39 S.W. 687 | Tex. Crim. App. | 1897
Appellant was convicted of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life, and prosecutes this appeal. Appellant is charged with the murder of his wife. The proof shows that defendant and his wife were occupying as a sleeping apartment the upstairs room of a building in Dallas, and that he killed his wife by striking her with an axe or bludgeon. Subsequently he threw her body out of the window, dug a grave or hole, and concealed the body, near the building, where it was subsequently found. The only questions that arise in this case are as to the appellant's defense of insanity. These questions arise upon the charge of the court and the admission of evidence. It is contended that the trial court should not have given the charge as to the burden of proof on the defense of insanity, but that the requested instructions should have been given which specifically charged the jury to find beyond a reasonable doubt that appellant was sane at the time he committed the act, before they would be authorized to return a verdict of guilty. The charge given by the court on this point was as follows: "It is not necessary that the insanity of the defendant, if there is any, should be established beyond a reasonable doubt. It is sufficient if it be established to your satisfaction; that is, such and so much proof as reasonably satisfies you of the existence of insanity at the time the act was committed. To ascertain the condition of defendant's mind at the time of the killing, you should look to its condition before that time, his conduct, acts, and all other surroundings, ascertaining whether his mental condition was such as to enable him to know that he was doing an unlawful or wrongful act, looking at his acts, conduct, and movements before and on the occasion of the crime, his acts, conduct, and movements after the crime, and all other facts in the case, to reach a correct conclusion as to whether defendant was of a sound mind or not." This charge, if anything, is more liberal towards the defendant than the charge which was approved by this court in the case of Webb v. State, 9 Tex.Crim. App., 490, and which has since been followed. The State introduced in rebuttal of the defendant's testimony of insanity a number of witnesses; some of them experts, and some non-experts. The bill of exceptions shows that nine witnesses who were non-experts were introduced by the State, to-wit: D.W. Rottan, R.L. Pool, Mrs. M.T. Myers, W.S. Anderson, John Day, R.P. Saunderson, Ben E. Cabell, Joe Rhodes, and W.R. Moreland. Rottan testified that he had known the defendant only a week before the homicide; that he was a carpenter and had put up a sign at defendant's shop, and fixed a place where persons could leave orders for carpenter work; that he had never seen the defendant sober; that the only business he had ever had at the defendant's shop was to see whether any orders had been left for him; *350 that he had talked with the defendant, and he talked all right to a certain extent; that he had never talked to him when he was duly sober. Pool testified that he was a partner of Rottan, and stated that he had known the defendant three weeks or a month before the death of his wife; that he was at his shop every day; defendant was "full" all the time. Mrs. M.T. Myers testified that she had known the defendant two or three years; that she caned chairs for him; saw him once or twice a week for about a year; saw him sometimes before she began work for him, but not often; was at his house tolerably often after she began work for him; never had anything to say to him, or to do with him, except to work. Anderson testified that he had known defendant a little over three years; lived right across the street from him, and could see him at his work; had a talk with him once in a great while; saw him nearly every day for three years; saw him during the time just preceding the death of his wife; witness was a baker by trade, and defendant dealt with him sometimes; never had an extended conversation with him; would pass only a few words when he came in to buy bread, and he would then go off. R.P. Saunderson stated that he was a deputy constable; had known defendant for about three years; lived about three blocks from him, and saw him nearly every day during that time; had conversations with him, but no business transactions. Ben E. Cabell stated that he had known defendant personally a short time before the killing; had seen him before his arrest, but not very often; had seen him since his arrest, and had a few conversations with him. Joe Rhodes testified that he was the jailer; had known the defendant four or five years; knew him before he was put in jail; was well acquainted with him; but had not seen him very often for quite a while before he was arrested; never had any conversations with him; had seen him often since he had been put in jail. W.R. Moreland testified that he was assistant jailer; did not know defendant before he was put in jail, but had known him since; that he saw him several times a day. After the predicate as aforesaid was laid by each of the witnesses, the State was permitted to ask said witnesses to give their opinion as to the sanity or insanity of the defendant, and each of said witnesses answered that they considered him sane. Appellant objected to each of said witnesses giving his opinion to the jury as to the sanity or insanity of the defendant, on the ground that none of said witnesses were experts; that none of them had shown that they were sufficiently acquainted with appellant to give an opinion as to his mental status, and that none of said witnesses had stated to the jury the facts — that is, the acts, conduct, and conversations of defendant, upon which alone said witnesses would be authorized as non-experts to give an opinion to the jury as to the sanity of the defendant. The court overruled appellant's objections, and permitted each of said witnesses to give his opinion as aforesaid, and appellant now assigns the actions of the court as to each of said witnesses as error. It is the rule in all the American States, so far as we are advised, except Massachusetts, that a non-expert witness is permitted to *351 give his opinion as to the sanity of a person, predicated upon facts involving the acts, conduct, etc., of the person inquired about. In all cases, however, it appears that these facts must be stated by the witness. Mr. Bishop, in his new Criminal Procedure (volume 2), says:
"Sec. 678. A non-expert witness in a criminal case wherein insanity is set up in defense may first state what he personally knows of the party's sayings and doings indicating insanity. Then, yet not before, he may add his opinion of such party's mental condition. And it appears to be no objection that in some degree the opinion is based on facts of such a nature that he could not transmit them to the jury. Yet he can deliver no opinion from facts not within his own observation.
"Sec. 679. But adequate means of observation must have been possessed by the non-expert, to render his opinion admissible. It is not enough that he could testify to some relevant fact. The question of what are such adequate means is not technical; but the witness must have had the opportunity of forming an accurate judgment as to the existence of the insanity, considered with reference to its supposed character or degree.
"Sec. 680. The weight of the evidence with the jury will depend on a variety of circumstances. For example, 'if the reasons are frivolous or inconclusive,' to employ the rather strong language of Williams, Judge, 'the opinions of witnesses are worth nothing.' "
A great number of authorities are cited in support of the text. We quote from Buswell on Insanity as follows:
"Sec. 240. Except in the case of the attesting witnesses to a will, the mere opinions of persons not experts are inadmissible as evidence upon the question of a party's insanity. But it is held generally in the American courts, when a person's mental condition or capacity is in question, that the opinions of non-professional witnesses in regard to such capacity, derived from personal observation of and conversations with such persons, are admissible in evidence when taken in connection with the facts upon which such opinions are founded. The rule admitting this class of testimony constitutes an exception to the general rule of evidence which excludes the opinions of witnesses who have not some peculiar skill or professional knowledge in relation to the matter in issue, although such opinions are derived from the witnesses' personal observation, and are offered to be given in evidence in connection with the facts on which they are based. Proof of expressions of opinion made out of court as to the sanity or insanity of a party are inadmissible upon the issue of the party's mental capacity, being mere hearsay, as well as unsupported by a statement of the facts on which they are founded. So the declaration of a testator, made at the time of the factum, were held inadmissible to prove the insanity of the testator's son, for whose benefit the will created a trust.
"Sec. 241. To lay a foundation for the admission in evidence of such opinions, the specific facts upon which the opinions are based must first be started by the witness, or his testimony must show that such *352 intimate and close relations have existed between the party alleged to be insane and himself as fairly to lead to the conclusion that his opinions will be justified by his opportunities for observing the party. But the mere 'impressions' of one who has had only a passing acquaintance with the party are inadmissible as evidence. The question whether a witness has stated facts and reasons sufficient to render his opinion upon the issue competent evidence is to be determined by the court in all cases. But the question of the cogency of such facts and reasons as affecting the weight to be given to the opinion of the witness is for the jury.
"Sec. 242. In support of the rule as stated it is said that the impression made on the mind of a witness by the conduct, conversation, and business transactions of any person is not mere opinion; it is knowledge, and is to be admitted upon a principle strictly analogous to that under which opinions upon questions of personal identity and handwriting are admitted. It is also said that: 'In the case of insanity a witness may state facts, may give the look of the eye and the action of the man; but unless he is permitted to tell what they indicate, or, in other words, be permitted to express an opinion, he cannot convey to the mind distinctly the condition of the man that such acts and looks portray. As rebutting testimony, it is certainly competent to ask a witness whether, in his opinion, the subject is not of sound mind. The weight and value of an opinion is a very different thing from its admissibility as evidence. Unless the witness gives the facts upon which his opinion is founded, then such an opinion ought not to be admitted.'
"Sec. 243. Thus it seems that opinions, though admissible with the limitations stated, are only to be considered as of weight so far as they illustrate the character and effect upon the mind of the witness of the facts on which they are based. And it is said in a leading English case that 'the court does not depend upon the opinions of witnesses, but upon the facts to which they depose.' So, in cases involving testamentary capacity, it is held that no judicial tribunal would be justified in deciding against the capacity of a testator upon the mere opinions of witnesses, however numerous or respectable, for the opinions of witnesses must be brought to the test of facts, so that the court may judge of the weight to which the opinion is entitled." In Doe v. Reagan, 5) Blackf. 217, 33 Amer. Decs., 466, the rule is thus stated: "Opinions of witnesses may be taken as to the sanity of a grantor, but the facts upon which the opinions are founded must be also stated. Men of medical skill, who have no personal knowledge of the facts, may be asked their opinions whether certain appearances detailed by other witnesses are symptoms of insanity. But the opinion of a person not of the medical profession is not evidence, unless the facts upon which it is based have come under his own observation, and unless also he states those facts to the jury. In the case before us the facts were not stated from which the opinions were formed, and the testimony was consequently inadmissible." From Dove v. State, 3 Heisk., 348, upon this point, we quote *353
as follows: "Physicians may state their opinion of the soundness of a testator's mind, but they must state the circumstances and symptoms from which they draw their conclusions. As to all others, their opinions, construed merely as opinions, are not evidence. But, having stated the appearance, conduct, or conversation of the testator, or other particular fact, from which his state of mind may be inferred, they are at liberty to state their inferences, conclusions, or opinions as the result of those facts." The court adds: "After all, it is the facts which the witness details, the conduct which he describes, which chiefly and principally constitutes the testimony to be relied on." The court cites Gibson v. Gibson, 9 Yerg., 329. To the same effect, see, State v. Bryant, 93 Mo., 273, and Wood v. State,
Reversed and Remanded.