
    PLUMMER v. STATE.
    (No. 5591.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1920.
    On Motion for Rehearing, Feb. 18, 1920.)
    ■ On Motion for Rehearing.
    1. Criminal law <§=1091(2,15) — Bills or EXCEPTIONS SHOULD DISCLOSE ERROR WITHOUT AID OF STATEMENT OF FACTS, BUT SHOULD NOT BE SO CONSTRUED AS TO DEFEAT PURPOSE OF STATUTE.
    Bills of exceptions should be sufficient to disclose the error complained of without the aid of the statement of facts, but, whore the record contains a statement of facts, the bill should not be construed so strictly as to defeat the purpose of the law requiring bills of exceptions, in view of Rev. St. 1911, art. 2059, providing that no form shall be required, and article 2060, authorizing a reference to the statement of facts.
    2. Criminal law <§=452(1,2) — Witness acquainted WITH DEFENDANT COULD TESTIFY CONCERNING HIS APPEARANCE AND EXPRESS OPINION AS TO SOUNDNESS OF MIND.
    A witness, who had known defendant since his youth and visited him in jail the morning after the shooting with which he was charged, and observed his physical condition and demeanor, should have been permitted to testify that, his eyes were vacant and glaring and almost expressionless; that he did not appear conscious or interested in what was going on, or solicitous for assistance; that he was much reduced in flesh and collapsed physically, nervous, pale, and not able to talk consecutively; and to express an opinion as to his soundness of mind.
    3. Criminal law <§=3452(1, 2) — Testimony of WITNESS AS TO APPEARANCE OF DEFENDANT AND OPINION AS TO SOUNDNESS OF MIND ADMISSIBLE.
    A witness, who visited defendant in jail the morning after the shooting charged, was present when lie was released on bond, and took ¡him home with him for several days, should have been permitted to testify that he appeared physically collapsed, nervous, weak, and pale, and to give Ms opinion that his mind was unsound, especially where the state’s witnesses wore permitted to express opinions on no stronger predicate.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    George G. Plummer was convicted of assault to murder, and appeals.
    Reversed and remanded.
    Baskin, Dodge, Eastus & Ammerman, of Ft. Worth, for appellant.
    Jesse M. Brown, Crim. Dist. Atty., of Ft Worth, and W. E. Myres, Asst. Crim. Dist. Atty., of Cleburne, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of the offense of assault to murder, and his punishment fixed at 7 years in the penitentiary. The facts are rather lengthy; and, inasmuch as a statement of them is not necessary to dispose of the case, we will not discuss them further than to say that the evidence shows almost without contradiction, that appellant shot- his wife, and inflicted serious injury upon her at the time charged in the indictment.

Appellant’s principal defense was insanity. He placed on the stand a number of witnesses on this proposition, among them, one John Estes, who testified that he had known the appellant for 24 years intimately, that appellant had gone to school to him when a boy, and that he had known him well ever since. Mr. Estes testified that on the occasion of the trouble, which was the basis of this prosecution, at the solicitation of appellant’s brother, he went to the county jail, where appellant was ■ confined, and there saw and attempted to talk with him. This witness was asked by appellant’s counsel to state appellant’s physical condition, but upon the state’s objection, he was not allowed to narrate the same. In stating his purpose for asking for such evidence, appellant sets forth that he proposed to follow up same by asking this same witness his opinion as to appellant’s mental condition at said time, and sets forth what the witness would have testified, both as to his physical condition and being then of unsound mind. The court refused to allow said question, either as to his physical condition, or to permit said witness, after detailing the manner and appearance of appellant at said time to say that in his opinion he was then of unsound mind. Such refusal of the trial court is here presented by two bills of exception. The court’s action was erroneous in each instance. The exact inquiry in such case as to the mental soundness vel non must apply to the particular act charged, but it is always permissible to ask the witness the general question as to the mental soundness or unsoundness of an accused, and to prove the same by unexpert witnesses, whose evidence has disclosed facts and opportunities for observation, upon which such testimony may be predicated. As insanity is a disease of the brain, caused by some physical or mental disorder, it is always permissible to show the physical condition of the patient, as a part of the inquiry.

What we have just said is true as to the evidence of the witness Finney, as appears in appellant’s bill of exceptions No. 8. This witness, after stating that he had known appellant all his life, that he made his bond, and kept him in his home for several days thereafter, was asked to describe appellant’s physical and mental condition while in his said home, to which objection was made by the state and sustained by the court. Appellant states in his bill, which was duly ap-. proved, that if allowed to answer said witness would have stated such physical conditions as described in said bill, and would have further stated that, in his opinion, appellant was of unsound mind during said. time. This was clearly admissible.

It is difficult to comprehend the view of the trial court. State’s witnesses Wilburn, Mrs. Rosenback, and County Attorney Brown, each of whom appears to have seen appellant but once, were permitted, over objection, to state that they saw nothing in appellant’s acts or conversation on said occasion to indicate that his mind was other than normal. Appellant’s objection to this evidence was that said witnesses had not been shown to have had sufficient opportunities for observation, and that their answers were but opinions. Most testimony of a nonexpert witness resolves itself into an opinion when the direct question is put, but just why the evidence of Estes and Finney, who had known appellant all his life, and offered to> give their opinions as to his mental soundness, was rejected, and the opinions of said state witnesses, who only saw him the one time, were admitted, is not quite clear.

Nor are we quite in agreement with the' form of questions propounded to these state witnesses. We do not think the same presents a proper point of interrogation. Substantially, these witnesses were asked if on the occasion testified about they saw or heard appellant do or say anything which indicated that his mind was other than normal, and there the inquiry practically began and ended. The real question is whether or not the mind of the accused, at the moment of the commission of the offense, is sound or otherwise, as to the act charged; and that is the usual, customary, and settled point of inquiry. Normality of mind is not the test of legal responsibility, either under our statutes or decisions. If it be desired by either side to put in evidence the opinions of nonexperts that on a given occasion an accused talked and acted as lie usually did, and that there ivas nothing in his acts or conversation different from his customary conduct, it must be shown as a predicate that the witness had at least a reasonable acquaintance with the accused, and had some opportunity to observe how he acted and talked on other and ordinary occasions.

We are not to be .understood as holding that a nonexpert witness may not be able to intelligently answer, from the acts and conversation of a person with whom he had been but once, that in his opinion such acts and conversation as he observed and heard showed such person to be in the opinion of witness, of unsound mind, or the contrary; but we are laying down the rule that when either party resorts to testimony that the conduct or the conversation of a given person on a given occasion, in the opinion of the witness, was normal or abnormal, usual or unusual, that such opinion is inadmissible, unless such witness qualifies by showing himself to have had reasonable opportunities for knowing the normal and usual attitude, acts, and conversation of the party inquired about. None of said witnesses mentioned, to whom said question was put by the state, showed any reasonable acquaintance with appellant when his mind was in its usual and normal condition, and none of them testified to sufficient facts to justify a comparison between his mind on said occasion and when his brain was in its usual and normal condition. The fact that, insanity was the defense makes such .errors more material.

The charge of the trial court on the question of insanity is of unusual length. Great care should be taken to avoid repetition and the insertion of unnecessary details.

For the errors indicated, the judgment of the trial court is reversed, and the cause remanded for a new trial.

On Motion for Rehearing.

MORROW, J.

Responding to the able and forceful presentation of the motion for rehearing on behalf of the state by Assistant Attorney General and the county attorney of Tarrant county, we have made a careful re-examination of the case.

Touching the criticism of the references in the opinion to the statement of facts, we will not pause to review the office of the statement of facts with reference to questions of law presented on appeal, further than to reiterate what has often been said, that the bill of exceptions should be sufficient, without the aid of the statement of facts, to disclose the error complained of (Davis v. State, 14 Tex. App. 645), adding that where the record contains a statement of facts, and the bills of exceptions are prepared and filed in accord with the statutes, the court will not feel called upon to give to the rules relating to their construction an effect so restrictive as to defeat the purpose of the law requiring bills of exceptions. The statute (Rev. St. 1911, art. 2059) declares that no form shall be required, but that the objection to the ruling shall be stated with such circumstances, or so much of the evidence, as may be necessary to explain it, and no more, and the whole as briefly as possible. Article 2060 provides that reference may be made to the statement of facts. In a criminal case it is necessary to read the statement of facts to determine the sufficiency of the evidence before an af-firmance can be ordered; and, touching the practice of this court throughout its history to consider the legal questions presented in the light of the facts, we quote the remarks of a learned law writer:

“The Texas Court of Criminal Appeals always considers the entire record, weighing, analyzing, and thoroughly digesting all the evidence before applying the law to the case in hand.” Wharton’s Criminal Evidence, vol. 1, p. 491, note.

Concerning the rules of practice, it was ■said, in substance, by Chief Justice Phillips of the Supreme Court that they are not intended to incumber the courts with technical and arbitrary requirements, or to enjoin such rigid adherence to them as precludes their observance by reasonable and substantial compliance. Railway v. Pemberton, 106 Tex. 466, 161 S. W. 2, 168 S. W. 126.

Looking alone to the bills of exceptions, we are advised thereby that the witness Estes had known the appellant since his youth; that he visited him in the jail the. morning after the shooting, and observed his physical condition and his demeanor. He offered to testify that he observed the expression of the eyes of accused; that it was vacant and glaring, “a vacant stare, almost expressionless”; that he “did not appear to be conscious of what was going on, or interested about the presence of the witness, or solicitous for assistance, or anything of that kind”; that compared with his previous condition he was very .much reduced in flesh and emaciated, and “he impressed me as being very much torn up”; that he was in a collapsed state physically, very nervous, pale, not able to talk consecutively, not strong and robust as the witness had previously seen him.

Finney was shown by the bill to have visited the appellant at the jail the morning after the shooting, and to have been present when the appellant was released on bond, to have taken him home with him and kept him in his house from Monday morning until Thursday. This witness, if permitted, would have testified that during this time the appellant appeared physically collapsed, very nervous and weak, pale, and had no. color in his face, and would also have given his opinion that during that time his mind was unsound.

It is suggested that, tested by the bills of exceptions, the court’s ruling that neither the witness Estes nor Finney were qualified to give án opinion, because not shown to have possessed such intimate acquaintance or means of observation as would enable them to form an accurate judgment, was correct. To sustain this, the case of Williams v. State, 87 Tex. Cr. R. 349, 39 S. W. 690, is relied on. The evidence proffered in that case was rejected because there were no facts, stated upon which it could be based. The court said:

“Nothing is stated but the bare fact that they had known him, had spoken to and talked with him, and had some dealings with him. The character of the dealings, the subject of the conversation, whether he talked intelligently or not, in fact nothing of this sort is stated. * ⅜ * It is important that the facts upon which the opinion of the witness is given should go to the jury, in order that they may have some standard by which to test the value of the opinion given. If the act, conduct, or conversation detailed, to the ordinary understanding, was of a trivial character, it would serve to characterize the opinion given by the witness. On the contrary, if it was of an unusual, eccentric, or extraordinary character, it might be of great value to the jury in passing upon the sanity of the defendant.” “If the witnesses had stated any fact, such as the conduct of the defendant, conversations with ther defendant, some acts of the defendant, however meager they might appear, there would be something upon which” to base “the testimony — that is, the opinion.”

Presiding Judge Hurt, in Burt’s Case, 38 Tax. Cr. R. 397, 40 S. W. 1000, 39 L. R. A. 305, 330:

“This is not like the Williams Case, 37 Texas Crim. Rep. 348 [39 S. W. 690]. In that case no facts were stated by the nonexperts as the basis of their opinion. Here the witnesses give a very full detail of facts.”

It seems apparent from these quotations that the ruling in Williams v. State was not based upon the absence of sufiicient acquaintance, although it is said therein:

“Some of the witnesses had hnown the defendant for only a brief time, * * * simply acquainted -with him, yet they were permitted ⅜ * * to give to the jury their opinion as to his sanity, without stating any act, conduct, or conversation with him.”

It is said by Mr. Underhill in his work on Criminal Evidence, page 811:

“No rule can be laid down as regards the amount of knowledge which the nonexpert witness must possess. The weight of the opinion is for the jury”

—and further:

“The nonexpert must have had some acquaintance with the accused, and some opportunity to observe his conduct, upon which is based the opinion. If it shall appear prima facie that the witness did not have sufficient time for observation, his evidence should be excluded.”

The Supreme Court of Indiana, in Colee v. State, 75 Ind. 511, said on the subject:

“It is true that a nonexpert witness must always state the facts upon which he bases his opinion as to the mental capacity of a defendant in a criminal prosecution, and it is also true that it must appear that he has some knowledge of the acts and conduct of the person upon whose mental condition he declares his opinion. The extent of this knowledge has never been defined, and we cannot frame any general rule which will determine just how much or how little knowledge will entitle the witness’ opinion to admission. * * * court cannot decide whether the opinion is of much or little weight; its duty is merely to decide whether such knowledge is shown and such facts stated as entitle the witness to express any opinion at all.”

In the state of California a statutory rule obtains to the effect that such opinion may be given alone by an “intimate acquaintance.” Construing this statutory rule, the Supreme Court of California has stated that no fixed rule can be laid down to determine who is an intimate acquaintance within the meaning of the statute; and the opinion of witnesses has been frequently admitted in that state, where accompanied with the facts supporting it, on the subject of sanity, when the acquaintance with the party in question extended over a very limited time. See People v. Suesser, 142 Cal. 360, 75 Pac. 1093; In re Budan’s Estate, 156 Cal. 230, 104 Pac. 443.

The question of what are adequate means of observation is not a technical one. Bishop’s New Crim. Procedure, § 679; Williams v. State, 37 Tex. Cr. R. 351, 39 S. W. 687. The fact that no conversation with the appellant was detailed by the witnesses whose opinion was excluded is not controlling. This court, through one of its most accurate and learned judges, said:

“The deportment, conduct, employment, manner of speech, habits, and all traits and demeanor” are proper elements in a predicate for nonexpert opinions.

See opinion of Judge Ramsey, Turner’s Case, 61 Tex. Cr. R. 97, 133 S. W. 1054.

In this case the previous decisions of this court are but emphasized. Cannon v. State, 41 Tex. Cr. R. 467, 56 S. W. 351; Tubb v. State, 55 Tex. Cr. R. 622, 117 S. W. 858; Bane v. State, 59 Tex. Cr. R. 603, 129 S. W. 353; Burt v. State, 38 Tex. Cr. R. 397, 40 S'. W. 1000, 43 S. W. 344, 39 I». R. A. 305, 330. In fact, such was the view expressed in Williams’ Case, supra. The court adopting a quotation says:

“After all, it is the facts which the witness details, the conduct which he describes, which chiefly and particularly constitute the testimony to be relied on.”

See the ease of People v. Manoogian, 141 Cal. 593, 75 Pac. 177.

In Holland y. Zollner, 102 Cal. 633, 36 Pac. 930, the court said:

“The appearance of a person at a given time is one thing; the opinion of a "witness as to the mental condition of that person, based on an [intimate] acquaintance with him, is quite another.”

And in People v. McCarthy, 115 Cal. 255, 46 Pac. 1073, a capital case, the jailer who saw the accused on the day of his arrest was permitted to testify that the appellant appeared rational at that time. Buswell on Insanity, p. 255, § 247, quotes with approval a decision which contains:

“In the case of insanity a witness may state facts, may give the look of the eye and the actions of the man, but unless he is permitted to tell what they indicate, or, in other words, be permitted to express an opinion, he cannot convey to the mind distinctly the condition of the man that such acts and looks portray.”

In the instant case, onp of the witnesses would have testified that he observed the accused the day after the shooting; that in his eyes was a vacant stare; that they were almost expressionless; that he did not appear to be conscious of what was going on. Another said he appeared physically collapsed, nervous and weak, pale and no color in his face, and, based upon his close observation of him while he cared for him in his own house for several days, offered to express the opinion that his mind was unsound. Another said that he appeared collapsed physically, nervous, pale, not able to talk consecutively. It may be conceded that the facts and details set out in the bills of exceptions are meager. Not more so, however, than were those upon which the witnesses for the state were permitted to express the opinion that appellant was sane. One of these, Wlllbum, arrested the appellant after the shooting. Asked what appellant said, the witness replied: “Oh, nothing much; he said something like T loved those two brown eyes better than I lovéd my own life.’ ” That he ran his hand in his pocket and said to Mr. Ellsworth, “I owe you $1.50, and here it is,” Another witness, Keller, said that on Saturday before the shooting on Sunday appellant took supper with the witness and his wife, and later in the evening thejr took a drive in an automobile; that the appellant did not talk much, but' talked some. Mrs. Keller also gave her opinion upon the same facts. Another witness saw the appellant at about 11 o’clock on Sunday preceding the shooting in the afternoon; testified that while she was otherwise engaged, appellant and her husband had a conversation together about chickens and matters of that kind. The county attorney was asked the following question:

“Of course, you took a statement from him that we expect to introduce in evidence here. Did you from his conduct and his conversation there, and his acts in general, notice anything about him that would indicate that his mind was at that time anything other than that of a normal person?”

All of these witnesses, upon the predicate mentioned, were permitted by the court to give their opinions, at least were permitted by the court to answer to the inquiry that they saw nothing to indicate that his mental condition was other than that of a normal person. The question as to the sufficiency of the predicate is primarily for the court. We confess our inability to discern in what sense the predicate condemned as insufficient with reference to the witness Estes and the witness Finney was inferior to that which prompted the court to • admit the opinions of the state witnesses mentioned. The writer is of the opinion that the use of the word “normal” in the inquiry of the state witnesses was not of such consequence as to condemn the question, inasmuch as the jury doubtless understood the inquiry to be whether his appearance was that of a natural man. See Century Dictionary.

It was the theory of the appellant that his mind was rendered unsound on account of his weakened and nervous condition, resulting from sickness, aggravated by' family troubles threatening separation from his wife and children. This theory was supported by the testimony of witnesses, including his physidian. To rebut this theory, the state, among other evidence, used the testimony to which we have adverted. We are aware of no rule of evidence denying the appellant’s right to the testimony of Estes to the facts we have quoted, and his opinion thereon; and, considering the manner in which the case was tried, the evidence of Finney should have been received.

From what has been said, it follows that the motion for rehearing should be overruled. 
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