ON MOTION FOR REHEARING.
GRAVES, Judge.Appellant insists that we erred in holding the facts sufficient' to support the conviction.
*322Early on the morning of Sunday, May 25, 1947, appellant, with a high-powered rifle in his car, drove to what is known as the “Stahl lane” in Comal County, which led to the York ranch, where Willard York and his family resided. He parked his car in the lane or road and waited for some evident purpose. Shortly thereafter, Willard York, accompanied by his wife, Gertrude York, his mother, Mary York, his thirteen-year old daughter, Ann York, and his nine-year old son, John York, drove up in his car and stopped as appellant’s car had the roadway blocked. Appellant got out of his car with the rifle in his hand, and without saying anything or replying to the pleading of Gertrude York, who said, “Don’t shoot, Lloyd, don’t shoot,” he opened fire on Willard York, killing him. Then moving the gun, he killed Gertrude York, reloaded his rifle and killed John York, who fell close by the side of the right door of the car. He then killed sixty-seven-year old Mary York, the mother of Willard York, who had gotten out of and was standing some twenty feet back of the car. He then fired at Ann York, who was struck by a bullet in her leg as she fled down the road, but was not killed. A more brutal or horrible crime could hardly be conceived.
As mitigating the crime, it was shown that appellant entrusted to York, his friend and investment banker, his life savings and inheritance for investment, and that about two months prior to the killing he learned that York had used his funds and lost them, as a result of which he filed a suit against York claiming improper use of the funds. York then filed a petition in bankruptcy in which he listed appellant as an unsecured creditor for $80,279.67, thus furnishing a motive for this multiple killing.
Appellant’s sole and only defense was that of insanity at the time of the commission of the crime and at the time of the trial. As supporting that defense, appellant points to the facts of the killing which, it is insisted, of and within themselves evidence the act of an insane person.
Doctors, patients, and nurses, as well as nonexpert witnesses who had been associated with and knew appellant, testified that he was insane, as did also eminent psychiatrists and specialists in mental diseases, expressing the opinion that appellant was unable to distinguish between the right and wrong of his acts. In addition, it was shown that appellant’s .mother was insane for five years before her death. Appellant’s life history was shown, exhibiting his gradual mental decline from the normal to the abnormal and finally to insanity.
*323There is no question but that the facts as a whole presented a very strong defense of insanity. To combat that defense, the state relied alone upon the testimony of nonexpert witnesses as will be more fully shown by a discussion hereafter of certain bills of exception. No doctors or medical experts testified that appellant was sane.
If we understand appellant’s contention that the facts are insufficient to support the conviction, it is that the insanity defense was so overwhelmingly shown that this court should not permit the conviction to stand.
Mere mental deficiency or derangement, though it may constitute a form of insanity known to and recognized by medical science, does not excuse one for crime. The insanity that excuses for crime is that known as the “right and wrong test,” that is, the capacity of the accused to distinguish right from wrong in respect to the act charged as a crime at the time óf its commission and the probable consequences of his act. If a person has sufficient mental capacity to understand the nature of the particular act or acts constituting the crime and to know whether they are right or wrong, he is responsible if he commits such act or acts. If he does not possess that degree of capacity of mentality, he is not responsible. The rule stated is the generally accepted doctrine, not only in this state, but in all other jurisdictions where a different rule is not applied by statute.
Insanity that excuses for crime is a fact question which must of necessity be determined by the jury under proper instructions from the court. It was the sole province of the jury to believe or not believe the appellant’s defensive testimony. In the exercise of that discretion, the jury chose not to believe that defense, but rather to accept the theory of the state that appellant was sane. This court is without power to say that they were not authorized to do so. The facts are sufficient to support the conviction.
Appellant urges that the strong insanity defense presented becomes of material importance in considering certain of his bills of exception complaining of the receipt in evidence of the testimony of certain nonexpert witnesses attesting the appellant’s sanity. These bills will be considered together.
Bill of Exception No. 16 reflects the following: In the development of its case in chief, the state proved by the witness Fest, Lieutenant of Police in San Antonio, that at about 11:00 *324or 11:30 o’clock in the morning of May 25, 1947, which would be about three hours after the killing, appellant appeared at the police headquarters and asked Fest, “Who is in charge of the office?” Upon Fest’s replying that he was in charge, appellant stated, “I think I killed a man. * * * Yes, I think I killed a man by the name of York.” Thereupon Fest asked appellant to sit down, which he did. Fest then called to Lieutenant Hester, who came to the office and took charge of appellant. Upon rebuttal, the witness Fest was recalled by the state, and after again detailing the foregoing facts, he was permitted to testify over objection as follows:
“From my observations of this defendant at the time he was in my office on May 25, 1947, the conversation I had with him, his appearance as I have described in my former testimony, his demeanor and his behavior on that occasion, it is my opinion that Lloyd I. Ross was sane on the morning of May 25, 1947, the date of the commission of the offense with which he is charged, the murder of Gertrude York.”
The witness fixed the length of time that appellant was in his office as being ten or fifteen minutes. The witness farther testified that he based the opinion expressed by him “solely on the fact that the man came to my office voluntarily, made one statement, I asked him one question, and then he took a seat over in a corner.” The witness had not known appellant prior to this time.
By Bill of Exception No. 18 the following appears: Lieutenant Fest turned appellant over to Hester, the lieutenant of the San Antonio Police Department in charge of homicide, who went with appellant to his car parked near the police station and there Hester found in the car the high-powered rifle which was loaded at that time. There was also found in the car an ammunition box containing one loaded shell. Appellant was placed in jail and later turned over to the sheriff of Comal County. Hester saw appellant after he was in jail. The period of time which Hester fixed as covering his opportunity for observation of the appellant was between “45 minutes and an hour approximately.” Upon this predicate Hester testified:
“During the time that Dr. Ross was in my custody, all the time that I observed him, he did not at any time do anything other than conduct himself in a normal way. To me his conduct was normal.”
This witness had not known appellant prior to this time.
*325By Bill of Exception No. 25 it appears that Herrera, the city jailer, checked appellant into the jail and asked him the usual questions incident thereto, and then fingerprinted him. During that time appellant asked permission to use the telephone and call an attorney. Herrera looked up the telephone number and dialed it for him as appellant could not see well without his glasses. Herrera said that appellant was in his presence about forty-five minutes or an hour. Based upon that observation, Herrera testified that in his opinion appellant was sane at that time. He had not known appellant prior to this time.
To the testimony of each of those witnesses who attested to appellant’s sanity, the objection was urged that a sufficient predicate had not been first laid in that there was not shown close or intimate relations or period of time sufficient to authorize the witness to express the opinion that appellant was sane.
Every person is presumed to be sane until the contrary is shown. It is by reason of this presumption that "the law casts upon one relying on insanity as a defense to crime the burden of establishing such fact by a preponderance of the testimony. See Craven v. State, 93 Tex. Cr. R. 328, 247 S. W. 515; Ex parte McKenzie, 116 Tex. Cr. R. 144, 28 S. W. (2d) 133. As the law presumes every person to be sane, it is only by a departure from the normal that the sanity of a person is called in question. So, when witnesses attest to observing nothing in the appearance, acts, conduct, or words of a person that would suggest or lead to the belief that such person was abnormal or of unsound mind, the legal presumption follows that such a person is sane. Therefore, under the law, it may be said that the absence of the abnormal attests of and within itself the fact of sanity. The question as to the admission of nonexpert testimony as to the sanity of the accused has often been before the courts.
In Shields v. State, 104 Tex. Cr. R. 253, 283 S. W. 844, the rule is stated as follows:
“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 abnormal.”
*326Therefore, the test in reviewing the action of the trial court in admitting nonexpert testimony of sanity appears to turn upon whether “there appears to have been so little knowledge, opportunity, etc., shown to form a conclusion” in regard to the question. The shortness of time in such observation would usually be a matter relating to the weight to be given to such testimony rather than affecting its admissibility. The rule stated has been consistently followed. See Langhorn v. State, 105 Tex. Cr. R. 289 S. W. 57; Upton v. State, 20 S. W. (2d) 794; Moroney v. State, 133 Tex. Cr. R. 579, 112 S. W. (2d) 742; McKee v. State, 118 Tex. Cr. R. 479, 42 S. W. (2d) 77; Newchurch v. State, 135 Tex. Cr. R. 619, 121 S. W. (2d) 998; Henderson v. State, 130 Tex. Cr. R. 409, 94 S. W. (2d) 467.
Appellant presses upon us his contention that the testimony of the witnesses named, and especially that of Fest and Herrera, comes within the rule stated; that is, that there was not shown sufficient knowledge or opportunity for observation to authorize them to say that appellant was sane. In keeping with this contention, appellant relies upon the case of Winn v. State, 136 Tex. Cr. R. 513, 126 S. W. (2d) 481.
We are not in accord with the statement that the holding in the Winn case, supra, lays down the doctrine that an observation of five minutes’ duration is too short a time to allow a witness to testify in regard to his conclusion as to one’s sanity or insanity. The Winn case again asserts the doctrine as laid down in the case of Shields v. State, 104 Tex. Cr. R. 253, 283 S. W. 844, and is quoted in Malone v. State, 115 Tex. Cr. R. 94, 30 S. W. (2d) 486, as follows:
“In this connection, however, we may say that it being manifestly impossible for this court to lay down any hard and fast rules 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 have 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.”
When all the cases touching the receipt in evidence of the testimony of nonexperts that the accused is sane are viewed as an overall picture, the conclusion appears to be inevitable that each case must be determined upon the facts there presented and that no fixed rule of acquaintance, time, or opportunity for observation may be established, and if the Winn case *327is susceptible of such interpretation, to that extent the same is overruled.
Bills of Exception Nos. 11 and 13 complain because the non-expert witnesses, Aronstein and Jordan, were not permitted to express the opinion that appellant was insane. Appellant argues with much emphasis that if the state was entitled to establish the sanity of appellant by nonexpert witnesses, then he was entitled to prove his insanity by nonexpert witnesses.
It must be remembered that a difference exists in the predicate authorizing a nonexpert witness to testify as to the sanity of the accused and that of one testifying as to insanity. Non-expert witnesses testifying to the insanity of the accused must state the facts upon which that conclusion is based so that the jury may have the benefit of those facts in weighing the testimony of the witnesses. See 24 Tex. Jur. p. 430, sec. 45; Walthall v. State, 144 Tex. Cr. R. 585, 165 S. W. (2d) 184; also Newchurch v. State, supra.
Nonexpert witnesses are confined to their opinions only at the time of their observations of the accused person and cannot be allowed to project their opinions as to the mental condition of such accused at a future time. It is noted by us that although the witness Aronstein, a nonexpert, testified relative to certain conditions and changes in appellant on Wednesday evening, May 21, 1947, four days prior to this killing, yet nowhere therein was he questioned relative to appellant’s insanity on such Wednesday. He was asked the question as to his opinion of appellant’s mental condition on Sunday, May 25, 1947, the day Mrs. York was killed. A nonexpert insanity wdtness cannot be allowed to give his opinion on a question of insanity at a future date. To thus allow would place him in the category of an expert. We do not think that the nonexpert witnesses, Aron-stein and Jordan, should have been allowed the prediction that appellant would have been insane on May 25, 1947, as shown in the question which is the basis of Bills Nos. 11 and 13.
The question propounded to Aronstein was as follows:
“Q. And you have already testified to what he said and what he did at that time. Now, based on that and the prior observations of him and the acquaintance you had with him that you have testified to here, on May the 25th, 1947, the time this offense is alleged to have occurred, what is your opinion as to whether or not Lloyd I. Ross was sane or insane?”
*328The question propounded to Mr. Jordan was as follows:
“Q. Based on what you knew of Dr. Ross for approximately seven years or six years and your observation of him on Wednesday prior to the killing, state whether or not in your opinion, at the time of the homicide, Dr. Ross was sane or insane?”
We do not find any analogy between the lay witnesses of the state being allowed to testify as to appellant’s condition on the day of the killing and soon thereafter, a portion of which took place within practically a few minutes of the killing, and on the same day; the difference being four days prior to the killing and a few minutes thereafter. The witnesses, Aronstein and Jordan, gave the facts upon which they could doubtless have based an opinion as of date the day of their observations, but were not asked to do so. They could not invade the realm of expert testimony as to the future.
The rule seems to be well established that a nonexpert witness may delineate his observation of an accused, his attitude, both mental and physical, as compared to his previous attitude, etc., and draw his general conclusion or opinion therefrom, but nowhere have we been able to find any opinion that would allow such nonexpert to say what such opinion would be at a future time such as at the commission of the offense, if such be at a different time from his observation. To allow such an opinion would invade the realm of experts who, from their knowledge, study, and long experience, could therefrom fix a prognosis of such diseased condition of the mind and prophesy its future probable outcome.
We are not willing to say that it was error to refuse to allow these two nonexpert witnesses to testify that they thought appellant was insane on May 25, 1947, basing such opinion on what they had observed on May 21, 1947.
The enormity of this offense might have some weight in evidencing a troubled mind, nevertheless, there might also be found some significance in the fact that had the shots fired at the little girl taken her life, there would have been no witness left to tell of this Sunday morning tragedy.
In submitting the defense of insanity, the trial court gave the following instruction:
“A safe and reasonable test in all cases would be that whenever it should appear from all the evidence, that at the time of doing the act, the defendant was not of sound mind, but *329was affected with insanity, and such affection was the cause of the act, and that he would not have committed the act but for that affection, he ought to be acquitted, for in such a case the reason would be at the time dethroned, and the power to exercise judgment would be wanting, but this unsoundness of mind or affection of insanity must be of such a degree as to obliterate the sense of right and wrong, depriving the accused of the power of choosing between right and wrong as to the particular act done.”
Specific objection was leveled at that part of the charge which reads, “that at the time of doing the act, the defendant was not of sound mind, but was affected with insanity, and such affection was the cause of the act, and that he would not have committed the act but for that affection,” the objection being that such was not the law and placed a greater burden upon appellant than that required by law in that it required the jury to believe, before acquitting appellant upon the ground of insanity, that his insanity was the cause of his committing the murder and that he would not have committed the murder unless he was insane. The paragraph quoted appears in substance, but not in the exact form, as in the charge set forth in Form No. 930, Willson’s Texas Criminal Forms, (4th Edition). Such form of charge was expressly approved by this court in Shield v. State, 118 Tex. Cr. R. 509, 38 S. W. (2d) 76.
It would be impossible to write on each and every bill of exception presented to us, the last of said bills being numbered 70, the transcript containing 213 pages, and the statement of facts consisting of 317 pages. To write upon each bill would unduly lengthen this opinion.
The complained of remarks of counsel for the state has been considered and without writing on each bill, we do not see any error evidenced therein.
There are other bills which, while not written on, have been considered and no error found therein.
While appellant had many witnesses who testified to his lack of sanity, yet the state countered with others who testified to the contrary; and this court does not feel called upon to say that the verdict of the jury is not supported by the evidence herein. • •
We adhere to the conclusions announced in our original *330opinion, and the motion for a rehearing will therefore be overruled.