
    GARDENER v. STATE.
    (No. 6453.)
    (Court of Criminal Appeals of Texas.
    Nov. 30, 1921.)
    1. Criminal law <&wkey;465 — Opinion of nonexpert witness as to defendant’s sanity held inadmissible for want of proper predicate.
    In a prosecution for forgery, where the defense of insanity was interposed, it was error to receive the opinion of a nonexpert witness on the issue of insanity, in the absence of a relation by the witness of some fact on which the opinion was predicated; a mere acquaintance with the subject of inquiry not being sufficient.
    2. Criminal law &wkey;>53l (2)T-Evidence as to whether defendant regarded himself under arrest when making an unwarned confession held admissible.
    In a prosecution for forgery, where defendant had made a confession to the sheriff before he was notified that he was under arrest, the state of defendant’s mind as to his knowledge of the sheriff’s intention to arrest him, or as to whether he regarded himself as in custody, was important in determining the admissibility of his unwarned confession, and evidence in that respect was admissible.
    3. Criminal law &wkey;>829(l2) — Correct charge properly refused, where covered by charge given.
    It was not error to refuse a correct charge that defendant did not have the burden of establishing insanity beyond a reasonable doubt, but was only required to prove it by a preponderance of the evidence, where defendant’s rights were fully guarded by the main charge.
    Appeal from District Court, Hamilton County; J. R. McClellan, Judge.
    Walter Gardener was convicted of forgery, and he appeals.
    Reversed and remanded.
    A. R. Eidson, of Hamilton, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for the offense of forgery; punishment fixed at confinement in the penitentiary for a period of two years.

The defense of insanity was interposed, upon the evidence of both expert and non-expert witnesses. The state relied upon the testimony of the nonexpert witnesses, and the sufficiency of the predicate given by them for the affirmative opinion that the appellant was sane jls challenged.

One of these witnesses testified that he had known appellant for eight or ten years; that they had formerly been chums and closely associated together; that his recent association had not been intimate, but that he seen the appellant, talked to him, and observed him on various occasions within the 12 months past, had seen the appellant conversing with others in a crowd, and had also seen him on a rabbit hunt, but thereon had no conversation with him. Other witnesses upon the subject were more meager, but not more explicit.

The rules governing the predicate for such an opinion are stated in Williams v. State, 37 Tex. Cr. R. 348, 39 S. W. 687. The reasons upon which they are based are there stated, and both rules and reasons have re? ceived the sanction of this court on various subsequent occasions. Henderson v. State, 49 Tex. Cr. R. 512, 93 S. W. 550; Hurst v. State, 40 S. W. 264; Burton v. State, 51 Tex. Cr. R. 200, 101 S. W. 226; Wells v. State, 50 Tex. Cr. R. 501, 98 S. W. 851; Sims v. State, 50 Tex. Cr. R. 565, 99 S. W. 555; Betts v. State, 48 Tex. Cr. R. 525, 89 S. W. 413; Lee v. State, 43 Tex. Cr. R. 287, 64 S. W. 1047; Plummer v. State, 86 Tex. Cr. R. 487, 218 S. W. 499; Hazelwood v. State, 79 Tex. Cr. R. 483, 186 S. W. 201; Barton v. State, 230 S. W. 989; Taylor v. State, 227 S. W. 684; Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052.

As applied to the matter in hand, the rules mentioned preclude the receipt of the opinion of a nonexpert witness upon the issue of sanity, in the absence of a relation by the witness of some fact upon which the opinion is predicated, and a mere acquaintance with the subject of inquiry is not sufficient predicate to authorize the receipt of the opinion. In the instant case, it was manifestly practicable to have elicited from the witnesses some act or word or appearance or conduct of the appellant forming the basis of the opinion expressed, to the end that the jury might test the value of the opinion by the predicate. If the nonexpert witness can detail no fact or circumstance as a predicate, but is able to relate his acquaintance with the subject of inquiry, his opinion of sanity cannot be received. Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052; Burton v. State, 51 Tex. Cr. R. 200, 101 S. W. 226; Betts v. State, 48 Tex. Cr. R. 525, 89 S. W. 413; Barton v. State, 230 S. W. 989; Taylor v. State, 227 S. W. 684. In our opinion, in receiving the testimony mentioned, the trial court fell into error prejudicial to the appellant.

The forged instrument, a check, was used in procuring a shipment of merchandise from Dallas to Hamilton, addressed to Hugh Watson. Appellant called for the goods, and the express agent called the sheriff. The sheriff went to the express office for the purpose of arresting the person who called for the goods, and, soon after his arrival, took appellant in custody. Before notifying the appellant that he was under arrest, the sheriff obtained from him the admission that he had forged the check. Whether appellant, at the time he made the admission, was aware of the intention of the sheriff to arrest him, or regarded himself as in custody or under restraint, is not disclosed by direct testimony.

The state of his mind upon that subject was of importance in determining the admissibility of his unwarned confession. Clark v. State, 84 Tex. Cr. R. 390, 207 S. W. 98. The circumstances were such as might have warranted the jury in concluding that he was conscious of the fact that he was in custody, but we think not conclusively so as to require the exclusion of the testimony. Upon request, his attitude upon the subject might have been submitted to the jury and the use of the testimony against him made to depend upon their finding. Without reciting the facts, we are of the opinion that the evidence was such as justified the trial court in refusing to instruct the jury affirmatively to acquit unless the venue was proved. In its main charge, as a predicate for conviction, the jury was required to determine that the offense was committed in Hamilton county.

To our mind, the record reveals the fact that the case was tried upon the theory that the appellant was a resident citizen of Hamilton county. The date marks on the check and the order, the shipping directions, the locality of the appellant at the time that he called for the property, and the other facts adverted to, negative the idea that there was any contention upon the trial court that, at the time of the forgery, appellant was elsewhere than in Hamilton county. It is true that the burden was not upon the appellant to show where the forgery took place; but the affirmative evidence introduced by the state, showing that the transaction was in Hamilton countj7, in the absence of any controverting testimony adduced upon that subject, was sufficient to show that the matter of venue in Hamilton county was not controverted.

Complaint is made of the refusal of the trial court to give a special charge instructing the jury that the burden was not upon the appellant to establish his insanity, beyond a reasonable doubt, but that it was required only that it be proved by the preponderance of the evidence. The charge contains a correct statement of the law, but, .as- we understand the precedents upon the subject, appellant’s rights were fully guarded by the main charge, which rendered the special charge unnecessary. The court instructed in the language of Willson’s criminal form 929, which charge has been approved as a sufficient statement of the law on numerous occasions. See Clark v. State, 8 Tex. App. 350, and other cases listed in Vernon’s Texas Crim. Statutes, vol. 1, p. 19, note 10. There are some instances in which the court has deviated from the charge mentioned, and in doing so has increased the burden upon the accused. Under such circumstances, the special charge requested by appellant has been held suitable to correct the error. Hurst v. State, 40 Tex. Cr. R. 378, 46 S. W. 635, 50 S. W. 719. In the instant case, there was no error in refusing it.

Because of the error pointed out, the judgment is reversed, and the cause remanded. 
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