
    HAZELWOOD v. STATE.
    (No. 4060.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.)
    1. Criminal Law <&wkey;48 — Insanity—Use of Drugs.
    Insanity caused by continued use of narcotics and drugs, such as morphine and cocaine, does not come within the statute with reference to temporary insanity produced by the recent use of intoxicating liquors.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 53-58; Dec. Dig. <§=^>48.]
    2. Criminal Law <&wkey;48 — Insanity as a Defense.
    A person, tried for insanity and found insane by the county court and who while out of jail under bond commits an assault and is arrested and placed in an insane asylum, cannot be indicted and tried for the assault, under Pen. Code 1911, art. 39, providing that no act done in a state of insanity can be punished as an offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 53-58; Dec. Dig. <&wkey;48.]
    3. Criminal Law <&wkey;465 — Opinion Evidence —Nonexperts.
    Testimony of nonexperts may be received' only where they state sufficient facts on which, to base their conclusions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1057; Dec. Dig. &wkey;465.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Donley County; Hugh L. I-Iumphres, Judge.
    Robert Hazelwood was convicted of aggravated assault, and appeals. Reversed.
    J. W. Crudgington, of Amarillo, E. A.. Simpson, of Clarendon, and A. M. Mood, and Veale & Lumpkin, all of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for. the State.
   DAVIDSON, J.

Appellant was convicted of aggravated assault and given 22 months in the county jail.

[1,2] Long prior to the alleged assault appellant had been tried for insanity andfound insane in the county court of Potter county, where this case arose. He was seat to the lunatic asylum in San Antonio, where he remained for some months, until the superintendent discharged him. This judgment was never set aside by any legal authority. Dr. White, superintendent of the insane asylum of San Antonio, testified that he believed at the time of'the discharge of appellant that, if certain circumstances arose, appellant would be insane, and in fact was not, perhaps, sane within the comtem-plation of the -law at the time of his discharge. The evidence shows that appellant was addicted, not only to drinking intoxicants heavily, but used morphine, cocaine, and “dope” of such character, and when under tlie influence of it was not responsible, and. this had continued so long that his mind was deranged from the use of these narcotics and drugs. Insanity for these causes does not come within the statute with reference to temporary insanity produced by the recent use of intoxicating liquors. This has been the subject of a number of decisions. After returning from the San Antonio asylum to his home in Amarillo, he was again tried for insanity, and again found insane. There seems to have been no room for him in the asylum at the time of the second judgment, and he was taken out for a while under bond, as authorized by the statute, and was placed in charge of his bondsmen. Later, however, he was surrendered by his bondsmen and placed in jail. A few days before the alleged assault he was taken out of jail again .under bond, and while out he was charged with having committed the assault He was then arrested, and conveyed to the insane asylum at Austin. After being so placed in the asylum, the grand jury of Potter county returned this bill of indictment, charging him with assault with intent to murder. This action of the grand jury occurred while he was in the insane asylum in Austin. The trial judge, at the instance of the prosecution, issued a bench warrant, authorizing the bringing of appellant from the lunatic asylum to be tried under the indictment. This was executed, and appellant carried to Amarillo. Change of venue then occurred to Donley county, where the trial subsequently occurred under the indictment. These matters all appear of record, and are clearly manifest and undisputed. Under our statute insane people cannot be tried while in a state of insanity. Branch’s late Annotated Penal Code, art. 89, provides:

“No act done in a state of insanity can be punished as an offense. No person who becomes insane after he committed an offense shall be tried for the same while in such condition. No person who becomes insane after he is found guilty shall be punished for the offense while in such condition.”

The facts as stated are uncontroverted. It is undisputed further that he was in the asylum while this judgment finding him insane was in existence, and it is still in existence. No attempt was made to set aside the conviction for insanity. If the testimony even on the trial of this case is to be credited, defendant was insane, but whether that be the correct position or not, aside from the county court judgment, yet that judgment remained intact, was in full force and effect, and appellant confined in the insane asylum under and by virtue of it. In the face of all this, this defendant was brought out of the asylum and tried for a criminal offense. No man in Texas can be tried while he is insane. Tl^is precluded the trial of appellant under the circumstances of this record. For this reason this judgment must be reversed.

There are some bills of exception reserved to the testimony of nonexpert witnesses, which we think well taken. These witnesses do not state sufficient facts on which to base their conclusion. That testimony of nonexperts may be given where a proper predicate has been laid has been announced as the correct rule, but sufficient facts and circumstances must be drawn from the witness as a basis for his opinion. Even the experts must know the facts in order to base an expert opinion, either by his observation or .under the rule of hypothetical questions and statements. If the testimony on another trial of nonexperts is sought, a proper predicate should be laid as a prerequisite for their opinion.

The judgment is1 reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting). The well-considered case of Chase v. State, 41 Tex. Cr. R. 560, 55 S. W. 833, written by Judge Henderson, holds the reverse of the decision in this case, and is exactly in point. Judge Davidson, in Wilson v. State, 58 Tex. Cr. R. 596, 127 S. W. 548, expressly approved the Chase Case. Mr. Branch cites other cases1 to the same effect in section 27, p. 15, of his new Annotated Penal Code. I believe these decisions correctly decide the law of this case.

The testimony of the nonexpert witnesses comes within the law as laid down in Jordan v. State, 64 Tex. Cr. R. 187, 141 S. W. 786, Key v. State, 72 Tex. Cr. R. 129, 161 S. W. 130, Rogers v. State, 71 Tex. Cr. R. 149, 159 S. W. 40, and other cases, and was admissible.

This case should be affirmed, not reversed. 
      
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