heels eyes together, talcing him erect with closed standing attitude; known recognized jerks” altogether applying read To tests, making testimony infallible tests. comparative then force of their in qualification every of these will the admission gentlemen to certain acts Dr. Mr. testified Hughes appel- Smith particular. to show the condition of mind at that lant trial as during tending that he It occurs simulating. was time, and putting beyond question in to in this as regard, to me that is complain the defense position trial, calling and his conduct upon had made profert appellant show that he was insane. This gave this in order to attention to special cross-examination, or indepen- to this right by by the State traverse the theory by to or contradict advanced dent testimony tending explain the acts introduced by appellant. had not been warned in jail it is was appellant

But insisted therefore the medical experts; was made by when examination not be way in that could or learned anything result of examination might abstract unexplained proposition This as an in evidence. given considered, when hands, but consideration at your notice require its surrounding attending circumstances be, in light it must is evidence, admissibility its put beyond competency in introduction 34 Texas Crim. Rep., controversy. Adams would be murder. The judicial execution asserts Appellant in trial, arraigned are terrific attorney scathing and district court in the most solemn manner to terms, and this court correct appealed term an “unjudicial proceeding.” How, if these what they please true, correction; be demands a justice assertions and but be- implications matters, to enter on these is judgment your attention proceed fore you there find record. will fail to corroboration Looking you directed assumed in this argument extraordinary position appellant case. Wallace, are facts Drs. regard? Worsham,

What Swear- Wooten, Wooten, at instance of defense, ingen, Tally, made with a view of jail while appellant an examination testing ques- of the seven experts making of his Two sanity. tion examination as witnesses and gave called testimony effect that by appellant insane, their basing opinions what part upon saw What peculiar or “sanctity divinity around” jail. hedges of appellant that, traversed, criticised, it can not be or cross-exam- testimony contend this character may theorist testimony Some ined? cross-examination, or cavil, but such dispute; doctrine question, beyond in the laws of the or land. lodgment recognition found Such never has as.other the same basis testimony. It stands testimony Reposts. 38th Texas Cbimihal {Tyler, criticised, contradicted, qualified, limited, or impeached same as any in the trial given case. When either offers in party evi- dence relévant fact or circumstance tending prove disprove any issue cause, the trial of a disputed right contradict or explain accrues to the testimony immediately opposing party. right cross-examination, exercised introduction of independent evidence, or both. contradictory This is fundamental. Therefore the State had the right to and did offer in evidence the of Drs. Wallace, Worsham, Wooten, Wooten & Wooten, Smith, Dr. Mat most of whom were at the present instance of the defense when said examina- tion was made. Their evidence in this regard confined to the sanity

the time the examination was made and at the time of the trial, and was permissible tending contradict the who insane, said he was experts and shed light the question of his at the time of the commission offense, of .the and was the court limited. properly would a strange doctrine, indeed, that would permit defendant to select and introduce isolated exculpatory-facts, then refuse to permit the State to contradict or them. This would be explain travesty upon and in justice, violation of the fundamental rules underlying govern- the ascertainment of the truth ing any of fact in issue. of of Smoot,

6. the exclusion the Dr. as an Regarding ex- say is deemed sufficient to that he is a doctor of not pert, divinity, medicine, of and made or claim to an pretense being expert a doctor true the examination that he developed of mind. diseases the however, mental philosophy—nothing, on moral and many.boobs read the of to attainment study necessary polite out of the course of ordinary from a distinguished in his as profession, special study accomplishments this bill as follows: "That witness of The trial court qualifies insanity. witness, sustained because witness objection offered as an expert he had testified as a as already lay- himself an expert, did not qualify of the statement facts.” as shown to defendant’s sanity, man as be an witness, claiming not even to ex- this how It is hard to conceive history, clinical pathological the give to know or or pert pretending brain, of disease the theories, any or treatment diagnosis, prognosis, could as regarded .expert. or form of Dnder sanity, possibly the as it in this record appears clearly incompetent laid predicate as an testify There would as much expert. reason require of the lunatic superintendent asylum define the shades of doctrinal difference between the Seventh-Day Adventist and the Hardshell Baptist as there would to have required Dr. permitted Smoot as an testify in this case. the charge

7. assails of the court in five Appellant -The particulars. will be discussed in order objections presented by appellant, except that the the burden objection charge proof places insanity upon 'defendant, which be discussed last. will Btjbt v. The State. discussion As to a I charge, will state is not preliminary there in sentence, or entire line, word charge authorized and de- manded the evidence approved great weight authority. It is that the latter clause of contended (1.) paragraph gave in to find defendant of murder degree first jury option guilty either malice. This express implied paragraph as when read a whole and considered connection with the paragraph malice, to the' defining express open objection urged. The first “did, subdivision informs the that if paragraph as jury indictment, charged with unlawfully, malice aforethought, mind kill, sedate and deliberate and formed did Anna design kill Burt, M. by” all the means the indictment are (here alleged set out), him first The court, “then find of murder guilty degree.” para 7, 8, 9, malice, and 10 defined and the' graphs properly express jury must distinctly told believe its clearly they existence beyond reasonable, doubt before would convict of murder in the first they de malice; includes is un aforethought” express “Malice therefore it gree. definition in subsequent necessary repeat portions charge. 33 Texas Crim. Vela Rep., is, however, no room for the urged

There construction by appellant, in the second language used subdivision of per- paragraph mits the to find a verdict of murder the first degree upon proof malice, kill,” it is clear the words “so as used, are relate implied at the refer back to the condition mind time of killing, well as the means used.

The second subdivision of this if the said paragraph says: “Or defend- ant did with malice said aforethought so kill Anna M. Burt either one or all means enumerated, above will find you defendant guilty murder in the first degree.” insists that the term kill’ Appellant “so refers means; is, skull, to fracture of only hand- tying neck, kerchief around her her in the submerging water, as to body so effect her death arid by drowning suffocation; and that it does not refer to the condition of defendant’s at mind the time he formed the design to kill. Just how this construction can be I am entertained unable to see, as means and the condition the mind first are cojoined subdivision It kill” is therefore clear that the term “so paragraph. relates and refers back both used the condition of the mind and means in effecting killing. Objection made to the (2.) last subdivision of 7 of the paragraph

charge, which reads as follows: ”Do facts and circumstances in the case show such a reckless disregard of human life as includes necessarily the formed design against the life do, of the If person slain. they murder, if it amounts killing, be would malice.” express

It is that this objected a paragraph presents homi- phase criminal cide and murder in the first which degree does not arise out of the facts in evidence. is insisted that this charge is only when the applicable strokes murderous are aimed at mankind in and fall or- general on one 426 Reports. 38th Texas Criminal I more. concede that this is illustrative of one of causes that would in call for the but means by no furnishes the and .question, only call exclusive fact reason that would for the charge question. Ap or. that if were to into a concedes shoot crowd of pellant party people, malice entertaining against slain, specific persons while yet disregard a reckless of human life that would act would show such be to a malice. If this be true as one show where express killing sufficient to circumstances of such wanton malignity, why killed under of a crowd is crowd The true if the entire were slain? facts this case would it not be children, two his wife and inmates only show that he killed cistern, concealed in the bodies found house beside himself. Their suf hand, foot, binding neck—the neck bound, being and tightly their skulls to have death, appearing have caused addition ficient These blunt instrument. circumstances crushed or broken some been suffice to call the charge and malignity deliberate cruelty, enormity, malice-—therefore, was done with killing express and to show 357; State, v. 29 Texas Crim. degree. App., murder in the first Clark 607; State, v. Crim. Crim. Lewis State, v. 30 Texas App., Cook Texas State, 76; State, v. 3 Texas Crim. Gaitan v. 647; App., Swofford App., 544; State, v. 34 Texas Crim. Rep., Texas App., Spearman Crim. that de- 357, it Case, 29 Texas Criminal Appeals, appeared In Clark’s ceased, Blanks, with gone one company sleep by peddlerj them, saw campfire got his passing by gun, Clark campfire. and shot and killed Williams. Deceased was shot went to the camp then head, the side buckshot, the shot entering nearly tearing away off ran killing of his face. Blanks reported the left side shown for the facts killing. only whatever was officers. Ho motive wanton, cruel, malig- malice was the express relied on for .of proof as- Clark convicted killing.' punishment nant manner of the sanctioned affirmed the death,, and this court judgment. sessed Hurt 15 Texas in Lewis Criminal Judge As said by Appeals, with a is where one sedate deliberate mind and malice 665: “Express is evidenced, and this formed another; design proven, design.kills formed intention; inward discovering external circumstances manifest, made discovered, intention, inward formed design, torture, etc., or starving, by lying life taking circumstances external schemes menaces, former concocted wait, grudges, or antecedent the external circumstances harm. These are illustrations of to do bodily intention, do not the formed inward design, discover which the formed field of facts and circumstances the whole exhaust it is intention, If shown by any inward discovered. design, the made manifest—that and de- fact or circumstance—is one with sedate another, formed kills design killing liberate mind and would these external circumstances the formed malice, and discovering express at the time of the as well Tor killing, as before. design transpire be a sudden it be difficulty, may attended killing though cool, deliberate cal- cruelty, enormity, malignity, such circumstances 427 y. Burt The State. n culatingcompassings, or even calm demeanor and absence of as passion, be sufficient to establish the inference will that the Killing was ” sedate, of a deliberate mind and formed the result to design take life/ Wherefore the acts of cruelty as before recited called for and absolutely n demanded charge question. subdivision of the

(3.) eighth charge, which informed the jury, is, however, '“There no definite of time space necessary intervene be- and tween formed to kill design the actual killing,” was also abso- called for lutely by and demanded the evidence in this: As stated, before the evidence while circumstantial, almost positively shows that the deceased was ain engaged quarrel with Mrs. Anna M. Burt sev- eral hours before It also killing.' that after this appears quarrel'the house, nurse returned to the saw them together, and he bore no evidence n ofexcitement or anger. Again, that this theory killing was prompted avarice, is, to obtain the money sold the household and to flee the .goods, desire and country avoid would prosecution, to kill indicate that the was design formed prior and that killing, rash, was not the result of sudden killing inconsiderate impulse. trial coürt tell duty must have killing kill, result been the formed before previously design he would be first of murder in the And .guilty degree. connection is equally authorities, and sustained all the important, there no definite of time to intervene between the length necessary formation of de- and and the actual to so sign killing, proper inform the jury. 20 of the wherein charge, the word

(4.) Paragraph “obliterating” oc curs, of, is which is 'an exact complained copy charge given Case, 279, Leache 22 Texas Criminal and Appeals, time approved and “ (A We time court. again by quote from said 'follows: be, safe and reasonable test in cases would that whenever it should that, at from all the evidence the time of doing act, appear pris mind, oner was of sound but was affected with insanity, such act, and that was the efficient cause of the he would affection not have n donethe act but for that affection, he be ought acquitted. For such ;a dethroned, be the time and the ease reason would power exercise would But this unsoundness of mind wanting. .judgment affection n to create an must be uncontrollable im degree to do the act the reason and charged, by judgment and pulse overriding the sense 'obliterating right accused of depriving wrong as to power choosing right between wrong particular act ” P. n done/ given 311. in the case Hopps People, Illinois, 385, this court. See Williams v. Dal approved by term, las 1897. must a total want reason power distinguish

“There be- crime.” in order to excuse It must be man wrong tween right understanding memory. How. State deprived totally Trials, 764; Trials, It matters not how 19 How. this is ex- State or whether tell- “obliterating” of the term whether use pressed, 428 Eeports. 38th Texas Criminal . ITyler, the jury that should he ing of his of deprived right sense totally is, if test wrong. he can between distinguish right wrong as act, then the he is amenable to law. the Therefore matters particular this is so it the expressed, conveys not how intended. meaning insists, the of the Defendant court the burden of places is defendant to show that this erroneous and is insanity, the proof upon sufficient to demand reversal. for by

The doctrine contended first found expression McCann, Y.,, of New York in 1857. See v. 16 Court of N. Appeals People Kansas, Nebraska, New New then, 58. Since Michigan, Hampshire, Court the Mexico, Wisconsin, and the United States have- Supreme this, Alabama,. As against the contended for appellant. rule adopted Maine, Arkansas, California, Iowa, Louisiana, Massa Kentucky, Georgia, New Missouri, Nevada, North chusetts, Minnesota, Jersey, Carolina,, Carolina, well as Ohio, Virginia, Virginia, South West Pennsylvania, rule as it existed from im Texas, have adhered has time practically sane, men memorial, law that all are insanity that the presumes on it to it is incumbent alleged alleging prove be party any person rule that the burden of Therefore the correlative obtains such insanity. on 57- Best alleging insanity. Presumptions, rests party proof 404, 405; 372, 689; Ev., 3 on Ev., 42, 373, 70; on secs. Starkie Greenl. Coll, 50; 1 on 1234, 1244, on Ev., 1246; Lunacy, 4 on Shelf Starkie Russ, 688; Ev., 340; Homicides, 51; Whart. on Whart. on Crim. Lunacy, 170, 159, 162, et Crimes; seq. Insanity, on Busw. on Nees, Johnson, 158, 5 “To is say said tersely Judge As is is to say the contrary proved, insanity be until presumed human mind.” of the is the natural state fatuity law, rule common Therefore, the universal following acts constituting when the country, great weight authority conse- seeking escape devolves party offense appear, same, before prove ground of the act quences the act. the commission of him for law would excuse to be found literature legal contributions strongest Perhaps Harlan of the Supreme Justice theory opposing S., and the 471), dissenting opinion States U. (160 United Court 490, Hurt in Webb v. 9 Texas Criminal Judge Appeals, in his of the fully and elaborately expressed more disposing State, 9 King case of Texas Criminal 515. To that the say Appeals, there are not to- strong advanced would be arguments persuasive But, admit a want of discussed. from the subject view appreciation entertain, should more arguments these addressed properly we than branch of government judiciary. legislative rule, the Court of of New York of this Appeals After the adoption it, also after which this State enacted articles adopted other States several 722, Code, article Code of Criminal Procedure, Penal 40 of the and 52 court, the rule for mind, guidance furnishes which, to my of discussion. Article the domain beyond the puts Bubt t. The State. rule of known to the Penal Code “The common law provides: shall observed all trials proof insanity, where that respect is in authentic issue.” There record rule at com- advanced, mon law contravening is, above proposition law and the burden of to establish sanity, proof presumes insanity upon it. him who asserts This was reiterated and reasserted in the of in answer to the English judges questions propounded to them Lords, the House of and continues in force to the present day. As said man is judges: “Every presumed sane, be and to possess of to be sufficient reason degree for his responsible crimes, until the con- be to their satisfaction. proved To trary establish a defense on the it be ground insanity, must proved that at clearly the time of commit- the act the accused was under ting laboring such defect of reason, from mind, as disease not know the nature and of the he act quality he or, it, was did know that he doing, did not know he was doing what was If accused conscious wrong. that act was one he that and if act do, that was at the ought same time law to the contrary land, See Bussell punishable.” Crimes, he is 19. p. But lest be as rule law, there at common controversy whether it burden where the just proof lays shift, when it should prescribes it Code, the enactment of article 53 the Penal me, occurs to cuts off line, fixes rule discussion on that beyond of a peradventure “On doubt. This article reads follows: the trial of criminal action, offense, when facts have been which constitute the proved it acccused to establish the facts or devolves upon circumstances on act which he relies to excuse or justify prohibited omission.” This will is so legislative plain declaration of the explicit there seems However, the no room construction. courts in to be construing held, have that “where the defendant article relies universally upon any substantive, distinct, defense, matter as a such as independent insanity, act, like, license to do the or the then nonage, devolves him to upon evidence, establish such defense by preponderance it would error instruct in such case that 'the burden such de proving State, fense devolves the accused. See Jones v. 13 Texas upon Crim. 1; State, 200; v. 14 State, Thomas Texas Crim. Donalson v. App., App., 25; 173; 15 Crim. 16 Texas 17 Texas Crim. App., Texas Crim. App., App., 174; 71; 111; 18 19 Texas Crim. Texas Crim. v. App., Leache App., 279; 22 291; State Texas Crim. 28 Texas Crim. 32 Texas App., App., Crim. 526. Rep., Case, Davidson, said in King’s Judge Case,

As in Smith’s sane, 18: “The law Texas Crim. man every -to Rep., presumes alone will itself sustain the burden presumption proof in State in criminal so far as every is devolved upon insanity volved, until rebutted and it is overcome evidence to by satisfactory fact, burden rebut contrary. Naturally, presumption defendant, and he should be able to and is show rests with Bepobts. [Tyler. 38th Texas Cbiminal and to that extent that the minds and consciences oí the insanity clearly, he was of entertain guiltless on account of can say essential to for the crime charged.” the criminal intent ing responsibility State, 95; 19 Texas Crim. Giebel v. App., To the same effect is Smith v. 151; v. 22 Texas Crim. State, 28 Texas Crim. Smith App., App., 637, State, 32 Texas In Criminal Reports, ap .the Boren Brown district but now on the Su judge, that Hon. Tom (then pears “If have that the evidence found charged jury: you preme bench) doubt that the defendant establishes reasonable beyond in this case which would under circumstances make charged, deceased killed said then, in the first or second order for the degree, murder in guilty him committed, for the from crime punishment to be exempted defendant it devolves him of his insanity, (defendant) the ground if any,'upon evidence, that at time aby preponderance to establish to that would degree exempt he was insane committed crime him Hurt this Judge deciding “We says: from punishment.” read the charge of the court on the sub scrutiny the greatest have with it, of the made light in the to but we objections read it insanity; ject are not taken when well tested urged that the objections by must say could The writer has which be many objections of this court. opinions therein, contained but views on subject my argued principle unshaken in I will them no urge longer, though have prevailed, further their soundness.” He says: belief of “The-evidence is con ease, wit, the one issue in the The regard insanity. flicting - and we can not this issue against appellant, say decided jury sustained the evidence. The burden was on the defend by is not verdict evidence; his triers say insanity by preponderance ant prove this, wrong.” and we can not say failed do that he State, v. State, Williams v. and Hurst Wheatley In Judge Henderson, court, of this adhered and delivering reaffirmed cases, in the and Leache King announced and all the doctrine the other in this State. Brooks Judge cases subject charging upon authorities, in the wake of these case but followed and as before in this individual be the of the members stated, might whatever of this be, the rule should unmistakable, and as to what plain,, court of the Penal Code above should quoted enactments prohibit positive as to conform the so ably urged of the rule so contentions change in this case. counsel the appellant’s in Webb’s Case: “We White do not deem it Judge

As said neces- unravel or to answer mazes and misty attempt sary metaphysical theorists about essen- indulged by opposing sanity being disquisitions intent, and criminal intent essential to being tial to criminal punishable abstruse, and obscure views as to which side has crime, nor their equally of defendant a status in acquires the burden of when the sanity proof, 512, 9 case.” Texas Crim. App., Bust v. State. law, is settled common has been justly characterized

as the of human reason. It has been re-enacted perfection by solemn statutory enactments manifested articles 39 and the Penal Code, and article 722 of Criminal the Code of Procedure. If appellant’s correct, be is our entire and should theory system wrong be revised, for exists, under the law as it could not this man be confined aas lunatic unless it was that he proved was insane. He clearly could not avoid a contract or on the ordinary obligation ground of unless insanity clearly established burden insanity, under all proof the law to which I have had access would devolve him. upon How then can it be said that he can avoid the of the law for penalties the crime of murder on a less than he could degree avoid a 'contract to proof pay money It seems to obligation? me absurd to perform that the burden say him to establish his in order proof to avoid upon $5 con- tract, and would not him to avoid the at- pains penalties tached to the most crime dastardly shocking that ever blotted the Ho, honors, leaves our rule should not history. your be changed, given Judge should stand as Brooks in this case. It is the rule civilized nation governs every globe. has in the past, records, far governed before, so as authentic those have history gone over, the world the few to-day the rule States except above men- tioned.

9. In overwhelming showing view defendant’s the naked assertion of it occurs to me no against insanity, different result reached, have court had though could been even given the theories advanced by appellant. in this case defendant

Under could proof confined jail Hor asylum ground could he insanity. avoid the per- formance of of his civil contracts on such for the any reason, that plea, of instead the in favor of proof insanity, preponderating clearly shows his sanity.

This is manifest when we weigh look to and the and' carefully of by test it known rules If all the determining sanity. be eliminated and by evidence introduced the State leave showing-sanity defendant, to I confidently the case stand alone the evidence upon it is known rules on the to subject assert not sufficient when tested by overcome of sanity. presumption this let for defendant on Dr. question.

How us examine insane, M. he admits that the Swearingen though B. defendant regarded bases his are against reasons which he arrived at and opinion upon He “I saw subject. says: standard weight authority upon children, of his wife dead that the bodies bodies are said murdered, I mutilated and said then it was horribly lunatic, change have had no reason It was my opinion. work that made me form horrible the whole the idea family butchery find “I did not Again: of the criminal.” defendant insanity Repobts. 38th Texas Cbimihal {Tyler, him examining jail any manifestation of physiological fact that he moral On congenital pervert.” he says: “The page most con- mind which my fact to makes me believe the vincing defendant insane is * * * he killed his wife and children. I do that not think man his wife or I know no sane would kill children. medical authority I that bears me out of the case. admit phase that medical au- to,me in this but I is have that thority opposed position, never- * * * I think the defendant understood theless. the nature and char- I he committed. believe the acter of the act defendant knew act he it, if he did was night, wrong. committed that as to Upon act, will desist from the commission of the power whether he had I have no opinion.” then to be found within insanity, any expression

If shows for is held that wrong, medical jurisprudence universally range legal there is responsibility. under such circumstances is, the character the act—that showing insanity regard In from the character of “To seek prove says: cruelty—Mr. Ray less than begging question.” as nothing regarded act would be Juris., sec. 12. Med. Ray’s shown, that is not was as assumes, killing Swearingen

Dr. cause, or motive. As said reason, without for by appellant, contended Crimes, “It that 23: has been urged in his work on p. Mr. Russell It is true that of this crime. commission been shown motive has one; but it dan- very motive, inadequate is no apparently, there must be insane because men fail a man take, to say gerous ground also been said that the conduct has for his act. motive to discern the the offense committing a madman was that of of the prisoner husband, who had arms within time, of the woman’s in the presence down, doctrine to dangerous lay reach; his but it would be a most offense, with the man committed a chance of desperate because a instant him, future before certainty punishment death and the he was there- insane, as if the of crimes was to fore be excused their perpetration Stokes, K.,M. 3 C. & atrocity.” Reg. very Another chief seems to whose consist in the expert, qualification fact is a near relative studied the case and the man for weeks, two by giving concluded based facts not in opinions authorities, at variance with all the in- ; is, sane that did not exist and not assuming something that supported evidence. stress Dr. Appellant lays great McLaughlin’s I fail to find fact he testified to that sanity. any could be of comfort to of the defense. counsel After had stated all his theory of theories and facts, including unwarranted that he killed disputed assumption his reason, motive, cause, Dr. wife and children without or said: McLaughlin him I certainly judge morally “I would to be insane. mean moral in- so affected and has no sanity depraved sense, moral person well; He knew him his reasoning has faculties.” family physician. Burt v. The State. He noticed “I insanity;” “never evidence had not any and would never it.” He further said: have “In suspected my opinion, any man who would kill his wife children great without motive is insane.”

The this eminent can guarded expressions physician fair'con- struction made to Burt was insane. say It lay that no witness who knew Burt well significant and had asso- ciated him and him regarded observed him as closely insane.

Then, State, to the we find the distin- looking most guished Texas, men the medical versed profession well and skilled mind, disease of the careful study man, after examination of the case, him history, history sane. pronounced Worsham, Wallace, Wooten, Wooten, Davis, The testimony Drs. Smith, feigned case, while blow the issue of crushing insanity will stand as vindication for visitation ample supreme pen- law on this murderer. He has been heartless tried and con- alty rules; demned and constitutional according legal palliation or excuse go can be for his brutal acts. “Justice should not offered begging through the realms of law.”

Therefore, judgment it is submitted that should be respectfully affirmed. Presiding Judge.

HHRT, E. Burt was convicted in W. the District Court of Travis of murder in the first County degree, jury assessing The in this.case, death. evidence circumstan punishment though tial, establishes killed his wife beyond controversy appellant case, two little under the circumstances being children. homicide, evidently highest he was of murder attending guilty degree, if was insanity. sane. The defense

First that counsel for the State assigned: error submitted appears case, Wooten, Dr. and then asked his opinion expert, Dr. Wooten answered as to the the defendant. expert him then submitted believed sane. Counsel for State answer. Counsel evidence, case based on all of the same and received case, defendant then submitted his from obtained hjqpothetical Dr. the answer that in his defendant Wooten was insane. opinion As from the bill of full defend- appears exceptions, given opportunity ant to obtain expert upon any supported hypothesis case, inferable from notwithstanding sub- mitted his case to the and counsel for State submitted its expert, yet because the appellant objects, was obtained before a full case What, had been submitted. therefore, are the rules governing this pro- ceeding? Indiana, Court of Supreme speaking through J., Coffey, case of Davidson v. Indiana, 261, 34 N. E. 972, Rep., “In say: witnesses, examination counsel may embrace hypothetical questions such facts as he deem established the evi- dence, and, if counsel opposing does not think all facts are established App. 38Texas Grim. —28 Reports.

434 (cid:127)38th Texas Criminal in such he them in included include question, may questions propounded course would in endless wrangles cross-examination. other result Any what facts were and what were not established.” as to over the questions Test., 39; v. Ind., 550; Rog. v. 96 Stearns Exp. Goodwin Citing Field, v. 90 New asserted Stearns Y., 640. The Field, proposition 90 N. “If an is counsel expert proper, follows: York, 640, is as of facts state assuming the existence a hypothetical question, ask does assumption An error in tends to justify. fairly the evidence which if is within possible objectionable, interrogatory not make not is And it seems that of the evidence. range probable Citing, facts in evidence.” only part it includes because improper In v. Y., 464. Cowley People, 83 N. cases, v. Cowley People, other among ad raised is as “Another question says: the learned judge supra, sworn as medical experts question put missibility hypothetical not be question may put is that the hypothetical The claim witnesses. manifest, if. It is existed. facts unless states the the expert, facts, it can as to the be. there is a that, dispute in a trial where rule, for the hypothetical would be room there jury, only settled the word is that it meaning supposes—assumes— very question. its. Each side in the issue of facts for the time has something being. facts, that it can state of the and assumes prove of what is the true theory and, assuming, so the satisfaction of so jury, shapes hypo it to be such is the correct questions experts accordingly, practice.”' thetical Lake, Y., 358;. N. Smith, Dec., 2 64 v. Abb. v. 12 People Erickson Citing Fellows, N. Y., Seymour for do not contend did not to.

Counsel State submit and, full case as the basis contention expert opinion, made, it is not true. The contention is counsel for State sub- defense,, based its testimony, mitted case exclusive of for the upon and obtained and then to submit to. expert, proceeded a case evidence, based and that the should expert have not been until a full given case had been Hot submitted. that a full case submitted, was not but that it submitted until after an answer was given by the Hor expert. is it contended that counsel for de- fendant did not submit a full case to the expert, obtain his opinion thereon. The bill of How, shows that this was exceptions then,, done. a case based all the evidence was to the presented by counsel for the as well as counsel so, for State. This can being we hold that the answer which was obtained under the above circum- should be error stances held this judgment should be reversed. counsel should, case Suppose stating hypothetical unintentionally ignorance, omit embrace therein a fact relevant through and the should because all the party object, facts are sanity, opposing within the attention to no fact calling not embraced Should omitted, complain? judgment be permitted would no. be error? error, Certainly, if this should of such because reversed hjrpothetical must be included relevant fact which is If every Bubt v. The State. 1S97.} then, assert, to authorize answer from the we there are expert, elsewhere, if the hut few in this State who have lawyers, any, to a of submit this character. capacity hypothetical correctly witnesses, a in which are a each great Take casé there number swear- to acts of the accused number ing covering great and conversations transactions, to all manner of social and business to his facial ex- years, able to cull this mass of testi- huge etc. Who would be from pression, relevant submit sanity, that which was mony Avouldbe pertinent to the Avithout some fact omitting expert, perhaps inevitable, Failure and to issue of would be sanity? permit Averenot because all of the facts embraced in the opposing party object case, account, and on reverse the on this judgment hypothetical appeal in cases; result in the reversal of all this character of judgments would of the benefit on a altogether party deprive expert testimony rule; result of being case. This probable Avhere, in hold, case, much should we as a full greater reason case has or the the State been submitted as the basis for (whether by defendant) an answer, error, be no there would no reversible error. and-especially We are not treating of case Avhichthe an gave Avith- expert opinion out hearing evidence. This Avas question discussed Webb State, v. 9 Texas 490, Criminal and in Appeals, Leach 22 Texas 279, Criminal referred to Appeals, counsel Judge White, appellant. his opinion latter says: “Where the has not heard evidence, each side has the to an right opinion from the Avitnessupon any hypothesis consistent reasonably Avilhthe evidence, and, if meagerly in 'the examination presented side, on one bemay fully presented other; the whole examination within being the control of the court, whose it is to see that it duty fairly reasonably conducted.” It would seem that learned below had judge case in mind in the trial of the before us. uoav

Miss Carrie testified for the Sparks State that she knew where defend- ant lived on the 24th 1896; that, day July, about 7 o’clock m. of p. house, said she was said day, passing and heard a voice—a woman’s “I high, am not voice—pitched saying, to stand this going thing longer.” That she was toas positive day, tone high voice. Counsel asked the court to note their to this exception evidence, because the same Avasnot rebuttal. The court replied no objec- tions been made. Counsel for defendant then moved to exclude the evidencé, because not in rebuttal. This the court refused to do. In this error, there Avasno because the court had the discretion to receive evi- concluded, dence until the whether in argument rebuttal or not. to relate to the O. H. Gibson was business permitted transaction which he had Aviththe defendant. The transaction occurred a tew days for defendant homicide. Counsel because objected, before the the predi of the Avitness Avasnot a testimony cate laid sufficient basis an as defendant. expression sanity authorize opinion that, overruled, ansAvered Avas and witness his opinion, de objection Eepobts. 38th Texas Cbimihal sane; is, was then at the fendant time transaction. To this hill of learned judge appends following exceptions explanation: “That said witness was asked as to defendant’s with him about the of his conversation check time before Wednesday 1896, witness detailed at the facts 24, length which he July set out in statement of facts much more based his than opinion, fully that, the facts bill, detailed, answered was, in this defendant time, sane.” We are not required at that to consult the opinion, statement. If judge’s statement of facts counsel for the verify statement, satisfied with this should have were not inserted accused But, all that Gibson stated. in the bill of exceptions at, that, found is looked it will be not an this witness though expert, the defendant. This give was qualified sanity Case, 37 Texas Criminal In that not like the Williams Reports, stated as of their' facts were the basis non-experts opinion. case no full detail gave very witnesses of facts. Here the was to as permitted give B. A. Butherford to for made the same Counsel to this objection appellant. Gibson, above, he did to the the learned testimony witnesses judge In exceptions. same to bill to this explanation regard bill gives observations as with reference to Gibson’s the same we make himself to he above, very clearly qualified give holding 'of the accused. on the sanity to read certain from standard excerpts proposed for appellant

Counsel and the disease of The insanity. State medical jurisprudence on works reserved objection, and defendant sustained court and the objected, on read the brief of carefully appellants We have bill of exceptions. seem confident and, very while counsel case, this phase author cite no these excerpts, in rejecting an error court committed subject. no statute on We have contention. of their ity support must there of England law to the common evidence known rules of v. Reg. In law question? the common What is fore prevail. for indicted the willful was Cox, Gas., 94, the prisoner 1 Crouch, Cr. We quote insanity. was defense set wife, of his and the up murder at address to the jury, in his “Clarkson, for the prisoner, case in full: work, Surgery,’ entitled author’s ‘Cooper’s to from quote tempted not Alderson, B., thought justified subject. on the opinions it, lord, as the sentiments embodying I quote my Clarkson: doing so. it is admissible in and submit that the subject, who has studied of one on matters appertaining scientific as opinions the same way .men not allow Alderson, B.: I should in evidence. law be foreign given con who was Any properly law. person read a work foreign yon adds his own examined, personal then he be might" versant with from have derived he may the information knowledge experience individuals, not their written opin must the evidence books. We have to hold otherwise. if we with books be inundated ions. should We Alderson, authority. high one of book to be I shall prove Clarkson: 437 Btjbt v. The State. 1897.}. B.: mend the You surely But can that matter? can not contend that evidence, and, you may give not, the book what right have you from it in address and do that quote your indirectly which would not you course? be to do Clarkson: It permitted ordinary was certainly done, lord, in Alderson, Case Clark & my M’bTaghten’s B.: And [10 F.]. shows still more strongly necessity stringent adherence to the rules our laid down for observance. But for the noninterposition case, in that would judge not have you probably thought necessary to make this now.” The case of v. 13 struggle Cox, Cas., Reg. Taylor, Cr. 77, was murder deed another case. The was done by cutting the throat of the deceased in the a child about 9 presence only old. Coun years defense, sel for the addressing jury, set on the up insanity part read a case from prisoner, Taylor’s Medical Juris proposed .Brett, "That is no in a prudence. J.,.says: court of justice. a mere statement man of by medical hearsay facts of cases which he in all I can not allow it probability present. to be read.” In line with this common-law rule will found the cases Ash following: Cush., 193; v. 12 Kittridge, State, Wis., 472, worth v. Boyle 15 N. W. 827; Wilson, Com. v. Gray, 337. We from Rep., quote Boyle evidence, follows: "Medical books can be introduced supra, nor can an permitted testify statements made witness therein; and it is inadmissible to clearly reading such book permit counsel.” “In the trial of a jury by criminal where the de fense relied is the books defendant, neither of estab .on subject lished on the of insanity, by whether written medical reputation men or nor of lawyers, statistics of the increase as insanity, stated by the court or counsel on the of another trial can be read to the jury." Wilson, Com. v. 1 337. Gray,

Counsel to read the same from these proposed excerpts standard works of elaboration explanation argument. court refused to done, allow this to be defendant reserved his bill of exceptions. The preceding and, authorities cited are in question point, in addition, Wheeler, Cal., 60 581; Bratt, Md., we cite Insurance Co. v. People 200; Test., Rog. sec. Exp.

Dr. Davis was the stand as a witness for placed upon etc., defendant, after his.acquaintance, with the he proving was permitted the defendant was testify is, that simulating; that playing part, This was acting naturally. objected defendant, by “because imma- terial, and would throw no light by which to read jury solution of the of question or no guilt guilt defendant as to the issue before the wit, or jury, sanity the defendant on the 34th of July, 1896, the of the day alleged offense for which trial; defendant was on that simulatipn simulation or no at time, this and in the present surroundings defendant, of would not to aid the help jury determining whether this defendant sane or insane was on the 34th day July, 1896, when offense for which he is on trial was to have alleged been committed. All overruled, and the objections reserved.” The exception learned ¡Reports. 38th Texas Criminal this “that witness testified exceptions stating bill judge qualifies during the defendant and his demeanor observed carefully that he seven that he had himself trial, qualified which had lasted about days; had offered in and that the defendant himself an previously; as expert de- defendant, of the he way manner and evidence the appearance as an of his at trial, insanity evidence during himself meaned unusual demeaned himself The defendant had quite time of the trial. under these circumstances trial, on such a to an individual ordinary intentionally trying play he was then as to whether or not the evidence and this was admitted, put question was insanity simulate part an- had been in other bills stated question witness after that From this explanation appears him.” swered manner of his testimony field offering this entered trial, evidence of at that demeanor during appearance him, and evi- could follow introduce the State time. Unquestionably, same matter. was evidently dence as to this purpose appel- evidence, to convince the that, this lant, introducing when he was was insane at insane, the time of the probability then right admitting court was clearly homicide. The testimony. witness, was also submitted to this and he The hypothetical the defendant was sane on that, in his the 24th day opinion, answered are here raised the same as those 1896. The objections presented July, Wooten, submitted to Dr. to the hypothetical reference will above, go and therefore we in this over opinion treated again. discussion n that, at the request appellant, a bill exceptions from It appears and took the dimensions of the to the jail, and others went Dr. Wooten defendant, there, símil talked and, examined defendant, while of the Dr. him. The State him, proved and observed him, looked at that time. defendant was sane it was his opinion Wooten facts. When we con- statement refers us to the bill of exceptions the ob- facts, clearly we are sult the statement Wooten'were sufficient to warrant him of defendant amply servations error in admitting and there was no testimony. giving reserved to the of Dr. bill Wooten exceptions Another but, when as to the sanity as an considered in the trial judge, of error light explanation presents of the what- the ever. on the stand for the whom it was placed

Jack Hughes fact defendant he had noticed the that the had his shown that struck before, the the window frame day passed head the against through time the had it was the defendant done so in window, only that said through window the trial. It passed during times he many in had offered evidence the the defendant appearance appears trial, in and out of the coming going his manner during himself facts. This courtroom, etc., as the statement of presents shown by y. The State. Bubt same we have discussed relation to the defendant above find We no error this matter. simulating insanity.

After Dr. that he was 50 years Smoot proving by age, minister of and, such, Church in serving Presbyterian gospel, city' Austin for and that he had read some authors twenty years, on moral and science, intellectual but or medical nothing jurisprudence, that, to him in his appellant proposed prove opinion, the defendant was insane on the 1896, 24th July, the day offense is alleged have been committed; and the State objected, because Dr. Smoot was not an The court expert. refused to permit witness to on this testify phase case, and we think the was correct. ruling This witness was offered as an when in fact he expert, was not an It was not expert. proposed his prove as to whether opinion defendant was sane insane from what he knew of defendant, his associations him, etc., simply obtain his as an opinion expert.

We are not informed of any case that because holding is in prisoner jail, unwarned, therefore his conduct can observed, not be so can give as to sanity. would be a remarkable indeed, which accused, insane, would simulate We sanity. can not how the comprehend fact he was in could jail affect his con- duct in this manner, particular therefore the ruling court in regard to the of Dr. M. M. Smith testimony was correct. See Adams v. State, 34 Texas Crim. Rep.,

The matters contained in the bill of exceptions reference to the of Dr. testimony Goodall Wooten have been of in disposed treating the bill of exceptions relating of Dr. Wooten, herein- testimony before discussed.

The objection White, R. testimony sheriff, E. is not well taken. He had defendant, and, warned the warned, after being anything admissible, defendant stated to him was and he had a right give as to of the defendant. Having stated detailed conversations, facts, acts, and his observations of the he was qualified give an In opinion. this, addition to we will not be forced to peruse statement of facts in order to ascertain whether the witness qualified himself or not. before stated, As of counsel for duty to set forth the facts in But, the bill of exceptions. satisfy ourselves that the learned acted judge we have examined the properly, this witness in the facts, statement of and find him qualified as a witness.

Objection was made to the of the court. think the charge charge We is an admirable one. It court, was the murder in duty defining the first degree malice, to “Do upon express charge jury: murder the facts and circumstances in this case show such disregard reckless of human life as necessarily includes a formed life of design against the slain? If do, the if it amounts to person murder, would tilling, malice.” This upon express a number amply supported by sane, authorities. If it would be almost for the morally impossible Keeorts. 38th Texas Criminal committed, to be under the circumstances this case

homicide (the slain own and two little without having wife children) prisoner homicide, with its malice. circum- attending being upon express life, of human which is the disregard a reckless con- stances, evinces malice. There was no clusive evidence this express passion attending was in the same homicide, and the defendant’s condition when he mind he killed his two little children. killed his it was when We are wife as of.the is correct charge eminently when viewed as whole. modes, A and methods, number of instruments were alleged to have '

been used -in the of the crime. The indictment perpetration alleges it was then and there and “by striking, beating, the-said Anna wounding M. face, Burt and with a batchet and instru- her head some upon heavy ment, a better of which the are grand jurors unable to description give, skull and bones of the thereby fracturing the face of the said Anna Burt, M. around then and there the throat tying tightly and neck handkerchief, of said Anna M. Burt a strangling thereby suffocating Burt, the said Anna M. then and there wrapping around the head of said blanket, Anna M. Burt a body same securely tying thereon and then and there rope, Burt, said Anna M. so throwing wrapped tied, in a cistern water, filled with sufficient partially submerge of said Anna M. Burt.” body This indictment drawn. correctly Where there is doubt about how the death was it is well produced," to put indictment; means every suggested and, by proof be made proof means, of one of the it is 'them all. unnecessary prove It is not neces- to cite to sustain this any sary authority proposition.

If there was error in the charge court, consists in the fact the court submitted murder in the second degree We jury. however, correct, believe this to be practice, and safe. The prudent, law, this is the charge subject" not obnoxious to upon any objection. The court the usual to the burden of gave charge regard proof appli- to a case in which the cable accused relies insanity, charging upon the accused show his My the burden upon insanity. opinion upon to what I said, has been and I can add have nothing this subject expressed, Case, 515; but the of this Texas Criminal King Appeals, majority this submitted subject court charge upon jury hold is unbroken in case is correct. The rule in Texas support If the burden insanity. this case given upon he is not entitled to reasonable insanity, etablish the defendant to then he If the burden be upon doubt proposition. State* to establish required sanity beyond claim should be that the State might him, burden, must he doubt; but, discharge being upon a reasonable not do this a' insane. He need beyond that he was satisfy done. must be doubt, but this reasonable that, notwithstanding enormity insist Counsel trial, and legal to a fair entitled yet to appellant,

acts imputed reversed. trial, should judgment not had if he has" that, 441 Btibt:'.t.‘"Thb State. 1897.1 extent, and, "-fullest if we believed that to the We this indorse proposition trial in the committed in this least calculated preju- error had been not accused, we would hestitate to that say dice of. the the rights the are of after a careful reversed; opinion, should be but we exam- judgment and close attention the paid ination of this' record of argument the we for the whom have no learned counsel defense (than superior), the has received a fair and trial. The legal question fact appellant whether the was sane or insane was submitted to appellant the jury. The conflicting. however, evidence is We are of opinion, great weight the favor "of the testimony defendant; but be as the has settled the may, we think question, have settled it properly.

We are of should affirmed, the opinion judgment is"ac- so ordered. cordingly

Affirmed. MOTION" BOB EEHEABING. Burt,

And now comes W. E. appellant, moves the court for a re- case, in this for motion for shows to the court: hearing grounds 1. the The court misconstrued the record on first discussed ground by the for a case, viz., court and reversal of the urged by out the witness, the growing hypothetical question put Dr. State; in that the statement the is not Wooten,.by borne record, out as will set out in be more by fully state- accompanying arguments. ments and

2. erred in sustaining The court contention appellánt’s growing 3, in that the court does not deal with the out of bill of real exceptions therefrom, but confines itself to one only question, that springs viz., the main undiscussed whether question, leaves and undecided as against original admissible defendant to was testimony objected have withdrawn on whether, not, it should not been evidence, and so to do. motion of defendant objection testimony erred not sustaining

3. The court 1, 2, number subdivision made bill of Gibson, exceptions of H. as O. that full and intimate was not of with appellant because his acquaintance on facts. The him to give which would authorize character bill, and facts was embraced he testified as to of what substance bill said his the trial judge qualification court was misled turn- in error in not facts, and the court was to"the statement of referring any part is made thereto in reference of facts when the statement ing to Stats., 1362.. 686; Bev. art Code, art. Penal of the bill. raised over regard manner erred like

4. The court as raised in A. same reason of B. Butherford and evidence 1. of bill subdivision Reports. 38th Texas Crimihal The court erred in sustaining objections testimony 4,

of Dr. Davis shown bill number the court exceptions because record, in the first misconstrues the misstates consequently place the status when the conditions surrounding .question trial as to simulation appellant during State. De- put fendant had “entered the field of evidence by offering never manner, trial, and demeanor during appearance, at the time.” The court misled insanity- by something record; second, not in the court fails to discuss or decide the from said bill in questions springing regard case or This in to said witness. court is fatal error when it question put parallels arising the from bills taken to the Drs. and question Wooten testimony A at glance Davis. moment’s them demonstrates the The difference. bill made to Wooten is the thereof (number 2) speak through qualification court, the viz: He the makes same to this qualification bill as does to the bill taken as to the Dr. Davis then testimony, and “The proceeds: State, a based on after'asking question her hypothetical further testimony, the his a case, asked witness based opinion upon hypothetical embodying all the The bill, the evidence in case.” to the Davis number qualification 4, was as “And the court to counsel that the follows: stated State would a to state allowed based the that hypothetical upon assumption true, her was all the for the testimony embracing the ask the witness that the opinion based such upon hypothesis, defendant would be ease, allowed to state a based the hypothetical upon his true, that infer- assumption testimony was all and on all reasonable ences to be drawn from such and to his testimony, upon express such case. The State embraced all in hypothetical its its testimony hypo- thetical witness question, assumed truth said upon question in stated was that the defendant sane. The defendant then case to the put hypothetical witness based upon that assumption true, all of his was testimony and based on the that reason- assumption able inferences be drawn from true, his testimony were including the defendant, motive, reason, fact that without cause, killed his wife children, which witness answered question that hypothe- sis the defendant was insane. All the evidence was embraced and in- in cluded the State’s defendant’s hypothetical question combined.

6. The court erred in that holding the examination of Dr. Thomas D. Wooten of in defendant when his jail, sole business was there measure his was head, sufficient to authorize him to as to the mental speak condition of the defendant four months before.

7. The court erred in holding testimony Jack admissn- Hughes ble in bill of presence of taken same. exceptions concerning

The court the conditions misapprehended surrounding case time, and gives reason for its decision of this that are not point record, viz., that defendant had entered into the domain show he was insane the trial. during y. The State. Bust record in discussing

8. The misapprehended court Dr. He was used as a witness Smoot. lay regard raised bill used as when the bill arose. witness, and then sought sustaining charge court, 9. The court erred trial wherein infer malice if jury might killing the court charged express disregard showed reckless of human of it a life. manner charge where such has is not be- killing being place, was well considered. The decision charge lieved this part ruinous on law, and was to defendant trial. misapplication on subdivision 10. The court erred-in the court’s failing pass "Or if the said court uses the defendant did language: where the charge, Burt,” so said Anna M. malice kill defective aforethought arraigned authorizing a verdict murder in the charge expressly is, malice aforethought,' and not ex- degree, first on implied'malice, failed to consider said error. malice The court aforethought. press fatal to said in the defendant. allows of charge error viz., to convict him of given construction save malice, and the court erred in not degree the first implied murder therefor. holding reversing so court, in not that it was not error trial holding

The court erred that where set as a defense the holding its bur- up on the State but on the defendant. den of is not proof erred in of the trial court The court further upholding defendant, on the issue of on the of insan- proof the burden which placed of that the rules of because the statutes Texas ity, provide law, to the known to the common in of respect insanity shall be proof at issue, in where is observed all trials of the question rule law on that as declared Court of the subject, common Supreme court, law is that States, a common the burden of proof United State; on of that such decision Court cases Supreme law, land, of a is the law of claims the dignity supreme appellant Texas, 40, thereof. Vide section Penal Code of benefit protection States, S., 469. yet further, and Davis v. 160 U. And United because which under charge, compelled of said labor upholding trial, his in violation burden of his on of article proving of States, of Constitution the United and also 5 of the amendments 14 of the amendments of the Constitution of the 1, of section article amount, as to amount, is such error does States, gross United law; under of in this: denial fair and trial due impartial process to a of a rests, the bur- State, always It from the which same shifted upon (1.) in effect requires den of criminal charge against appellant, proof an offense of which he innocence for him to establish his (irresponsibility) he was a reasonable doubt not until guilty; beyond had been proven innocent crime, to be thereof. he was presumed of some guilty proven the United States It as a citizen of abridged immunity, (2.) be- proven, innocent the State behalf, e., be until presumed i. element, doubt, including him material against every a reasonable yond 4áA'-- Reports. 38th [Tyler¡, Texas Criminal or mental to establish the offense with responsibility necessary he was charged. or tended to him of his life

(3.). deprived without due deprive pro- law; and, cess of law; Denied to him the for it him

(4.) protection equal required him, a 'to not proven against offense burden not disprove yet imposed on with all with other crime under the- appellant equally persons charged laws of State of Texas.

In view all the facts—the involved—the- gravity questions no less their decision to than his importance right appellant—being motion, and that a. may orally argue life—he asks his counsel him. rehearing may granted to motion was a most brief ar- able -and supplemented by [Note.—This not, which,

gument submitted, owing length, its can points reproduced, regret to the Reporter.]

'ON MOTION FOR REHEARING. Judge. Presiding HDRT, in this at. ease was affirmed The judgment 1897, term, court, the Austin on case comes before us now motion for rehearing appellant.

In original we discussed the as to whether or could be obtained stated partially hypothetical1 case, this discussed question being with reference the bill exceptions: regard T. D. testimony Dr. Wooten. The same subject in a bill of of Dr. Davis. presented exceptions regard the testimony We disposed in the bill of question presented ref exceptions said, erence to the Dr. Davis by reference to what we had to the bill of as to regard Dr. T. D. exceptions Wooten’s Coun testimony. for motion sel appellant, insists that is a rehearing, there mate very rial difference the bills of From the record exception. it appears Dr. Wooten was introduced and a sub him, mitted to and that this did include all of the evidence- the bearing Dr. Wooten upon question sanity. answered the question that, in his sane. opinion, defendant was Afterwards the State asked the his witness based a case all the- opinion upon hypothetical embodying evidence in the case, which the witness upon the same expressed opinion is, the State’s first that that upon question; appellant was sane. Appel lant then to the question witness put based his' hypothetical upon the theory case, and which witness answered upon that the defend ant was A full was allowed to get insane. the opportunity opinion as to- the based to be any hypothesis defendant’s inferred sanity upon from any in the case. that objection procedure was the State- an upon the witness’ opinion incomplete hypothetical obtained case. Let full argument case, the that the concede for containing us the testi defendant, the or the either State must im by offered be embraced mony, t. The Bust State. done, case; still, the if this was not no can be hypothetical complaint Wooten, to the of Dr. because urged by regard testimony appellant case, after the submitted his the defendant had witness an hypothetical that, swered in his the was-insane. opinion, appellant Dpon ground of reason or common sense could heard to of this appellant complain matter in the this bill. was shape presented by Appellant permitted case, form a not alone hypothetical but upon testimony, upon any trial., all the testimony introduced When upon the whole case was the witness answered that his was put, that defendant sane. opinion was When case, defendant’s based him, offered upon testimony witness, to the he answered that defendant was put insane. But it will be observed that the bill shows that the State submitted the case, whole which the witness that answered defendant was sane. upon We can how can of this. As to comprehend appellant the conten complain tion of appellant opinion only upon partial incomplete statement of the we will treat of this when we reach the bill subject of exceptions to the of Dr. Davis. pertaining testimony Dr. occurs a bill of Davis was introduced as an ex- exceptions that the State submitted a case based its testi- pert; hypothetical upon the answer sanity, obtained mony bearing upon question was sane. The defendant because all the objected, testimony was not embraced bearing sanity upon question hypothetical further shows that the defendant then State; case but bill put by witness, that all based put upon assumption case to hypothetical true, reasonable drawn from his testimony including inferences to be reason, motive, cause, the fact that killed his wife without children, that, the witness answered which upon question upon insane; that he would the defendant was all of the hypothesis, say was embraced the State’s upon sanity testimony bearing question com- defendant’s question and the hypothetical question hypothetical bined. in the original opinion,

We to us the discussed question have presented of Dr. to the testimony of the bill of pertaining treating exceptions Wooten, case which is: Can the State submit a hypothetical does testimony bearing question not include all the upon sanity, from the or must the question obtain con- expert; propounded .whether sanity, tain all the evidence intro- bearing upon defendant, and believed to the State or the whether be true or duced by hold, did in the State? as we original opinion, false We can formulate such facts hypothetical embracing State bearing as it deems proper obtain competent, that, We hold if the of an defendant is not expert. satisfied ease submitted has the privilege case, not as embraced in his only submitting testimony, course, introduced on the trial. Of if the ease sub- and all unjust is unfair and the court will appellant, the State mitted so, fails to do and the defendant if the court this; and proposes correct Reports. 38th Texas Criminal submit a case all the embracing facts bearing the upon question, and he is denied right, error would be patent. bill Recurring the of exceptions pertaining of Dr. testimony 'Wooten: If the last correct, proposition the State was under no obli- and was not gation, required submit the full but had the right to submit the case which it thought supported testimony, bound to submit a case involving testimony believed the State And be false. we of the repeat disposition bill of exceptions as to Dr. Wooten’s of the bill of testimony disposes as to exceptions' Davis; for, Dr. State is not testimony bound to all embrace then it was not testimony bearing upon subject, do required to so Wooten, reference to Dr. after having so, done had no appellant right to complain.

How, Is it we have this question: necessary, submitting hypothet- case, for the to include of the ical State every particle bearing in order to obtain a legal answer from the question insanity, upon so, If the contention the Davis appellant bill expert? excep- founded; for that bill shows that the tions is well was obtained opinion case that did not from the embrace the expert upon hypothetical theory defense, and did not embrace all the testimony hearing upon The therefore is: Must sanity. question question hypothetical case submitted to include expert testimony bearing upon in order to obtain a legal answer from the question sanity, proper In the we discussed this and held original opinion expert? very question, We have seen that was not necessary. nothing our change opinion The authorities are just But it upon subject. way. is con- that we have tended counsel for settled the law to the con- State, 490; v. 9 Texas Criminal Appeals, Webb Leache v. trary State, 279, and in Williams State, 22 Texas Criminal v. Appeals, Texas Criminal Reports, here

How, assert that the discussed has never been question we pre- case before either Court Court of Criminal Appeals, sented of this State. Counsel for or the Court appellant cites Supreme Appeals, Court, but relies the cases of Webb upon no case decided by Supreme What was State, State, supra. and Williams v. State, Leache v. State, before the court in Webb v. It was as to whether supra? question unless could heard all the testi- give or not an expert opinion at issue. was not a case in which the mony bearing upon case was submitted who had not heard the evi- The arose in this manner: Stone, dence. Dr.- witness for the defendant, testimony trial, heard all the introduced on the and gave as he had heard no evidence of accused causes, other could not such as in drink explained indulgence cross-examination of Dr. Stone, or debauchery. asked was, based what his witness Pool. Dr. from the evidence of Pool alone he would answered have con- Stone the mind of insane, and believed at the sidered Webb time the 447 y. 1897.} Bust The State. _ offense was particular committed, to be more or less disturbed from some cause, but not to the extent to relieve him from entirely In responsibility. the court “that passing, the witness had heard say all the in testimony case, the and did not believe the defendant insane. This opinion, founded the whole included, must have upon testimony, include, and did the testimony did, witness Pool. If it then how could any injury result to defendant that, too, by asking, cross-examination, the upon of the witness opinion alone, of Pool upon testimony we confess we can not conceive. It would have been otherwise if the had expert heard and case; formed his the whole for in opinion upon case the question and nave answer would been not only but improper, illegal How, inadmissible.” it will be observed that in the Webb Case the hy- pothetical question was not to an who had propounded expert not heard testimony, had heard all the It expert evidence. be in- that, sisted if it is for the to hear necessary all the expert before testimony an giving opinion, therefore it is absolutely necessary hypotheti- cal case submitted to an who did not hear the em- must brace all the testimony bearing upon question We sanity. are not called upon but the pass upon question; reasons for the one rule will not to the other rule. Take the apply most enlightened expert, let him hear all the he can arrive at a testimony; correct conclusion as accused; time, to the at the same called to state upon conclusion, all the facts from which he makes the he would most gener- fail. The from the facts is mind, made ally impression without upon But, the facts in the ability statement. be this as it produce involved in question the Webb is not may, Case be- How, us. it is true fore that Presiding White in that Judge case states submitted, that the full case must be and he asserts that all the authorities support proposition. We find to the contrary, that overwhelming weight authority “that the supports proposition State has the right its submit hypothetical case, and, if the accused is not satisfied with it, he can state his case.” hypothetical proposition conclusively established authorities cited and, in original addi- opinion; those, tion to we desire to cite the elaborate in the ease of Coyle Commonwealth, Pennsylvania 117. To be more explicit: “Each side has the right to from the witness upon any hypoth- evidence; esis consistent with the reasonably and, if meagerly presented side, the examination on one bemay fully other, on the presented whole within being court, examination the control of the whose duty How, it is to see that it conducted.” fairly reasonably us is one which the State its presented theory presented to the are now of the bill of expert. (We treating excep- case hypothetical had to Dr. Davis’ State to se- testimony.) right tions in reference evidence, and to base a case its theory hypothetical lect the State to be true. The defendant had a thought facts which state of the state of facts which he be- to submit hypothetical right course, if the statement of case for true. Of a hypothetical to be lieved Reports. 38ti-i Texas Criminal unfair and unjust appellant,. objections the State matter; court would have controlled this but that does raised, the been almost in this case. would be the State to impossible not appear introduced embrace all the testimony the fact that the State believed that

without impressing embraced in case were in fact true. and circumstances of the evidence This, to the State. It would be the nature of great injury would be a Ror would the State to controvert. proposed of facts which a concession him to all the facts in his embrace require the defendant to it be to just to show as well as sanity insanity—when which tended statement—those in fact to the testimony, proposed impeach believe the he did not manner, to show in some tending sanity to facts swearing witnesses the unreasonable and not in fact were true. The record or to show ‘that full statement was made the State that a its very presenting shows true; of the facts believed to be and the record also shows that theory the so, the case. This theory defendant the presented being was expert case in of the whole as can be possession effectually presented prac- a trial a case. tically upon Case, the in

In the Leache was to the supra, question regard placing under the rule. from the record that the appears experts experts rule, under the and did not hear the testimony the other wit- placed error; Leache contended that this was reversible that he nesses. had the to have the so that hear the present, they might right experts testimony in an White states “that it was give opinion. Presiding Judge order case not shown that the to the was defect- hypothetical presented expert in not all the facts essential to an submitting intelligent ive nor opinion; was such as would have been that the given opinion differently the witnesses, (cid:127)evidence been heard these directly by their conclusions it, (cid:127)drawn from and not from the statements of it. hypothetical We can the discretion of the trial 'that was abused in perceive judge the mat- that, defendant; is, in ter to the of the prejudice the placing experts rule, under the therefrom was shown to have prejudice resulted to the That was the only question judgment. appellant.” remarks of to the rule were not called for White Judge regard to the necessary states, raised; of the but he question disposition relying upon Coyle State, 117, "that, Commonwealth, where the Pennsylvania expert evidence, each side has the has not heard to an right from the opinion consistent with reasonably evidence; and, witness upon any hypothesis in the side, examination on one it meagerly presented fully pre- other, on the the whole examination sented within the control of 'being court, whose it is to see that it is duty fairly con- reasonably Case, involved in the .ducted.” The Leache was question supra, simply rule, action of the court under the and all putting experts observations made to the rules presiding judge regard cases to an But were dicta. submitting hypothetical expert .control an concedes that side has from the witness right each consistent with the evidence. This concession reasonably hypothesis y. Bust The State. that all the assertion authorities agree is made face of an short give opinion upon anything inadmissible permit evidence in the he has heard it, whether personally stated to him hypothetically.

In Case, the Williams supra, only question before the was as court to the of Dr. admissibility testimony Armstrong, who expert, testified that he had of the heard a part testimony, but had read account of the on newspaper testimony witnesses on trial of the case. previous The court stated thereupon trial, same in the testimony present permitted witness, over the objections give an appellant, opinion as of the defendant. We held in that case that the newspaper report was nothing but and that it hearsay testimony, was not for the competent judge to such a put stated, further, witness. We that, if the statement eliminated, newspaper the witness was not au- thorized to give his based only heard a having part testimony witnesses. So the here was not raised presented ease, said and what was said us in to the Webb referring and Leache Cases, was not at all supra, to that necessary decision.

We misunderstood the bill of reserved exceptions Carrie thought We Sparks. that the to testi- only objection urged this that it was not in mony rebuttal; but, was since our attention has been called the bill to in motion the we find that rehearing, the appellant moved to stated, exclude the evidence the grounds, condensely irrelevancy, house, that was not shown to have been the appellant a number of other objections. We therefore have the as to not, case, whether or under the circumstances the of this evidence record, witness When we was admissible. we look find the that tended that the circumstances to show was at home. strongly appellant The there, Mrs. Burt well as time short places case, after heard. we are being was expression have no admissible, that the was its testimony relevancy. doubt counsel that defendant argument was conceded of appellant’s there is no But it question. killed his wife and children. About this two of this witness bears on the strongly ques- is contended that the evidence way. not it in that The testimony tion of We do understand sanity. stand no exclaimed, thing longer!” “I will To shows that Mrs. Burt it was disclosed. Whether the ill treat- she alluded is not “thing” what whether it the insane conduct the defend- husband, or was ment of the made of the have been because exclamation ant, is shown. The man, in- insane have been might of an unnatural conduct strange left in towards his wife. We are the ill treatment appellant duced by could not have been made This exclamation this subject. the dark upon home; and the evidence shows other not at no servant, for she was by however, insists, Burt. evi- Appellant Mrs. there except female home. The witness ex- Burt was at heard the 'to show fails dence App.—29 S8 Criin. Texas Reports. 38th Texas Criminal clamation after 7 o’clock in the It is shown that evening. defendant was between 8 and 9 there was home, o’clock. exclamation made at his and the conclusion reasonable that it made was his wife to him. Be concedes, and the this as it the case facts of may, appellant unquestioned admit, he killed his wife and children. We demonstrate that might evidence; of this no not, yet injury do the incompetency we possible It is a strained conclusion that could have resulted appellant. to show of de- in the house tended the sanity remark made the female fendant, resulted from the insane act for, stated, might as before have believed, believe, had a right If the they appellant. defendant, clearly made wife the exclamation was appellant’s re- believe, no harm did not so then was admissible. If they the evidence in- that the believed sulted to the If the jury appellant. exclama- concluded sane, it, about have they may had doubt deranged of her wife, misconduct tion was made because some insane, that the remarks husband, did or, if not believe a field We are made of the ill treatment of defendant. because .left inadmissibility cán conceding but we speculation, perceive, of this how, appel- facts for the under the argument, being- and children could he killed his wife injured; lant have been that the exclamation How, it reasonably a conceded fact. must appear nothing sanity; tended show the witness Sparks testified could else; and, this is have resulted. injury unless made appear, admissible, of' But we are that the evidence was of opinion independent these considerations. as fol- malice

The court instructed jury upon subject express malice, which is “(6) lows: essential to constitute- Express absolutely one, sedate, degree, murder the first exists where with mind deliberate formed kills another. When an unlawful design, unlawfully (7) established, of the mind -of the at. killing condition party killing, time, just just before after is an considera- killing, important and, homicide; determining grade determining tion im- not, whether murder has been malice or committed express a Do 'the facts and circum- for to consider are: portant questions jury that, stances in at the after the case time of the and before and killing, time, evi- it, satisfactory connection with or relation furnish having mind, killing, dence of a and sedate deliberate person part at the time he does the act? And do these facts and circumstances show slain, formed a to take the life of the or to on him design person inflict harm, some its and which, serious in conse- bodily necessary probable in his do and quences, result death? Or the facts circumstances may the case of human.life as neces- show such a reckless general disregard If person includes the formed the life slain? sarily design against do, murder, if it malice. killing, amounts will upon express In first must degree, order to warrant a verdict of murder in the malice (8) existed; is, be shown must satis- jury the evidence have by evidence, doubt, fied from was a killing a reasonable beyond y. Burt The State. formed to take the life design per- of a previously consummation to kill was formed killed, design and that the with deliberately son time when the mind of the is, at the was person killing sedate mind—that of' the act contemplating consequences and capable self-possessed is, however, no definite space done. time neces- to he There proposed to kill and the actual design killing. between formed to intervene sary All is A moment of time be sufficient. is that single may required its the mind be cool and deliberate and that the de- forming purpose, mind to kill is formed while the is such calm and sedate condition. sign When the evidence satisfies the mind of the a reason- (9) beyond jury, doubt, able that the was the result of a formed killing previously design deceased, the defendant to kill and that the by design when formed sedate, the mind calm and and the conse- capable contemplating him, of the act to be done and such killing further quences proposed by malice, shown to unlawful and done with then the homicide have been murder in first verdict be rendered accord- should degree, your To warrant conviction of murder first degree, ingly. (10) evidence, doubt, a reasonable must be satisfied by beyond defendant, act, before the formed the with a deliberately calm and design deceased; sedate mind to kill the he selected and used the weapon instrument or means sufficient to the death reasonably accomplish by mode and manner of its use. The act must not result from a mere sud- den, rash, and immediate design, from an inconsiderate im- springing, excitement, pulse, passion, however unjustifiable unwarrantable How, be. evidence, believe from the (11) you reasonable beyond doubt, that Burt,-in Travis Eugene Texas, State of County, on or 24, 1896, indictment, about July with charged unlawfully, malice with a sedate and deliberate mind and aforethought, formed de- kill, sign Burt, did kill M. then and Anna there strildng, beating, Anna M. Burt wounding the said her head and face hatchet and instrument, some the skull and the heavy fracturing thereby Burt, Anna M. then and face of said there bones of the tying handkerchief, around the throat and neck of said Anna M. Burt a tightly the said Anna M. suffocating Burt, and then strangling thereby there around head and of said Anna M. Burt a body wrapping blanket, and same thereon with and then' and securely tying there rope, Burt, tied, said Anna M. so in a cistern throwing wrapped partially water, Burt; sufficient to of said Anna M. submerge body filled with did, with malice so kill said Anna aforethought, or if the said defendant Burt, one or all of the means above will enumerated—you M. either so find of murder the first state degree, the defendant guilty confinement in the State verdict, and fix his death or your punishment life, determine and state in verdict.” as you may your penitentiary which reads Counsel for to that objects portion kill did, so aforethought, as follows-: “If the said defendant with malice in the Burt, M. will find the defendant of murder guilty said Anna you It murder first is insisted that this authorized a verdict of degree.” charge Repoets.

38th Texas Cbimihal in first a state of degree, case which demanded a verdict of mur- do degree. der in the second We not so understand the It charge. has reference to the of the directly preceding portions in a charge, which clear and manner define murder in the first remarkably explicit degree. least under degree intelligence, No with the in juror charge given the verdict case, could conclude that of murder in this the first degree it could be rendered unless was established a reasonable doubt beyond ¡the ¡evidence accused, calm with a mind and formed de- design, killed his wife. This portion has charge reference to liberately and, it, kill,” means, when “so and of says preceding necessity in of mind forth in the means, the manner condition as set preceding However, of the there was no to the charge. objection charge; portions it must have been calculated to and, ease, the rule is that being this is supported by any of the accused. rights proposition injure Texas, cases, ease being Bishop number of the leading in As we said rule, original this injured? Tested by appellant in this case. The learned in the second degree there is murder (cid:127)opinion, n counsel appellant, sane, that, if the accused was admitted in argument, it is malice. If this be true—and express of murder guilty he was have resulted from could injury no possible true—then ¡absolutely n charge, be correct. construction if the appellant’s that, judgment, if we affirm for appellant counsel It is insisted of this decisions to the law, contrary previous contrary it will be If affirmed. law, ought this judgment If court. contrary cor- decisions, wrong, being and those decisions are contrary previous not con- in to be affirmed. ought rect all other the judgment respects, tended counsel that a has change opinion wrought legal injury in him of a defense. legal him so as to appellant, misleading deprive of this sort is We have discussed the cases referred Nothing intimated. in have laid down a different rule which he insists that we appellant shown that no case con- We have regard expert. Leache, Webb, shown that here raised. We have tains dicta. of the court were mere Cases, the observations and Williams supra, its changed has concede, for the that this court argument, But ¿re no right has now, the appellant correct if we is not the case); (which to deprive calculated in no manner misled been having to complain, observed, But, we have before him of a defense. legal never has of an expert obtaining the manner of regard to There this case. presented this court shape been presented is not dicta, has been sup- but there has been no change opinion, ex- careful this record a most given authorities. We have ported by thor- and are verdict, amination, in the light consequences not hesi- and would over appellant, the fate pending aware oughly had been deprived if we thought appellant to reverse the judgment tate re- the record tending nothing we have found right; of a legal legal right. has been deprived to show that motely of the ac- fact, guilt conclusive of the sufficient, evidence is amply v. The State. Bttbt is all beyond question by cused; supported the verdict of in the record this court evidence; nothing authorizing and we have found to reverse judgment. overruled, and the filed rehearing by appellant judg-

The motion ment affirmed.

Motion overruled and judgment affirmed. Judge. I concurin the conclusions reached DAVIDSON, pre the bill As to whether the testi siding judge. regard exceptions is, so as to raise the of the witness Dr. Davis mony complete, ques expert of the trial to said issue, tion at I the qualification judge quote simply voluminous, and in bill: con very part "The in the case was as one itself, relied on defense The fact of the tradictory. killing dis of its one strongest, insanity, not was ground showing only, im circumstances, facts in and it was puted only by provable to form a in the case possible case all the evidence assuming hypothetical true, because there was no direct evidence and said killing, was and the court stated to counsel that testimony contradictory part; the State would be allowed to state case based hypothetical upon that her assumption true, testimony was all the evidence embracing for the and to ask the of the witness "based such opinion upon and that hypothesis; the defendant would be allowed to state a hypo thetical case based upon true, that his was all assumption testimony and on all reasonable inferences to be drawn from such and to testimony, based express such opinion upon case. The State em hypothetical and, braced all its its testimony the as hypothetical question, upon sumed truth said the witness stated his that question, defend The then its case to witness put hypothetical ant was sane. defendant true, all his based on the based on the assumption testimony that all reasonable inferences to be drawn from his assumption testimony reason, motive, or the fact that without true, were including children, witness question his wife and answered cause, upon killed All was insane. the defendant say such he would hypothesis upon in the State’s ques the evidence was embraced and included hypothetical combined.” It will be seen question tion and defendant’s hypothetical that two questions of the judge hypothetical from this statement State, and the other based evidence for the based upon stated—one witness answered upon The expert defendant. for the the evidence sane, and defendant was question State’s hypothetical he was insane. defendant put the hypothetical the testimony conclusion forced to the answers, we are these Taking mind of the ex but led contradictory, incongruous only case, it is evi a state Under different conclusions. two pert on the trial adduced the facts embracing dent that a hypothetical first having without the witness answered not be could in this respect to, such testifying witnesses credibility mind his own decided of the witnesses credibility do. The course, he could This, of facts. Reports. 38th Texas Criminal {Tyler, in this given and the to be their State within weight entirely Then, we have the province jury. as stated in the judge because no presiding sharply presented, question was to the witness put the entire covering testimony adduced relation to insanity. then, is as to question, whether the wit ness can be asked hypothetical questions the different involving theories, without him in requiring one question all the pass upon testimony adduced. It is conceded by Judge that, Henderson the testimony incongruous can contradictory, asked, hypothetical questions pre theories, the different senting the witness be to state his required on each. I agree that this can be done presiding judge event, either If were not whether the facts are or not. this disputed true, be endless as to there would confusion interminable discussion facts, or or not. That the what are the whether the facts are incongruous manner1is may be to the witnesses this sus hypothetical questions put tained In by weight sounder rule. authority, support State, 476; I refer to v. 37 Texas Crim. Shirley proposition, Rep., Ev., 372, Jones on sec. and notes for authorities; collated Stearns v. Field, Y., 640; 90 N. Harnett Y., 641; Vose, v. 66 N. v. Mercer Garvey, Y., 56; Bascomb, Vt., 398; 67 N. v. 35 97 v. People Fairchild Augsbury, Y., 501; N. Guiterman v. Co., 358; 83 N. Y., Com., v. Steamship Coyle St., 104 Pa. 117; Pidcock v. Potter, 68 Pa. St:, 342; 46 State v. Klinger, Mo., 224; Vt., v. 296; Ev., 105, State Hayden, note. Steph. Dig. p. Jones, Mr. in his work on Evidence thus (section states the 373), ques tion : “The facts are and it is sufficient if generally dispute, the ques tion fairly states facts as the of the examiner tends proof to estab lish, and his claim or It can not be fairly presents theory. expected include the since will interrogatory proofs theory adversary, truth of that which he would a to assume the require generally part}' denies.” He is here discussing practice putting hypothetical ques include all the in the tions. If one side fails to hypothetical matter on cross-examination. fully other into the go question, will the matter before This, circumstances, fairly jury; under all get I have examined on the authorities by is commended a such practice Ind., 550; and there are State, 96 v. See also Goodwin the question. effect. other' cases in Indiana to same Judge. reached a ma

HEFDERSOF, by to the conclusion I agree I as to rule of case, practice disagree court in this jority to an expert hypo reference propounding therein laid down with counsel for concede, contended appellant, do not case. I thetical laid down this court. ques been heretofore the rule has ever 9.Texas Crim. of Webb in the case involved more nearly tion Case; Williams but an Case or the the Leache in either 490, than App., to disclose that the question fails Case of even the Webb examination White, however, in rendering opin Judge the court. before properly it, and so conceived discussed ques- to have ion in appears y. The State. Bttbt 1S97.] that, hypothetical ques- to he' propounding the rule tion, stated all the evidence of insanity, developed on the tion to expert on trial he embraced put should the, witness. The judge discusses party’s presiding expert cases, matters involved in said I them, and will no further refer to save to suggest that I can not understand how counsel for so strenu- ously insists in his motion for rehearing that he was the de- misled cision in the Williams Case as to the rule laid down in propounding hypothetical question to an when the expert, Case, Williams at the time the Burt Case was tried, had not then been decided this court. The question as to the proper interrogatory to an wit- propounded ness was not before the court in the Williams Case, and what was said on subject that case, on a careful would reading, obviously appear the legal mind to be merely dicta. Besides, as above stated, the Burt Case Wastried in the District Court of Travis County the 27th day November, 1896, while the Williams Case was not decided 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 v. Shirley State, 37 Texas Criminal Reports, 476, decided by court on the 10th of June, 1896.

The opinion in said case would indicate that this very had question come directly before this court in the decision of that case, and the opinion would appear lay down a different rule than that contended for by ap I pellant. from the quote follows: trial, “Upon counsel for the State submitted two G. B. physicians, Beaumont and C. M. Alexander, a hypothetical case. The physicians gave as their opinion that the sane, not appellant only but that he was feigning insanity. Counsel for objected appellant to this opinion, because the hjpothetical full,,and case was did not include the testimony introduced appellant tending show insanity. objection was not well taken. Tf not with the satisfied case submitted to the hypothetical doctors by State, it was the of -the counsel for duty counsel to sub appellant mit a case made of all the of the doc testimony. Again, up heard-alone; that had tors was not based testimony they upon conduct, observed his had made examinations appellant, they evidence delivered the witnesses was based and the opinion upon On an the conduct of appellant.” observation of their personal in the latter record, suggested it will appear, part that inspection case were examined said experts upon hypothetical opinion, examination of the with their personal in connection put, I think it be said that the may question his conduct. their observation witness case hypothetical one’s expert upon to be tp propounded Shirley in the Case. involved fairly accessible, all the authorities which are I think

After an examination this: That when the issue in- rule on this is subject the true simply into, is introduced that gone question, and upon 456 Reports. 38th Texas Criminal introduced and a by party, hypothetical question is pro by such pounded witness, to such he party should embrace in such hypo thetical the facts that have been developed evidence that bearing, issue which are not incongruous which are not dis If facts puted. are incongruous or are him, of disputed by course he would be authorized to omit facts; and, such on cross-examination, the could, if opposite party fit, he saw in addition to the hypothetical question witness,

put by introducing party propound hypothetical own, of his and add thereto such other facts as have been omitted occur him and which to be material. opposite party, might Either should party be authorized to. cases hypothetical embracing propound embrace the facts believed facts; is, each would disputed party Such a course adversary. him be disputed true which may to be Insan., 263; Busw. sec. fairness. See with fraught me to be seems to 550; Ind., Fairchild v. v. Ind., 496; Goodwin State, 35 Davis v. Vt., 335; Co., 48 Steph. Dig. Ins. v. Vt., 398; Hathaway Bascomb, 35 course, be found to the con can, of Authorities 'note. 105, Ev., arid p. authorizing the extent them go and some trary, facts as a embracing only party to an expert to be presented St., 117, and Stearns v. Com., Pa. See Coyle to present. desires Y., 640. N. Field, 90 stated is not only the rule above' supported by to me occurs All of it is authorities, logical. but that facts best'considered the-issue of are a bearing upon insanity part adduced are in that all of respect. Certainly, the undis character 'the defendant’s serve to shed him, light his character facts puted pertain to Flow,if the evidence contained a great his sanity. many respect character, and a few of these are culled out eccentricity indicating facts did not might say indicate necessarily an expert, and put whereas, if all the defendant; eccentric facts are presented indicate If; more they clearly insanity. say he might expert, of facts, a number some great embraces indicating sanity the record over, and the facts alone are indicating insanity insanity,’ and others presented hand, was On other that the irisane. might say party an he expert, the facts are submitted to the he indicating sanity expert, might if only whereas, sane; if all unhesitatingly say was the facts in party in the submitted to the he hypothetical are combination question, as his or the case sanity insanity, that indicated be. say might all the facts in mean That when evidence I this: bear say What the defendant are undisputed, the issue ing upon State to to a respond hypothetical question is adduced the expert fairness, should, in common embrace all that the facts. question put, form, alone constitutes character for This, in concrete or in all the based facts can aloné shed and the opinion any light sanity, be of serviceto the any or While I jury. believe this to means rule, no follows that a ;ret it'by case be correct re ought this method of propounding versed where case hypothetical has not been . Bttbt t. State. 1897.1 I followed, and would not be understood as case holding any ought to. is not hypothetical reversed because a in the first put proper full instance where is afforded by party calling expert, opportunity for that witness. Much less would I cross-examining opposite party agree that to a on the may object the opposite party hypothetical question facts, his ad ground that it does not embrace conceal from the benefit of his facts as adversary, or refuse to state for are versary, bar, embraced In the case at full hypothetical question. oppor was afforded tunity a full cross-examination to case the-appellant put to the or to character of expert, put any from the arising fit; saw and I do not believe that he refuse could avail himself and then opportunity, ask reversal of the case be cause a full hypothetical ease had not been Further, State. I put do not believe that the bill of in this case exceptions raises this fairly ques-' tion. The authorities hold that the bill be so full and .must certain 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 proceed ings and attending circumstances below to enable the court appellate know certainly error was committed. The judge must certify truth of the facts upon which exception is and the predicated; taking of an without the exception, recitation of such facts in the certificate of will not judge, be remedied allegation the grounds upon which the exception taken. The bill of exceptions must itself certify the ground, itor must reasonably from the bill appear itself.

With regard testimony of the witness Carrie I think it Sparks, sufficiently the exclamation heard appears she was from the wife of to him. It was and was addressed made on the appellant, evening about shows homicide, 7 o’clock. The evidence that the only inmates wife, children, small said were the two house appellant, absent, nurse. time the nurse and children were At that particular could else have been anyone suggesting there True, and his wife. the evidence is time, save the appellant house at the that it was voice the wife ad- fact establishing not positive circumstantial, it was but, while husband her (appellant); dressed to exclude the idea that almost certainly character to. was of such wife, other than the by any party made have been could expression shows The evidence positively husband. than her other person hour, at that from the house pre- children nurse and absence of the at that time there of appellant the presence inferentially sumptively the State to show the admissible I believe wife; and and his she she the residence appellant, that, passed Sparks witness Carrie as if exclaim, someone, tojie, addressing a high voice woman’s heard a be used and this could the State for longer!” this any “I will not stand motive, tending suggest sanity. and directly showing purpose observations, I conclusion reached agree foregoing With the the court.

Case Details

Case Name: Burt v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 9, 1897

Citation: 40 S.W. 1000

Docket Number: No. 1581.

Court Abbreviation: Tex. Crim. App.