
    DUKE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 7, 1910.
    Rehearing Denied March 1, 1911.)
    1. Ceiminal Law (§ 1166%) — Appeal—Review.
    Challenges for cause to jurors will not be reviewed on appeal where it does not appear that appellant exhausted his peremptory challenges, and thereafter was forced to accept a juror subject to disqualification or challenge for cause.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3117; Dec. Dig. § 1166%.]
    2. Ceiminal Law (§ 452) — Evidence—Opinion Evidence.
    Where a witness testified that on the night prior to the homicide accused was drinking heavily and on the point of having delirium tremens, but on cross-examination admitted that he did not know what delirium tremens was, it was proper to exclude his statement as to the delirium tremens.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 452.]
    3.Criminal Law (§ 448) — Evidence—Opinion Evidence.
    It was proper to permit a witness to testify that at the time defendant was exhibiting to witness certain weapons he seemed to be very quiet, and that he was sober; the testimony not being a conclusion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1044-1046; Dec. Dig. § 448.]
    4.Criminal Law (§ 474) — Evidence—Opinion Evidence.
    On a criminal prosecution, it was proper to sustain an objection to a question to an expert on mental diseases as to whether accused was a fit subject for excessive punishment, as the death penalty, or long continued confinement.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 474.]
    5.Criminal Law (§ 485) — Evidence—Examination op Experts.
    Either side may put a hypothetical question based upon the facts of the case — that is, such facts as are proved and the party putting the question deems proper to collate in the hypothetical question — and, if the opposite side is not satisfied with the question as put, it may amplify the question or put it under the facts deemed proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1073, 1074; Dee. Dig. § 485.]
    6.Criminal Law (§ 485) — Evidence—Examination op Expert.
    Where, on a prosecution for homicide, it was developed before the jury that accused testified on a former trial, and went into the details in regard to the killing and attendant circumstances, it was proper in a hypothetical question to an expert on mental diseases to ask him whether a man who testified to the details several months afterwards could hav.e been so under the influence of liquor as to be temporarily insane and irresponsible.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 485.]
    7. Cbiminal Law (§ 1105) — Appeal and Ee-
    eoe — Record.
    The approval of the trial court of a bill of exceptions does not amount to a certificate that the grounds of objection correctly state the facts.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1105.]
    8. Homicide (§ 294) — Teial—Insteuctions.
    On a prosecution for homicide, there was evidence that on the evening and night prior to the homicide accused was very much intoxicated, and that on the morning of the homicide he had taken one or two drinks.of whisky and a drink of beer, but it did not appear that he was suffering from delirium tremens, and the experts who testified stated that accused had a very low order of mentality, and stated under certain hypothetical questions that he would be insane, but under others that he would be sane. Meld, that it was sufficient to give an instruction on insanity in the usual form to the effect that, if accused was insane, he should be acquitted, and an instruction on the question of delirium tremens as a phase of insanity was not required.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 294.]
    Appeal from District Court, Bexar County ; Edward Dwyer, Judge.
    E.'W. Duke was convicted of murder, and he appeals.
    Affirmed.
    Carlos Bee and C. C. Todd, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of murder in the second degree; his punishment being assessed at Í5 years’ imprisonment in the penitentiary.

This is the second appeal. The first appeal will be found reported in 56 Tex. Cr. R. 502, 120 S. W. 894. In the former appeal the judgment was for life imprisonment. A sufficient statement of the evidence in the case as far as the questions involved in this case are concerned will be found in the former opinion.

1. Several bills of exception were reserved to the action of the court overruling challenges for cause to jurors named in the bills of exception. We deem it unnecessary to discuss the merits of the 'bills, for the reason that it is not shown by the bills that appellant exhausted his peremptory challenges, and thereafter was required or forced to accept a juror who was subject to disqualification or challenge for cause. So far as the bills are concerned, the appellant did not have forced upon him an objectionable juror. It may be stated in this connection that the jurors set out in the bills were challenged peremptorily, and did not sit in the case.

'2!. Miller, a witness for the state, testified that on the'evening prior to the homicide appellant was drinking heavily, and the last time he saw him on the night prior to the homicide the following day he was on the point of having delirium tremens, and, being subsequently examined by the state, witness was not able to define delirium tremens, and the state thereupon asked that the above statement of the witness be stricken out, and it was so ordered by the court. Appellant contended that the condition of delirium tre-mens is one of common knowledge, similar to that as to whether a man is drunk or sick, and expert knowledge is not necessary upon the subject. The court signs the bill with the following qualification: “That the witness on cross-examination by the state admitted that he did not know what delirium tremens was, and that the state moved to exclude his declaration upon cross-examination that the defendant was on the point of delirium tremens, because it was the opinion of the witness not based upon the knowledge of the matter concerning which he was testifying, and the court thereupon struck out the opinion of the witness as to the defendant being upon the point of delirium tremens.” As this matter is explained by the court, we are of opinion there is no error. The statement on the part of the witness as to his ignorance of the matter is we think sufficient to justify the court in the ruling made.

3. Another bill recites that while the same witness was upon redirect examination the following question was asked him: “While Mr. Duke was showing you this pistol and shotgun, tell the jury whether or not he was excited or cool, calm or deliberate.” Appellant objected to this because it called for the conclusion of the witness. This was overruled, and the witness answered: “He seemed to be very quiet. He was sober.” This bill is rather indefinite, in that it does not show at what time appellant was showing his pistol and shotgun to the witness, or what connection it had or may have had with the fact of the killing. As a usual rule, this character of testimony is admissible as a shorthand rendering of the facts. Whether a man is drunk or sober, or quiet or boisterous, or matters of that kind, can be stated not so much as a conclusion but as a fact.

4. Another bill of exceptions recites that Dr. Moody had qualified as an expert on mental diseases; that he had examined appellant, and having had presented to him a hypothetical question based upon the testimony in the case, and having answered that the defendant, though, in his opinion, legally sane, was of a very low order of mentality, was asked by the defendant the following question: -“From your understanding of this man and your study of him and his history as outlined to you, do you consider the defendant a fit subject for excessive punishment, as the death penalty, or long continued confinement?” Objection by the state was sustained by the court. Appellant excepted for the reason that the witness was an expert upon mental diseases, and that while the jury are the exclusive judges of the credibility of the witnesses and the weight to be given to the testimony, and in their deliberation weigh and consider testimony in their own way, the testimony of a doctor who has spent 14 years in the constant study of mental diseases, who is associated with the insane daily, who knows the effect of pain and suffering upon the mind, who knows the capacity of the mind to form the cool, calm, and deliberate design, would be important in assisting the jury in arriving at their determination as to whether they would be justified, under the circumstances and conditions of the defendant, in inflicting upon a person so mentally constituted as was the defendant a long and continued confinement. There are several bills of exception embodying practically the same question from different experts who were placed upon the stand, among whom, in addition to Dr. Moody, were Drs. Berry and Nichols. We are of opinion the court’s action is correct. The conclusion to be reached in matters of this sort is for the jury. It is not the province of an expert to give his opinion as to how a party accused of crime shall be punished in case of a conviction. He may say that the party is sane or insane, but it has not been held, nor do we believe it could be rightfully held, that the expert could express his opinion as to the amount of punishment that the jury should assess in ease they found that the accused was not insane. The jury may take into consideration the low order of intellect of a party they are trying in passing upon the amount of punishment where the punishment is graded from a minimum to a maximum. The question at issue in cases of this character is always the sanity of the party, and does not include the expert opinion of a witness that a low order of intellect should commend itself to the jury in assessing the punishment. This is a matter that the Legislature, if they saw proper to do, may regulate, but it is not within the province of witnesses to do so or even to express their opinion about it. It would not be the subject of expert testimony in any event.

5. Another bill recites that, while Dr. Berry was upon the stand testifying as an expert upon hypothetical questions based upon the facts of the case, he was asked quite a lengthy question stated in the nature of a hypothesis. It is unnecessary to repeat these facts. They are set out, however, in the bill of exceptions. This question was asked by the state. Appellant objected because it did not cover the material facts of the case as adduced by the witnesses, but was only a fragmentary statement, selecting . only that portion of the testimony adverse to the contention of appellant, and was not a question based upon a full and complete review of all the testimony, and was therefore prejudicial to the interests of the defendant. These objections were overruled. The answer is not given', and what the answer was we are not informed. This would dispose of the bill. The testimony, however, may have been favorable to appellant, and it may not have been, but be that as it may, whatever the answer was, if any, the question was a legitimate ope under the ruling of Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330. The rule was there laid down after a very careful review of this character of question, and, after an able, oral argument and brief, that either side can put a hypothetical question based upon the facts in the case; that is, such facts as are proved and the party putting the question deemed proper to collate in the hypothetical question. If the opposite side is not satisfied with the question as put that side can amplify the question or put the hypothetical question under the facts as he sees proper. We do not believe that it would be of any service to review this question further than was done in the Burt Case, supra. For a discussion of the matter here involved, see the opinions in that ease both on original hearing and on motion for rehearing.

6. There is another bill which recites that Dr. Nichols, superintendent of the Southwestern Insane Asylum of San Antonio, testified as a witness for the defendant, and qualified as an expert upon mental diseases. Among other things, he was asked by appellant the following question: “From your experience and treatment of these different disorders, is it possible for a man to become so drunk as to be under the statement I made to you, and as you said awhile ago, irresponsible, and remember nothing of the act committed, and yet in that interval preceding be able to transact little matters of business, such as making change and things of that kind?” and in reply gave the following answer: “I will state to the jury we very frequently have conditions of that kind where people appear to be normal and all right and transact business or do things, and not have any remembrance of it afterwards.” Thereupon the state asked this question: “Where a party remembers enough about the transaction to testify all about it months after the killing,” and thereupon the following colloquy occurred between the court, counsel for the state, and counsel for the defendant:

“Mr. Bee: I except to the question because it has reference to the failure of the defendant to testify, and refers to another matter. I make further objection that it is not predicated upon testimony before the court at this time and upon the record at this time.

“Mr. Davies: I am asking a hypothetical question now, based upon the' proposition. I believe he has asked the question. Now this question is pertinent to the very inquiry he has made, if he can do these little formal acts and forget all about what he did at the time of the transaction. I am cross-examining the witness, and I asked the further question, which your honor heard, whether or not if he did such things and was able to remember, whether or not then, under those circumstances, he would be temporarily insane.

“Mr. Bee: I further except to it because there is no evidence before the court. The hypothetical question is based upon a false premise in this case, because there is no testimony before this court that the defendant in this case remembered any of the acts committed.

“The Court: Answer the question.

“Mr. Bee: I further object because the question previously propounded by counsel is prejudicial to the rights of this defandant as will be fully set out in the bill of exceptions.

“Q. Now I will ask you this question: Whether or not a party who has passed through what I have related to you before in my hypothetical question, in addition thereto, several months afterwards was able to go upon the witness stand and detail what occurred at the time of the homicide from his standpoint, whether or not a man of that kind could be under the influence of liquor to such an extent as to be temporarily insane and irresponsible at the time of the commission of the offense?

“Mr. Bee: I desire to urge two objections: First. X desire to object to the question because it has reference to a matter that is not before this court. There is no evidence before this court on that subject. Second. Because it refers to a matter that is prejudicial to the rights of this defendant in this case, as outlined.”

These objections were all overruled. The question was asked, and the witness answered that under the statement made by counsel for the state he would say that the memory of the defendant was all right. Appellant objected because the questions were improper, in that they referred to the testimony of the defendant on a previous trial, and are not predicated upon any testimony before the-court at the time, or upon the record in the case at the time, and because the hypothetical question propounded was based upon a false premise so far as this case was concerned, because there was no testimony before the court in this case that the defendant remembered any of the acts committed, and, further, because it refers to the failure of the defendant to testify, and was a reference to matters prejudicial to the rights of the defendant in the case on another trial. As the bill presents these matters, we are of opinion that the ruling of the court was not erroneous. If appellant testified on the former trial, and that fact was developed -before the jury, and it was shown that he went into details in regard to the killing and attendant circumstances, 1 these matters could be embraced in the hypothetical question; that is, if he testified to all the facts and circumstances occurring at the homicide on the former trial, such facts could be included in the question. It was not erroneous to embrace these matters in a hypothetical question in the manner presented by this bill of exceptions. This is based upon the view that the bill fails to show the evidence of appellant on former trial had not been introduced at the time the hypothetical question was put to the doctor. The statement in the bill of exceptions as a ground of objection that he had not so testified is not the statement of the fact that the ground of objection is true. The court approving a bill of this character does not certify to the correctness of the ground of objection. 1-Iis certificate to the bill is to the effect that the matters occurred therein as stated, and that the grounds of objection were those urged by the party taking the exception. 1-Ie does not certify that the grounds of objection correctly state the facts. If as a matter of fact appellant’s evidence on a former trial was not -before the jury so as to form part of the hypothetical question, this matter should have been stated as a matter of fact in the bill, and not as a ground of objection.

7. Without setting out the nature of the requested instructions which were refused, it was suggested in those instructions that the court should have charged the jury with reference to the question of delirium tremens as a phase of insanity. We are of opinion the record does not show such evidence as required the court to give this charge. During the trial it was sought to prove that appellant’s mind was affected by the use of intoxicants, and it is shown that on the evening and night prior to the homicide the following day that appellant was very much intoxicated, but on the morning of the homicide, while he had taken one or two drinks of whisky and a drink of beer, yet the evidence does not show that he was suffering from delirium tremens. It is fully doubtful if he was drunk. The court submitted the theory of voluntary drunkenness, but did not submit the theory of settled insanity from the long and continued use of intoxicants. The law draws a distinction which the decisions have clearly recognized between temporary insanity from the recent voluntary use of intoxicants, drunkenness produced from that source, and the settled insanity which is. the result of long continued use of such intoxicants. The facts in this case do not show a fixed or settled insanity from long continued use of intoxicants. Had that been an issue in the ease, the court should have submitted it. However, the court does give a charge on insanity in the usual form, and not criticised, which instructs the jury that, if appellant was insane at the time of the homicide, they should acquit him on that ground of any unlawful killing. The distinction between temporary insanity produced by recent voluntary use of intoxicants and that which follows long continued use of such whisky to the extent of unbalancing the mind is discussed in Evers v. State, 31 Tex. Cr. R. 318, 20 S. W. 744, 18 L. R. A. 421, 37 Am. St. Rep. 811. Judge Simkins, delivering the opinion of the court in that case, uses this language: “There are two kinds of insanity produced by alcoholism: First. Delirium tremens, caused by the breaking down of the person’s system by long continued or habitual drunkenness, and brought on by abstinence from drink. This is what is called ‘settled insanity,’ to distinguish it from ‘temporary insanity’ or drunkenness, directly resulting from drink. ‘Settled insanity,’ from the earliest times, has been held to be a complete defense to crime. Lord Hale says: ‘If by means of drunkenness an habitual or fixed madness be caused, though contracted by the will of the party, it will excuse crime.’ P. C. pt. 1, c. 4. In United States v. Drew, 5 Mason, 28 [Fed. Cas. No. 14,993], decided in 1828, Story, Judge, says: ‘Insanity, whose remote cause is habitual drunkenness, is an excuse for crime committed by the party while so insane, but not intoxicated, or under the influence of whisky. Such insanity has always been deemed a sufficient excuse for any crime done under its influence.’ United States v. McGlue, 1 Curt. 1 [Fed. Cas. No. 15,679]; Maconnehey v. State, 5 Ohio St. 77; Carter v. State, 12 Tex. 500 [62 Am. Dec. 539]; Erwin’s Case, 10 Tex. App. 702. Second. The other kind of insanity is that condition of the mind directly produced by the use of ardent spirits; and where a fit of intoxication is carried to such a degree that the person becomes incapable of knowing the act he is doing is wrong and criminal, as above stated, he is in that condition referred to by the statute as being ‘temporarily insane,’ as stated by this court in the Kelley Case [31 Tex. Cr. R.] ante, p. 216 [20 S. W. 357]. There is no difference between the two kinds of insanity so far as the mental status is concerned, but they differ widely in their causes and results. The first is from drinking as a remote result; the second from drinking as a direct result. The first.is an involuntary result, from which all shrink alike; the second is voluntarily sought after. In the first, there is no criminal responsibility ; but in the second, responsibility never ceases. There is evidence only of temporary insanity in the record, and the court erred in not explaining temporary insanity to the jury, and also instructing them that if they believed that defendant was temporarily insane at the time he formed the intent to kill deceased, and the same was carried into execution while defendant was so insane, they should take such insanity into consideration, both in determining the degree and in reducing the penalty.”

As before stated, we fail to find evidence .that authorized the court to charge the issue of settled insanity arising from excessive alcoholism and abstinence from such drink, but, ¿whether or not delirium tremens would or not be produced by reason of abstinence from long continued drinking, we are of opinion that the evidence here does not suggest delirium tremens or settled insanity. The experts describe the case more accurately in accordance with the facts as we understand it in their statements to the effect that appellant had a very low order of mentality. They had stated under certain hypothetical questions that he would be insane, but under others that he would be sane. The court, we think, sufficiently gave the law in charging the general issue of insanity, and the law applicable thereto. The fact that appellant was very much intoxicated on the night before the homicide and drinking some on the morning of the homicide does not show delirium tremens or settled insanity. In fact, some of the witnesses who testified about the matter rather exclude the idea of his being drunk. It is unnecessary to go into a detailed statement of their testimony in this respect.

Finding no reversible error in the record, the judgment is affirmed.  