Appellant was convicted of aggravated assault and given twenty-two months in the county jail.
Long prior to the alleged assault appellant had been tried for insanity and found insane in the County Court of Potter County, where this case arose. He was sent 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 while *Page 485 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 contemplation 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 the 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 can not be tried while in a state of insanity. Branch's late Annotated Penal Code, article 39, 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. This precluded the trial of appellant under the circumstances of this record. For this reason this judgment must be reversed. *Page 486
There are some bills of exception reserved to the testimony of non-expert witnesses, which we think well taken. These witnesses do not state sufficient facts on which to base their conclusion. That testimony of non-experts 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 non-experts is sought, a proper predicate should be laid as a prerequisite for their opinion.
The judgment is reversed and the cause remanded.
Reversed and remanded