
    NEWMAN v. STATE.
    (No. 8196.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1924.
    Rehearing Denied March 4, 1925.)
    1. Criminal law <&wkey;3l I — •Defendant’s sanity presumed.
    Defendant’s sanity at time of crime is presumed.
    2. Criminal law <&wkey;33l— Defendant had burden of proof on issue of insanity.-
    Defendant had burden of proof on issue of insanity.
    3. Crimina! law <&wkey;570(2) — Insanity provable-by preponderance of evidence.
    Defendant was required to prove insanity by preponderance of evidence.
    4. Witnesses <§='274(2) — Cross-examination of character witness as to whether witness had heard that defendant had been accused of burning property for insurance held proper.
    Where defendant put in issue his general reputation for honesty and fair dealing, it was competent for state to cross-examine defendant’s witness as to such reputation, as to whether he had heard that defendant had been accused of burning his property in order to obtain the insurance.
    5. Criminal lay/ <&wkey;485(l) — Rule as to sufficiency of hypothetical question stated.
    Hypothetical question need not embrace all the facts in evidence, but is sufficient, if propounded in fair and reasonable manner.
    6. Criminal law 144(12) — Examination assumed to have been conducted in fair and reasonable manner.
    Examination of expert witness will be presumed to have been conducted in a fair and reasonable manner, where contrary does not appear from record.
    7. Criminal law <&wkey;48 — Test as to insanity-stated.
    , Defendant was not responsible for act if his mind was so deranged at time of prosecution that he was incapable of distinguishing between, right and wrong,, though not permanently insane.
    8. Criminal law <&wkey;>'773(l) — Charge defining-“insanity” held proper.
    In prosecution for cattle theft, charge, defining “insanity” to mean that “the mind of a. person is in such an impaired and unsound state to such a degree that it overwhelms the reason, conscience, and judgment, that it deprives him of the knowledge of the right and. the wrong of the acts done by him, and acts< from an uncontrollable and irresistible impulse,” held; proper.
    [Ed. Note. — For other definitions, see Words' and Phrases, First and Second Series, Insane— Insanity.]
    9. Criminal law <&wkey;773(l) —Charge, submitting issue of insanity, held proper.
    In prosecution for cattle theft, charge,, submitting issue as to whether defendant was; insane at time of crime, held; proper.
    10. Criminal law &wkey;»829(6) — Denial of special, charge that it was not necessary that linsanity be permanent, or that accused be a “raving maniac” at time of crime, held not reversible- error.
    In prosecution for cattle theft, in which defendant claimed to have been insane at time of crime, rejection of special charge that it was not necessary that insanity be permanent, or that accused be a “raving maniac” at time-of crime, held not reversible error, in view of' adequate general charge given.
    
      Appeal from District Court, Dickens County ; J. H. Milam, Judge.
    W. A. Newman was convicted of cattle theft, and he appeals.
    'Affirmed.
    G. E. Hamilton, of Matador, and Stinson, Coombes & Brooks, of Abilene, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Theft of cattle is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

The evidence makes it clear that the appellant, without the consent of the owner, took something over 100 head of cattle belonging to the witness Beeman, under circumstances which justified the jury in the verdict rendered.

Appellant interposed the defense of insanity and introduced a number of nonexpert witnesses upon this subject. Some of them gave the opinion, upon proper predicate, that he was insane, others that he was not “at himself.” Two doctors were introduced by the appellant. They did not, however, give the opinion that he was insane. Upon that subject they were silent. Their testimony related to his family history and revealed the fact that he had two sisters who had become insane; that his brother was affected with epilepsy; and that his mother was of very nervous temperament.

One of the doctors, on a hypothetical question, relating incidents favorable to the appellant which were detailed by the various •witnesses as a predicate for the opinion of insanity, said, upon the hypothesis, that this testimony was true; that the appellant was, in the opinion of the doctor, insane. However, on a hypothetical question of a similar nature propounded by state’s counsel, he gave a contrary opinion.

Beeman was the owner of a ranch and a number of head of cattle. Appellant had been in the employ of Beeman, in charge of his ranch, though before the prosecution began his relations had been severed. Beeman resided in another state. As we understand the record, while the ranch was in control of the appellant, he took possession of over 130 head of cattle, severed them from the others in the herd, gave them a separate mark in brand, and put them into a neighboring pasture with the intent to sell them. Learning of the loss of his cattle, Beeman had several conversations with the appellant, which were detailed. Appellant first took the , position that his standing in the community was such that it would be useless to assail it; that he would make no statement touching the transaction. Subsequently, however, he proposed to reveal his connection with the transaction and the locality of the cattle if he could secure from Beeman the promise of immunity from prosecution. This was declined, however, but, relying upon the belief that Beeman would not prosecute him, the appellant disclosed the facts and the cattle were recovered by Beeman.

Appellant had been engaged in many large business transactions, and the record embracing a mass of testimony showing his various transactions, conversations, conduct, and demeanor is too voluminous to quote.

The issue of insanity was raised and submitted to the jury. Appellant insists that the proof of insanity was conclusive. In this we are not able to concur. His sanity was presumed. The burden to show the contrary by a preponderance of the evidence was upon him. The question was one of fact. Few of the witnesses gave the. opinion that he was insane. All of them detailed facts which the jury might or might not have regarded as of sufficient .weight to support the opinion given. In the light of these, they were called upon to weigh the opinions. Many of the acts detailed were entirely consistent with his sanity. The jury was' not unwarranted in concluding that insanity was not proved.

Appellant having put in issue his general reputation for honesty and fair dealing, it was competent for the state’s counsel to ask the witness who supported such good reputation, on cross-examination, whether he had heard that the appellant had been accused or charged with burning his’ property in order to obtain the insurance. Holloway v. State, 45 Tex. Cr. R. 303, 77 S. W. 14; 14 L. R. A. (N. S.) 692, note; Underhill on Crim. Ev. (3d Ed.) § 141. Nothing in the present record indicates that the question was asked otherwise than in good faith.

On cross-examination of an expert witness who had testified upon behalf of the appellant in response to a hypothetical question, state’s counsel did not offend against the rules of evidence in putting to the witness, on cross-examination, a hypothetical question in accordance with the state’s theory and embracing matters revealed by the evidence. It was not essential that in the question state’s counsel embrace all of the facts in evidence. It is necessary only that the examination be conducted in a fair and reasonable manner, and that it was so conducted is implied by the sanction of the question by the trial judge; the contrary not appearing from the record. Lovelady v. State, 14 Tex. App. 560; Burt v. State, 38 Tex. Cr. R. 444, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330; Underhill on Crim. Ev. (3d Ed.) § 190; Owen v. State, 52 Tex. Cr. R. 65, 105 S. W. 513; Davis v. State, 54 Tex. Cr. R. 236, 114 S. W. 366.

Appellant insists that, although he may not have been permanently insane, if his mind was so deranged at the time of the transaction as to render him incapable of distinguishing between right and wrong, he was not responsible for his act. This contention is sound, but the burden was upon the accused to establish this contention by a preponderance of the evidence. See Roberts v. State, 89 Tex. Cr. R. 454, 231 S. W. 759.

The law of insanity was embraced in the eighth and ninth paragraphs of the court’s charge, which we quote:

“(8) The term ‘insanity,’ as used in this charge, means that the mind of a person is in such an impaired and unsound state to such a degree that it overwhelms the reason, conscience, and judgment that it deprives him of the knowledge of the right and the wrong of the acts done by him, and acts from an uncontrollable and irresistible impulse.
“(9) Our statute provides that no act done in a state of insanity can be punished 'as an offense. You are therefore charged that, if you should believe from the evidence, beyond a reasonable doubt, that the defendant did commit the theft of the one head of cattle, as charged in the first count of the indictment, or, if you should believe that the defendant did unlawfully mark or brand the one head of cattle in controversy, as charged in the third count of the indictment, if you should believe this from the evidence, beyond a reasonable doubt, but, if you should further believe from a preponderance of the evidence that at the very time he committed the act or acts, if any, the defendant’s mind was in an impaired and unsound state to such a degree that for the time being it overwhelmed the reason, conscience, and judgment, and that the defendant acted from an uncontrollable and irresistible impulse, produced by such an impaired and unsound condition of the mind that it deprived him of the knowledge of the right and the wrong of the acts done, then you will find him not guilty, and, if you acquit the defendant on his plea of insanity, you will let your verdict state that you have done so.”

An exception was reserved to the eighth paragraph of the court’s charge upon the ground that it is more onerous than the law demands! The language used in that paragraph is found in the charge of the court embraced in Willson’s Crim. Forms (4th Ed.) p. 522, and has received the sanction of this court on a number of occasions. See Leache v. State, 22 Tex. App. 279, 3 S. W. 539, 58 Am. Rep. 638; Webb v. State, 8 Tex. App. 115.

We have failed to perceive in paragraph 9 any substantial departure from the charge submitting the issue of insanity which is recommended by Judge Willson in his Crim. Forms (4th Ed.) p. 519, and which has often been approved by this court. See Clark v. State, 8 Tex. App. 350; Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858; Miller v. State, 52 Tex. Cr. R. 72, 105 S. W. 502, and other cases in the note under the form mentioned.

Against the charge of the court appellant makes the point that his special charge told the jury that it was not necessary that the insanity be permanent or that the accused be a “raving mqniac” at the time of the commission of the act in order to absolve him; that it would be sufficient if it be -shown that at that time he was insane. 'We have observed in the record no evidence which is regarded as demanding a charge specially upon the issue mentioned. The main charge instructed the jury that, if at the Very time the act was committed, his mind was impaired to a degree that deprived him of the knowledge of right and wrong of the particular act, to acquit him. If there be evidence which rendered it error for the’ court to refuse the special charge, it has not been discovered or pointed out in the appellant’s brief.

The special charge on the subject of hereditary -insanity seems unsupported by the evidence. Its refusal was not error.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

The motion complains of an erroneous decision on our part with respect to special charge No. 1 asked by the appellant and refused, and also of our holding that the- general charge on insanity given by the court sufficiently presented the law applicable to the facts. We have carefully examined said special charge as well as the main charge, and the evidence relative to this issue. For us to agree with appellant’s first contention would be to ingraft upon our practice a departure from the generally- approved and accepted forms of charges on insanity, and to make necessary the giving of a charge in substance that it is not necessary that insanity should be permanent, or that the person charged be a raving maniac at the time of the commission of the alleged offense, in order to absolve him from guilt. Appellant cites Montgomery v. State, 68 Tex. Cr. R. 78, 151 S. W. 816, as supporting his contention that this part of said special charge was couched in apt language and should have been given. Nothing in the opinion in that ease commits this court to the adoption of that language, nor is its correctness discussed therein. The trial court in the instant case might have seen fit to give such charge, and we can see no objection to it, but are unwilling to hold that a case, giving a generally correct charge on insanity, should be reversed because of the failure of the court to incorporate this language in it. From the facts in the case before us it appears that there was evidence showing insanity in appellant’s family, but, as is clearly stated in the special charge asked by appellant and given, this question is one peculiarly for the jury to decide from all the evidence in the case. A number of persons attested their belief that there was somthing wrong with appellant’s mind and gave instances which formed the basis for their opinions, and others expressed their belief that he was insane at the time he took the cattle in question, but most of said witnesses would aver that during an extended acquaintance with appellant they had observed but few instances deemed by them to evidence mental unsoundness. The great majority of his acts, as observed by them, were not those of an insane man. The question for the jury was not whether appellant exhibited moments or instances of mental impairment, but what was his condition in that regard when he drove the 136 calves alleged to have been stolen, for many miles away from the ranch in which they were, aided in branding them and placing them in the pasture of another party. The first paragraph of said special charge presents an attempted grouping of facts as to heredity and strain which might be productive of insanity, which' grouping should not obtain in our practice. The inevitable result of same, either for or against the accused, is a dangerous approach to getting on the weight of the testimony.

We have again examined the charge of the court on this subject, which is quoted in the original opinion, and find ourselves unable to believe that it was insufficient or that the jury could have misunderstood its statements of the law.

Regretting our inability to agree with appellant, the motion for rehearing will be overruled. 
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