The judgment in this case was affirmed at the Austin term, 1897, of this court, and the case comes before us now on, motion for rehearing by the appellant.
In the original opinion we discussed the question as to whether or not expert opinion could be obtained upon a partially stated hypothetical case, this question being discussed with reference to the bill of exceptions in regard to the testimony of Dr. T.D. Wooten. The same subject was presented in a bill of exceptions in regard to the testimony of Dr. Davis. We disposed of the question presented in the bill of exceptions with reference to the testimony of Dr. Davis by reference to what we had said in regard to the bill of exceptions as to Dr. T.D. Wooten's testimony. Counsel for appellant, on motion for rehearing, insists that there is a very material difference in the bills of exception. From the record it appears that Dr. Wooten was introduced by the State, and a hypothetical case submitted to him, and that this question did not include all of the evidence bearing upon the question of sanity. Dr. Wooten answered the question that, in his opinion, defendant was sane. Afterwards the State asked the witness his opinion based upon a hypothetical case embodying all the evidence in the case, upon which the witness expressed the same opinion as upon the State's first question; that is, that appellant was sane. Appellant then put a hypothetical question to the witness based upon his theory of the case, and upon which the witness answered that the defendant was insane. A full opportunity was allowed to get the opinion as to the defendant's sanity based upon any hypothesis to be inferred from any evidence in the case. The objection to this procedure was that the State obtained the witness' opinion upon an incomplete hypothetical case. Let us concede for the argument that the full case, containing all the testimony, offered either by the State or the defendant, must be embraced in *Page 445 the hypothetical case; still, if this was not done, no complaint can be urged by appellant in regard to the testimony of Dr. Wooten, because after the defendant had submitted his hypothetical case, the witness answered that, in his opinion, the appellant was insane. Upon no ground of reason or common sense could appellant be heard to complain of this matter in the shape presented by this bill. Appellant was permitted to form a hypothetical case, not alone upon his testimony, but upon any and all the testimony introduced upon the trial. When the whole case was put, the witness answered that his opinion, was that defendant was sane. When the defendant's case, based upon the testimony offered by him, was put to the witness, he answered that defendant was insane. But it will be observed that the bill shows that the State submitted the whole case, and upon which the witness answered that defendant was sane. We can not comprehend how appellant can complain of this. As to the contention of appellant that the opinion was only upon a partial or incomplete statement of the case, we will treat of this subject when we reach the bill of exceptions pertaining to the testimony of Dr. Davis.
It occurs by a bill of exceptions that Dr. Davis was introduced as an expert; that the State submitted a hypothetical case based upon its testimony bearing upon the question of sanity, and obtained the answer that appellant was sane. The defendant objected, because all the testimony bearing upon the question of sanity was not embraced in the hypothetical case put by the State; but the bill further shows that the defendant then put a hypothetical case to the witness, based upon the assumption that all reasonable inferences to be drawn from his testimony were true, including the fact that defendant, without reason, motive, or cause, killed his wife and children, upon which question the witness answered that, upon such hypothesis, he would say that the defendant was insane; that all of the testimony bearing upon the question of sanity was embraced in the State's hypothetical question and the defendant's hypothetical question combined.
We have presented to us the question discussed in the original opinion, in treating of the bill of exceptions pertaining to the testimony of Dr. Wooten, which is: Can the State submit a hypothetical case which does not include all the testimony bearing upon the question of sanity, and obtain an opinion from the expert; or must the question propounded contain all the evidence bearing upon the question of sanity, whether introduced by the State or the defendant, and believed to be true or false by the State? We hold, as we did in the original opinion, that the State can formulate a hypothetical case embracing such facts bearing upon the question of sanity as it deems proper and competent, and obtain the opinion of an expert. "We hold that, if the defendant is not satisfied with the hypothetical case submitted by State, he has the privilege of submitting his case, not only as embraced in his testimony, but upon any and all testimony introduced on the trial. Of course, if the case submitted by the State is unfair and unjust to the appellant, the court will correct this; and if the court fails to do so, and the defendant proposes to *Page 446 submit a case embracing all the facts bearing upon the question, and he is denied this right, error would be patent.
Recurring to the bill of exceptions pertaining to the testimony of Dr. Wooten: If the last proposition be correct, the State was under no obligation, and was not required to submit the full case, but had the right to submit the case which it thought was supported by the testimony, and was not bound to submit a case involving testimony believed by the State to be false. And we repeat that the disposition of the bill of exceptions as to Dr. Wooten's testimony disposes of the bill of exceptions as to the testimony of Dr. Davis; for, if the State is not bound to embrace all the testimony bearing upon the subject, then it was not required to do so in reference to Dr. Wooten, but after having done so, appellant had no right to complain.
Now, we have this question: Is it necessary, in submitting a hypothetical case, for the State to include every particle of the evidence bearing upon the question of insanity, in order to obtain a legal answer from the expert? If so, the contention of the appellant in the Davis bill of exceptions is well founded; for that bill shows that the opinion was obtained from the expert upon a hypothetical case that did not embrace the theory of the defense, and did not embrace all the testimony bearing upon the question of sanity. The question therefore is: Must the hypothetical case submitted to the expert include all the testimony bearing upon the question of sanity, in order to obtain a legal and proper answer from the expert? In the original opinion we discussed this very question, and held that it was not necessary. We have seen nothing to change our opinion upon this subject. The authorities are just that way. But it is contended by counsel for appellant that we have settled the law to the contrary in Webb v. State, 9 Texas Criminal Appeals, 490; Leache v. State, 22 Texas Criminal Appeals, 279, and in Williams v. State, 37 Texas Criminal Reports, 348.
Now, we assert that the question here discussed has never been presented in any case before either the Court of Appeals, Court of Criminal Appeals, or the Supreme Court of this State. Counsel for appellant cites no case decided by the Supreme Court, but relies upon the cases of Webb v. State, Leache v. State, and Williams v. State, supra. What was the question before the court in Webb v. State, supra? It was as to whether or not an expert could give his opinion unless he had heard all the testimony bearing upon the question at issue. It was not a case in which the hypothetical case was submitted to an expert who had not heard the evidence. The question arose in this manner: Dr. Stone, witness for the defendant, heard all the testimony introduced on the trial, and gave as his opinion that he had heard no evidence of the insanity of the accused that could not be explained by other causes, such as indulgence in drink or debauchery. The State, upon cross-examination of Dr. Stone, asked what his opinion was, based upon the testimony of the witness Pool. Dr. Stone answered that from the evidence of Pool alone he would have considered Webb insane, and believed the mind of defendant, at the time the *Page 447 particular offense was committed, to be more or less disturbed from some cause, but not to the extent to relieve him entirely from responsibility. In passing, the court say "that the witness had heard all the testimony in the case, and did not believe the defendant insane. This opinion, founded upon the whole testimony, must have included, and did include, the testimony of the witness Pool. If it did, then how could any injury result to defendant by asking, and that, too, upon cross-examination, the opinion of the witness upon the testimony of Pool alone, we confess we can not conceive. It would have been otherwise if the expert had not heard and formed his opinion upon the whole case; for in that case the question and answer would have been not only improper, but illegal and inadmissible." Now, it will be observed that in the Webb Case the hypothetical question was not propounded to an expert who had not heard the testimony, but the expert had heard all the evidence. It may be insisted that, if it is necessary for the expert to hear all the testimony before giving an opinion, therefore is absolutely necessary that the hypothetical case submitted to an expert who did not hear the testimony must embrace all the testimony bearing upon the question of sanity. We are not called upon to pass upon this question; but the reasons for the one rule will not apply to the other rule. Take the most enlightened expert, and let him hear all the testimony; he can arrive at a correct conclusion as to the sanity of the accused; and at the same time, if called upon to state all the facts from which he makes the conclusion, he would most generally fail. The impression from the facts is made upon his mind, without the ability to produce the facts in the statement. But, be this as it may, the question involved in the Webb Case is not the question before us. Now, it is true that Presiding Judge White in that case states that the full case must be submitted, and he asserts that all the authorities support this proposition. We find to the contrary, that the overwhelming weight of authority supports the proposition "that the State has the right to submit its hypothetical case, and, if the accused is not satisfied with it, he can state his hypothetical case." This proposition is conclusively established by the authorities cited in the original opinion; and, in addition to those, we desire to cite the elaborate opinion in the case of Coyle v. Commonwealth, 104 Pennsylvania State, 117. To be more explicit: "Each side has the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence; and, if meagerly presented in the examination on one side, it may be fully presented on the other, the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted." Now, the question presented to us is one in which the State presented its theory of the hypothetical case to the expert. (We are now treating of the bill of exceptions in reference to Dr. Davis' testimony.) The State had a right to select its theory of the evidence, and to base a hypothetical case upon that state of facts which the State thought to be true. The defendant had a right to submit a hypothetical case upon the state of facts which he believed to be true. Of course, if the statement of a hypothetical case for *Page 448 the State was unfair and unjust to the appellant, and objections had been raised, the court would have controlled this matter; but that does not appear in this case. It would be almost impossible for the State to embrace all the testimony introduced in evidence in the hypothetical case, without impressing the jury with the fact that the State believed that all of the evidence and circumstances embraced in the case were in fact true. This would be a great injury to the State. It would be in the nature of a concession of facts which the State proposed to controvert. Nor would it be just to the defendant to require him to embrace all the facts in his statement — those which tended to show sanity as well as insanity — when he did not believe the testimony, and in fact proposed to impeach the witnesses swearing to the facts tending to show sanity in some manner, or to show that they were unreasonable and not in fact true. The record shows that a very full statement was made by the State presenting its theory of the facts believed to be true; and the record also shows that the defendant presented his theory of the case. This being so, the expert was in possession of the whole case as effectually as can be presented practically upon a trial of a case.
In the Leache Case, supra, the question was in regard to placing the experts under the rule. It appears from the record that the experts were placed under the rule, and did not hear the testimony of the other witnesses. Leache contended that this was reversible error; that he had the right to have the experts present, so that they might hear the testimony in order to give an opinion. Presiding Judge White states "that it was not shown that the hypothetical case presented to the expert was defective in not submitting all the facts essential to an intelligent opinion; nor that the opinion was such as would have been given differently had the evidence been heard directly by these witnesses, and their conclusions drawn from it, and not from the hypothetical statements of it. We can not perceive that the discretion of the trial judge was abused in the matter to the prejudice of the defendant; that is, that, in placing the experts under the rule, no prejudice therefrom was shown to have resulted to the appellant." That was the only question in judgment. The remarks of Judge White in regard to the rule were not called for or necessary to the disposition of the question raised; but he states, relying upon Coyle v. Commonwealth, 104 Pennsylvania State, 117, "that, where the expert has not heard the evidence, each side has the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence; and, if meagerly presented in the examination on one side, it may be fully presented on the other, the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted." The question involved in the Leache Case, supra, was simply the action of the court in putting the experts under the rule, and all of the observations made by the presiding judge in regard to the rules which control in submitting hypothetical cases to an expert were dicta. But he concedes that each side has the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence. This concession *Page 449 is made in the face of the assertion that all authorities agree that it is inadmissible to permit an expert to give his opinion upon anything short of all the evidence in the case, whether he has personally heard it, or it is stated to him hypothetically.
In the Williams Case, supra, the only question before the court was as to the admissibility of the testimony of Dr. Armstrong, an expert, who testified that he had heard but a part of the testimony, but had read the newspaper account of the testimony of the witnesses on the question of insanity on the previous trial of the case. The court thereupon stated that the testimony was the same in the present trial, and permitted the witness, over the objections of appellant, to give an opinion as to the sanity of the defendant. We held in that case that the newspaper report was nothing but hearsay testimony, and that it was not competent for the judge to put such a hypothetical case to the witness. We stated, further, that, if the newspaper statement was eliminated, the witness was not authorized to give his opinion based only on having heard a part of the testimony of the witnesses. So the question here presented was not raised in said case, and what was said by us in referring to the Webb and Leache Cases, supra, was not at all necessary to that decision.
We misunderstood the bill of exceptions reserved to the testimony of Carrie Sparks. We thought that, the only objection urged to this testimony was that it was not in rebuttal; but, since our attention has been called to the bill in the motion for rehearing, we find that the appellant moved to exclude the evidence upon the grounds, condensely stated, of irrelevancy, that appellant was not shown to have been in the house, and a number of other objections. We therefore have the question as to whether or not, under the circumstances of this case, the evidence of this witness was admissible. When we look to the record, we find that the circumstances strongly tended to show that the appellant was at home. The evidence places Mrs. Burt there, as well as defendant, a short time after the expression was heard. This being the case, we are of opinion that the testimony was admissible, and have no doubt of its relevancy. It was conceded in the argument of appellant's counsel that defendant killed his wife and two children. About this there is no question. But it is contended that the evidence of this witness bears strongly on the question of sanity. We do not understand it in that way. The testimony shows that Mrs. Burt exclaimed, "I will stand this thing no longer!" To what "thing" she alluded is not disclosed. Whether it was the ill treatment of the husband, or whether it was the insane conduct of the defendant, is not shown. The exclamation may have been made because of the strange and unnatural conduct of an insane man, or might have been induced by the ill treatment of appellant towards his wife. We are left in the dark upon this subject. This exclamation could not have been made by the servant, for she was not at home; and the evidence shows no other female there except Mrs. Burt. Appellant insists, however, that the evidence fails to show that Burt was at home. The witness heard the exclamation *Page 450 after 7 o'clock in the evening. It is shown that defendant was there between 8 and 9 o'clock. The exclamation was made at his home, and the conclusion is reasonable that it was made by his wife to him. Be this as it may, appellant concedes, and the unquestioned facts of the case demonstrate that he killed his wife and children. We might admit, but we do not, the incompetency of this evidence; and yet no possible injury could have resulted to appellant. It is a strained conclusion that the remark made by the female in the house tended to show the sanity of defendant, for, as before stated, it might have resulted from the insane act of the appellant. If the jury believed, as they had a right to believe, that the exclamation was made by the appellant's wife to defendant, clearly the evidence was admissible. If they did not so believe, then no harm resulted to the appellant. If the jury believed that the appellant was insane, or had a doubt about it, they may have concluded that the exclamation was made by the wife, because of some misconduct of her deranged husband, or, if they did not believe he was insane, that the remarks were made because of the ill treatment of the defendant. We are left in a field of speculation, but we can not perceive, conceding the inadmissibility of the testimony for the argument, how, under the facts of this case, appellant could have been injured; that he killed his wife and children being a conceded fact. Now, it must reasonably appear that the exclamation testified to by the witness Sparks tended to show sanity, and nothing else; and, unless this is made to appear, no injury could have resulted. But we are of opinion that the evidence was admissible, independent of these considerations.
The court instructed the jury upon the subject of express malice as follows: "(6) Express malice, which is absolutely essential to constitute murder in the first degree, exists where one, with sedate, deliberate mind and formed design, unlawfully kills another. (7) When an unlawful killing is established, the condition of the mind of the party killing, at the time, just before and just after the killing, is an important consideration in determining the grade of the homicide; and, in determining whether murder has been committed with express malice or not, the important questions for a jury to consider are: Do the facts and circumstances in the case at the time of the killing, and before and after that time, having connection with or relation to it, furnish satisfactory evidence of a sedate and deliberate mind, on the part of the person killing, at the time he does the act? And do these facts and circumstances show a formed design to take the life of the person slain, or to inflict on him some serious bodily harm, which, in its necessary and probable consequences, may result in his death? Or do the facts and circumstances in the case show such a general reckless disregard of human life as necessarily includes the formed design against the life of the person slain? If they do, the killing, if it amounts to murder, will be upon express malice. (8) In order to warrant a verdict of murder in the first degree, malice must be shown by the evidence to have existed; that is, the jury must be satisfied from the evidence, beyond a reasonable doubt, that the killing was a *Page 451 consummation of a previously formed design to take the life of the person killed, and that the design to kill was formed deliberately with a sedate mind — that is, at the time when the mind of the person killing was self-possessed and capable of contemplating the consequences of the act proposed to be done. There is, however, no definite space of time necessary to intervene between the formed design to kill and the actual killing. A single moment of time may be sufficient. All that is required is that the mind be cool and deliberate in forming its purpose, and that the design to kill is formed while the mind is in such calm and sedate condition. (9) When the evidence, satisfies the mind of the jury, beyond a reasonable doubt, that, the killing was the result of a previously formed design by the defendant to kill deceased, and that the design was formed when the mind was calm and sedate, and capable of contemplating the consequences of the act proposed to be done by him, and such killing is further shown to have been unlawful and done with malice, then the homicide is murder in the first degree, and your verdict should be rendered accordingly. (10) To warrant a conviction of murder in the first degree, the jury must be satisfied by the evidence, beyond a reasonable doubt, that the defendant, before the act, deliberately formed the design with a calm and sedate mind to kill the deceased; that he selected and used the weapon or instrument or means reasonably sufficient to accomplish the death by the mode and manner of its use. The act must not result from a mere sudden, rash, and immediate design, springing from an inconsiderate impulse, passion, or excitement, however unjustifiable and unwarrantable it may be. (11) Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Eugene Burt, in Travis County, State of Texas, on or about July 24, 1896, as charged in the indictment, unlawfully, with malice aforethought with a sedate and deliberate mind and formed design to kill, did kill Anna M. Burt, by then and there striking, beating, and wounding the said Anna M. Burt upon her head and face with a hatchet and some heavy instrument, thereby fracturing the skull and the bones of the face of said Anna M. Burt, and by then and there tying tightly around the throat, and neck of said Anna M. Burt a handkerchief, thereby strangling and suffocating the said Anna M. Burt, and by then and there wrapping around the head and body of said Anna M. Burt a blanket, and securely tying same thereon with rope, and then and there throwing said Anna M. Burt, so wrapped and tied, in a cistern partially filled with water, sufficient to submerge the body of said Anna M. Burt; or if the said defendant did, with malice aforethought, so kill said Anna M. Burt, by either one or by all of the means above enumerated — you will find the defendant guilty of murder in the first degree, and so state in your verdict, and fix his punishment at death or confinement in the State penitentiary for life, as you may determine and state in your verdict."
Counsel for appellant objects to that portion of the charge which reads as follows: "If the said defendant did, with malice aforethought, so kill said Anna M. Burt, you will find the defendant guilty of murder in the first degree." It is insisted that this charge authorized a verdict of murder *Page 452 in the first degree, upon a state of case which demanded a verdict of murder in the second degree. We do not so understand the charge. It has reference directly to the preceding portions of the charge, which in a remarkably clear and explicit manner define murder in the first degree. No juror with the degree of intelligence, under the charge given in this case, could conclude that the verdict of murder in the first degree could be rendered unless it was established beyond a reasonable doubt by the evidence that the accused, with a calm mind and formed design, deliberately killed his wife. This portion of the charge has reference to the charge preceding it, and, when it says "so kill," it means, and of necessity means, in the manner and condition of mind as set forth, in the preceding portions of the charge. However, there was no objection to the charge; and, this being the case, the rule is that it must have been calculated to injure the rights of the accused. This proposition is supported by any number of cases, the leading case being Bishop v. State, 43 Tex. 390. Tested by this rule, was appellant injured? As we said in the original opinion, there is no murder in the second degree in this case. The learned counsel of appellant, in argument, admitted that, if the accused was sane, he was guilty of murder upon express malice. If this be true — and it is absolutely true — then no possible injury could have resulted from this charge, if the appellant's construction be correct.
It is insisted by counsel for appellant that, if we affirm this judgment, it will be contrary to law, and contrary to the previous decisions of this court. If contrary to law, this judgment ought not to be affirmed. If contrary to previous decisions, and those decisions are wrong, being correct in all other respects, the judgment ought to be affirmed. It is not contended by counsel that a change of opinion has wrought a legal injury to appellant, in misleading him so as to deprive him of a legal defense. Nothing of this sort is intimated. We have discussed the cases referred to by appellant in which he insists that we have laid down a different rule in regard to the testimony of an expert. We have shown that no case contains the question here raised. We have shown that in the Webb, Leache, and Williams Cases, supra, the observations of the court were mere dicta. But concede, for the argument, that this court has changed its opinion. (which is not the case); if we are correct now, the appellant has no right to complain, he having been misled in no manner calculated to deprive him of a legal defense. But, as we have before observed, the question in regard to the manner of obtaining the opinion of an expert has never been presented to this court in the shape presented in this case. There has been no change of opinion, but there has been dicta, which is not supported by the authorities. We have given this record a most careful examination, in the light of the consequences of the verdict, and are thoroughly aware of the fate pending over the appellant, and would not hesitate to reverse the judgment if we thought appellant had been deprived of a legal right; but we have found nothing in the record tending remotely to show that appellant has been deprived of a legal right. The evidence is amply sufficient, in fact, conclusive of the guilt of the accused; *Page 453 the verdict of the jury is supported beyond all question by the evidence; and we have found nothing in the record authorizing this court to reverse the judgment.
The motion for rehearing filed by appellant is overruled, and the judgment affirmed.
Motion overruled and judgment affirmed.