
    COPELAND v. STATE.
    (No. 7317.)
    (Court of Criminal Appeals of Texas.
    April 4, 1923.)
    1. Criminal law <&wkey;598(8) — That no attachment was issued for witness whose attendance was physically impossible not ground for refusing continuance.
    That no attachment was issued for a witness, whose attendance was physically impossible, does not justify refusal of a continuance because of her absence, as the law does not require the doing of a useless thing in order to show diligence.
    2. Criminal law <&wkey;596(l) — Rule as to cumula-, tive testimony not strictly applied on motion for continuance for absence of witness as to accused’s insanity.
    The rule as to cumulative testimony in passing on a motion for a continuance because of a witness’ absence is not strictly applied where the witness will testify as to accused’s insanity.
    3. Criminal law <®=5>364(4)— Defendant’s declaration that still found on his premises was his held admissible as res gestee.
    In a prosecution for unlawfully manufacturing intoxicating liquor, defendant’s declaration, while under arrest, that a still found on his premises belonged to him, held admissible as res gestm.
    4. Criminal law <&wkey;474, 494 — Physician’s testimony that defendant was incapable of exercising discretion in ordinary affairs admissible, but not conclusive, on issue as to his ability to know wrong of act charged.
    , A physician’s testimony that accused’s mind was diseased and unbalanced, and that he was not capable of understanding and acting with discretion in the ordinary affairs of his life, held admissible, though not conclusive, on the issue whether his mind was such as to enable him to know the right and wrong of the act charged.
    Appeal from District Court, Denton County; C. R. Pearman, Judge.
    A. L. Copeland was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    Owsley & Owsley, of Denton, and Mays & Mays and P. M. Chaney, all of Port Worth, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

A still and intoxicating liquors were found upon the premises of the appellant. His defense was insanity, and a number of witnesses testified pro and con upon this issue.

Preliminary to the announcement of ready for trial, appellant made his application for a eonünuanee on account of the absence of Mrs. Mattie Copeland, the wife of appellant’s brother. She lived in the county, had been served with process, but was about to become a mother at the time of the trial. The state’s counsel justifies the ruling upon the proposition that no attachment was issued. It is made to appear that this would have been fruitless as her attendance was impossible. To show diligence, the law does not require the doing of a useless thing. See Stegar v. State (Tex. Cr. App.) 105 S. W. 789.

All the facts in evidence revealed the opportunity of the absent witness for acquaintance with the appellant and for knowledge of the condition of his mind. Her affidavit attached to the motion for new trial states many facts upon which she based her opinion that he was insane. A number of witnesses expressed the same opinion. The nature of the defense of insanity is such as precludes a strict application of the rule pertaining to cumulative testimony in passing upon a motion for a continuance. Webb v. State, 5 Tex. App. 596; Roberts v. State, 67 Tex. Cr. R. 580, 150 S. W. 627. Judge White, in Webb’s Case supra, said:

“Nor is the investigation one in which the judge could well say that additional evidence would be but cumulative of like testimony already adduced; for, the greater the number of witnesses who would depose to the opinion that a party was insane, the more likely would the jury, we apprehend, be inclined so to believe and become satisfied of the fact.”

In refusing to grant the continuance and in failing to accord a new trial based thereon, the leárned trial judge, in our opinion, fell into error.

Complaint is made of the receipt in evidence of the declarations of the appellant while under arrest to the effect - that the still belonged to him. They were admissible under the res gestse rule. The facts are not dissimilar to those in the case of Broz v. State (Tex. Cr. App.) 245 S. W. 707.

Dr. Amos, a medical expert who was well acquainted with the appellant and had practiced in his family for a number of years, would have testified that appellant’s mind was not normal, but was diseased and unbalanced, and- that he was not capable of understanding and acting with discretion in the ordinary affairs of his life. An objection was made to this testimony embracing the idea that the true issue was whether the appellant’s mind was such as to enable him to know.the right and wrong of the particular act in question. We believe the testimony was admissible upon this issue. To render it relevant, it was not necessary that the testimony be conclusive on the point to be decided by the jury. It was enough that it might have aided the jury to solve the true issue. See Plummer v. State, 86 Tex. Cr. R. 496, 218 S. W. 499.

The judgment is reversed, and the cause remanded. 
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