Pigg v. State

| Tex. | Jul 1, 1875

Devine, Associate Justice.

The defendant was jointly indicted with one Smith, charged with having stolen a gelding, worth seventy-five dollars, from John Christian, the owner of the animal, and without the consent of the owner. The defendant, Pigg, was alone tried and convicted of the offense charged.

The first assignment of error, that the court erred in excluding testimony, (referring to the bill of exceptions,) is sustained by an examination of the grounds of exception, which in substance are that “Dr. Tarpley, being examined as a witness, stated that he had been a practicing physician about thirty-eight years; that he been the family physician of defendant’s father about two years, and was called in by defendant’s father to see the defendant, who was ill; that his mind was affected, and that the disordered condition of his mind was not caused by his then sickness.” This witness mentioned other facts noticed by him at different times relative to the strange conduct of the accused. Upon which defendant’s counsel asked the witness “whether he was of the opinion that defendant was of sound or unsound mind.” The State’s counsel objected, and the court sustained the objection. In this the court erred. The previous questions to this witness, and his answers, authorized the putting to him the question objected to.

It was shown that he was and had been a practicing physician for many years; had been the family physician for two years; had attended defendant when his mind was in a disordered condition; in fact that he was a witness whose opinion was worth in this case more than most witnesses could possibly be, by reason of his long experience and peculiar facilities for observation and knowledge of the defendant.

In cases of this character, the opinions of medical men on the facts stated by them “are constantly admitted as to the cause of disease or death, or the consequences of wounds, and as to the sane or insane state of a person’s mind.” (1 Greenl. on Ev., § 440, and 2 Greenl. on Ev., § 371; 12 Ala. Rep., 828; Beavan v. McDonnell, 26 Eng. Law and Eq. Rep., 541; Shelton v. The State, 34 Tex., 666.)

The accused was entitled to the benefit (if any) arising from the answer of the witness to the question propounded.

The refusal of the court to permit the witness to answer the question deprived the accused of a clear legal right. How far his defense may have been prejudiced by it, we cannot say. It is sufficient to know that it was his right to have the question answered by the witness, and that it was relied on as material to his defense.

The exceptions to the charges given, and the refusal of the court to give the instructions asked for defendant, are not sustained by an examination of those charges. Those given were substantially correct, and those asked by the defendant, and not embraced in the general charge, were framed in language more favorable to the accused than the statement of facts would justify.

As the judgment must be set aside for. the error in excluding the answer of the witness Tarpley, and the cause remanded, it is not considered necessary to refer to the fullness or insufficiency of the evidence in this case. The question is presented in this court, which was not made in the court below, that defendant was charged with the theft of “a gelding,” while in the statement of facts the term “horse” is alone used. This, in all probability, was an error committed in making out the statement of facts. Admitting, however, that the word “horse,” instead of “gelding,” was used by the witnesses on the trial, the following remarks of Chief Justice Eoberts, in Mathews v. The State, decided at the late Tyler term, are in point in this case: “It may be said that the witnesses in using the term ‘horse,’ had no reference to the technical sense in which it is used in the statute, but in the sense in which it is used in ordinary conversation.” And that the jury so understood, and had a right to understand, the witnesses to mean by the term horse such an animal as was described in the indictment.

There being no question raised in the court below, during or after the trial, on this alleged variance between the charge and the proof, it is not now necessary to decide this question, “ as it is not likely to be left in doubt on another trial.”

Reversed and remanded.