93 S.W. 550 | Tex. Crim. App. | 1906
Appellant was convicted of assault with intent to rape, and his punishment fixed at thirty years confinement in the penitentiary.
Appellant reserved a bill of exceptions to the action of the court permitting non-experts to testify to the sanity of appellant, without giving the facts and circumstances upon which they predicate their opinion as to the sanity of the appellant. The bill presenting this matter is long and voluminous. A careful perusal of it shows that the county attorney was permitted to prove that witnesses had known appellant for some time, and that in their opinion, he was sane. They did not testify to any conversations and acts; — such conversations and acts ought to have been detailed and testified to by them, in order that the jury might pass upon the matter as well as the witnesses. If the witnesses had known appellant for a number of years, and would detail rational conversations and rational acts on the part of appellant, stating his vocation, what business he was engaged in, and how he conducted his business, and then testified that in their opinion he was sane, under the authorities this would have been permissible. But where the witnesses merely testify to having known him quite a while, it is not proper for them to give their opinion as to his sanity, without stating the facts upon which that opinion is predicated. These matters are thoroughly discussed in Williams v. State, 37 Tex.Crim. Rep.; Betts v. State, 89 S.W. Rep., 413.
The seventh special charge requested the court to charge the jury that they could not convict defendant for any act done by defendant at any other time than the one the State elected to prosecute upon. In prosecutions for rape it is not proper to prove more than one act, and where more than one act is proved, without objection, it is the duty of the court to limit the consideration of the jury to one specific act. Powell v. State, 11 Texas Ct. Rep., 129.
We note in the court's charge in attempting to define assault, he adds the following: "The injury intended may be either bodily pain, constraint, or sense of shame, or other disagreeable emotion of the mind." This should not have been given, unless the evidence suggested aggravated assault. Fewox v. State, 14 Texas Ct. Rep.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded. *513
