
    TOLSTON v. STATE.
    (No. 6962.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1922.
    Rehearing Denied Feb. 21, 1923.)
    Criminal law <§=>476 — Exclusion of physician’s testimony as to whether wound could have been made by bottle thrown certain distance held reversible error.
    In a prosecution for murder, exclusion of a physician’s testimony as to whether a wound, which he had described, on deceased’s head could have been made by an empty quart whis-ky bottle thrown a distance of 10 steps or SO feet held reversible error.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    Levi Tolston was convicted of murder, and he appeals.
    Reversed.
    Stanley Thompson,' of Houston, and Cade Bethea, of Livingston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for murder; punishment fixed at confinement in the penitentiary for a period of 40 years. The facts are not materially variant from those stated in the opinion of this court on the former appeal. See 88 Tex. Cr. R. 269, 225 S. W. 1098.

Dr. Pullen, a physician and surgeon of 20 years’ practice, a graduate and postgraduate of two reputable medical institutions, testified that he visited the deceased soon after he received the blow which afterwards proved fatal; that he shaved his head, cut a piece out of his scalp like a horseshoe, laid it back, and then tried, without success, to raise the skull. There was a depression in the skull from a fracture on the top of the head and about the center. The skull was crushed in. It seems that there were two fractures. He said:

“I took the scalp off on both sides, and then it was kind of broken around — just busted; the skull was busted. * * * His head was skinned up. * * * He had tolerably thick head of hair. He had coarse hair, and it was rather long.”

He also stated that he was acquainted with the nature of an ordinary quart whisky bottle. He was asked whether or not, in his opinion, the wound which he found upon the Indian’s head, and which he had described, could have been made by an empty quart whisky bottle being thrown a distance of 10 steps or 30 feet. It was the theory of the state that the wound was inflicted by the use of such, a bottle as that described in question. Appellant expected to prove by the same witness that the wound which the witness saw upon the head of the deceased, and which he described in his testimony, could not have .been made by the use of the weapon in the manner stated. This testimony was excluded upon the objection of the state’s counsel upon the ground that it called for an opinion which was not within the scope of expert testimony. We regard the ruling as erroneous.

On the former appeal this court, in holding that the expert evidence received on behalf of the state was not admissible, used the following language:

, “We1 think this error, and that the question was one which a physician could not answer as an expert. Whether an empty quart bottle thrown thirty feet and striking a man square on top of the head would likely produce death, seems to us a matter of pure conjecture and not an opinion founded on fact or knowledge acquired by reason of the profession of the witness. The character of the wound inflicted was not included in the hypothetical question asked. We have held that a physician may state as to the probable cause, nature and effect of wounds, and the consequences thereof. Branch’s Ann. P. O. § 1853. But in a matter which the jury are as competent to judge as the witness, we have held it error to permit the witness to give his opinion. Branch’s Ann. P. 0. § 131.”

. Mr. Wharton, in his work on Criminal Evidence, vol. 1, p. 839, says: •

“And a surgeon is admissible to prove the nature of a wound and its probable cause and effects.”

In the case of Waite v. State, 13 Tex. App. 180, it was the theory of the state that the injury upon the deceased was inflicted by a certain piece of iron piping, which was described in the testimony. The state’s counsel propounded to the medical man this question:

“Would such an instrument in the hands of a man of ordinary strength, used as a bludgeon, produce the wounds you have described and be likely to cause death?”

Objection was urged by the defendant upon the ground that the point was one upon which the opinion of an expert was not competent. The evidence is held admissible. The action of the trial court in overruling this objection whs sustained on appeal in the case in which the death penalty was assessed and affirmed under the authorities cited. See State v. Morphy, 33 Iowa, 270, 11 Am. Rep. 122; State v. Porter, 34 Iowa, 131; Page v. State, 61 Ala. 16; Rash v. State, 61 Ala. 90; Ebos v. State, 34 Ark. 520; Shelton v. State, 34 Tex. 662. A like ruling was made in Banks v. State, 13 Tex. App. 182; Powell v. State, 13 Tex. App. 244; Lovelady v. State, 14 Tex. App. 560; Kirk v. State (Tex. Cr. App.) 37 S. W. 440; Hardin v. State, 51 Tex. Cr. R. 562, 103 S. W. 401; Betts v. State, 60 Tex. Cr. R. 634, 133 S. W. 251; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Spates v. State, 62 Tex. Cr. R. 532, 138 S. W. 393; and other cases listed by Mr. Branch in his Tex. Ann. Penal Code, § 1853.

The admissibility of the testimony proffered in thei instant case, we think, is also sustained by the opinion of this court on the former appeal. The distinguishing factor is that on this appeal the nature of the wound is embraced in the inquiry, while in the former appeal it is omitted.

Appellant insists that, considering the character of the weapon, the absence of proof of motive, and the questionable character of the evidence to the effect that the injury was inflicted by appellant, the verdict of murder should not be allowed to stand. Without giving sanction to this view, this court is of the opinion that, considering the entire record, the error in excluding the testimony mentioned was one that requires a reversal of the judgment. Jt is so ordered.

On Motion for Rehearing.

HAWKINS, J.

The state files a motion for rehearing, citing as the only authority our opinion in this ease on a former appeal which is reported in 88 Tex. Cr. R. 269, 225 S. W. 1098. In the present opinion we undertook to point out the distinction between the question propounded upon the instant trial and in the former.

The motion is overruled. 
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