
    SHIELDS v. STATE.
    (No. 8911.)
    (Court of Criminal Appeals of Texas.
    May 5, 1926.)
    1. Criminal law &wkey;>448(10) — Testimony of officer as to actions of defendant simulating- insanity when in presence of jury, and his-actions when not in their presence, held proper.
    In prosecution for theft of automobile defended on grounds of insanity, testimony by officer that defendant had face in hands, rolled his eyes, etc., when in presence of jury, but acted “all right” when not in their - presence, held: properly admitted.
    2. Criminal law <&wkey;448(IO) — Officer’s testimony that defendant, simulating insanity before jury, acted “all right’’ when not in their presence, held not objectionable as passing upon . , defendant’s sanity.
    Testimony by officer as to defendant’s actions simulating insanity when in presence of jury, but that he acted “all right” when not in their presence, held not objectionable by use of “all right,” since officer was not undertaking to Say that-defendant was of sound or unsound mind.
    3. Criminal law &wkey;*452(2) — 'Testimony of non-expert acquainted with defendant, that he observed nothing leading him to believe defendant of unsound mind, held- admissible.
    Testimony of nonexpert witness acquainted with defendant, that he had never observed anything in conversation with him or in conduct or appearance of defendant which led him to believe defendant of unsound mind, held properly admitted.
    4'. Criminal law <&wkey;>452(2) — Nonexpert witnesses held to have sufficient opportunity to observe defendant to testify that they heard nothing leading them to believe him of un-> sound mind, and that in their opinion he was of sound mind.
    Nonexpert witnesses held to have had sufficient opportunity to observe the speech and conduct of defendant to enable them to testify that they had never heard anything leading them to believe defendant was of unsound mind, and that in their opinion he was of sound mind.
    5. Criminal law <&wkey;695(6) — Objection to entire testimony of nonexpert witnesses on mental condition of defendant is untenable, where part of such testimony was clearly admissible.
    Where part of testimony of nonexpert witnesses that they observed nothing in defendant leading them, to believe him of unsound mind was clearly admissible, objection to their testimony as. a whole is untenable, though witnesses’ further statement that they believed defendant of unsound mind might be objectionable.
    6. Criminal law t&wkey;452(2) — Nonexpert testimony as to- accused’s, sanity is not incompetent, unless there is so little basis for conclusion as to show abuse of discretion by trial judge in admitting it.
    Nonexpert testimony as to sanity of accused will not be held .incompetent, unless there appears to have been so little knowledge, opportunity, etc., shown to form a conclusion in regard to accused’s sanity as would manifest an abuse of discretion by trial judge in admitting it.
    7. Criminal law &wkey;>465 — Testimony of witness acquainted with accused, that he has observed nothing to create doubt in his mind as to his sanity, should not be excluded be- ■ cause of failure to recall conversation with or act of accused.
    Testimony of witness, who has frequfently conversed with and observed conduct of accused defending on grounds of insanity, that he has observed nothing to create doubt in his mind as to accused’s sanity, should not be excluded, though‘he cannot recall details of a single conversation or select any particular act of accused.
    Appeal from Criminal District Court, Dallas County; Grover C. Adams, Special judge.
    Ewell Shields was convicted of theft of property of value of more than $50, and he appeals.
    Affirmed.
    B-askett & De Lee, of Dallas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   LATTIMORE, J.

Conviction in criminal district court of Dallas county of theft of property of the value of more than $50; punishment two years in the penitentiary.

There was ample evidence to support the conviction of appellant of theft of an automobile. It was unquestionably stolen and turned up in his hands a few days after its loss. He sold the car, giving an assumed name. The defense was insanity. By four bills of exception, complaint is made of the admission of the testimony of nonexpertwitnesses. The bill relative to the testimony of Officer Davis will not be further discussed than to say we deem it permissible for him to detail the way appellant acted when in the presence of the jury, such as drooping his shoulders, hiding his face in his hands, rolling his 'eyes, etc., and to further state that when 'not in the presence of the jury appellant acted all right. Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330. No specific objection was addressed to the testimony because of the use of the expression “all right”; the witness was not undertaking to say appellant was of sound or unsound mind, but merely that he acted differently when in the .presence of the jury and when out of such presence.

The objection to the testimony of the other three nonexpert witnesses was substantially ,the same. Each of the three testified to various opportunities for observation of appellant, conversations with him, and more or less extended acquaintance with him. We entertain no doubt of the admissibility of the testimony of witness Pack, who expressed no affirmative opinion as to the soundness of appellant's mind, merely saying that he had never observed anything in conversations with or in the conduct or appearance of appellant which led him to believe him of unsound mind. Witnesses Hanson and Blanton, after stating their association with and opportunities for observing appellant and their extended acquaintance with him, and after saying that they had never heard him say ov saw him do anything which led them to believe him of unsound mind, further expressed it as their opinions that he was of sound mind. Referring particularly to witness Hanson, we note that he gave testimony that he had known appellant a year and a half, had been with him at least twenty-five times, had had conversations with him out near his home where appellant visited, also around the Southland Hotel, and at the city hall, and had extended conversations with him about stolen automobiles, etc. ■ Upon this predicate Hanson was allowed to testify as follows: ’ .

“I never heard Mm say anything that would lead me to believe he was of unsound mind. I never saw- anything in his conduct, his appearance, that led me to believe he was of unsound mind. He always seemed normal 'to me. Prom my observation of him and conversations with him, in.my opinion, he is of sound mind. I have seen him a sufficient number of times to believe he is of sound mind.”

Blanton showed equal or greater familiarity and opportunities for observing the de-pieanor, acts, and conduct of appellant than did Hanson and gave substantially the same testimony. To this testimony appellant made a blanket objection to the effect that the witnesses were nonexperts — that no sufficient predicate had been laid because the witnesses' did not go into details of the conversations had, nor had they detailed the acts and conduct and appearance of appellant so as to enable the jury to pass upon the accuracy of their conclusions.

The rule seems, well settled in this '.state that a nonexpert witness, who has shown reasonable opportunity to observe the acts and conduct of the party inquired of, may state that he has never observed anything in the acts, speech, demeanor, or conduct of such party which were peculiar or which led witness to believe or conclude such party of unsound mind or ábnormal? Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052; Richards v. State, 71 Tex. Cr. R. 149, 159 S. W. 40; Plummer v. State, 86 Tex. Cr. R. 494, 218 S. W. 499; Long v. State, 82 Tex. Cr. R. 312, 200 S. W. 160; Gardener v. State, 90 Tex. Cr. R. 341, 235 S. W. 897; Kellum v. State, 91 Tex. Cr. R. 272, 238 S. W. 940. We are fully satisfied that both Hanson and Blanton showed themselves to have had sufficient opportunity to observe' the speech, language, and conduct of appellant to enable them to state as above indicated, so that the objections, in so far as they related to that part of the testimony of the said witnesses, were certainly not well founded. Said witnesses were permitted to go further and state that in their opinions, based on their knowledge and opportunities for observation, appellant was of sound mind. The objection being to the quoted testimony of said witnesses as a whole or in solido, a part of it being clearly admissible, the objection would not be tenable. In Ortiz v. State, 68 Tex. Cr. R. 526, 151 S. W. 1056, Judge Davidson, on the authority of Payton v. State, 35 Tex. Cr. R. 508. 34 S. W. 615; Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872, and cases cited in section 47, Branch’s Crim. Law, lays down the rule that a bill of exceptions it too general for consideration if it includes a number of statements some of which are clearly admissible and nothing in the objection made directly singles out the particular part of the statement which might otherwise be objectionable. ■ - •

In this connection, however, we may say that it being manifestly impossible for this court to lay down any hard and ■ fast rule as to the exact amount and extent of the predicate which should precede the testimony of a nonexpert witness offered to prove the sanity of the accused, we will not hold such testimony incompetent in a given case unless there appears to hdve been so little knowledge, opportunity, etc., shown to form a conclusion in the regard mentioned, as would manifest an abuse of the discretion of the trial judge. We might further say that the natural, usual; and ordinary are not calculated to, and most frequently do not, excite attention, while the unnatural, unusual, and extraordinary do excite such attention; and'it would seem reasonable that a witness called to testify to the sanity of a party who is defending against a criminal charge on the ground of insanity, when such witness had had frequently and during a long period of time met and conversed with and observed tbe ordinary demeanor and conduct of the accused., even though he might not be able to recall details of a single conversation, or select any particular act or look which had fixed itself in his memory, still such witness ought not to be barred from saying that he has observed nothing in the speech, acts, or conduct of such party as to indicate to him or create in his mind a doubt of his sanity or a belief that he was abnormal. Thomas v. State, 98 Tex. Cr. R. 428, 266 S. W. 147. We further observe that we are unable to -draw the fine distinction between the weight, effect, and admissibility of a statement by one who shows himself to have seen, associated, and been with another enough to enable the witness to say that he has never seen or heard anything in the words, looks, or ■ acts of such other to indicate that he is of unsound mind or abnormal, on the one hand, and the same statement in other words, viz. that from the length of such association and opportunity for such observation, even though he cannot remember details, he is of opinion that the party is of sound mind. In the instant case we think the witnesses qualified beyond doubt to express their opinions that they had never seen anything in the conduct of appellant to indicate that he was of unsound mind, and to say that in their opinion he was of sound mind. The bill shows no error. .

There are three bills of exception complaining of the refusal of special charges, none of which are deemed of sufficient merit to call for discussion, and in the refusal of none of which do we find any error on the part of the trial court.

The judgment will be affirmed. 
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