Appellant was charged with an aggravated assault upon a child; and in a trial before the court, he was found guilty and assessed a penalty of six months in the county jail, and he appeals.
The facts show that an 11-year-old girl was alone in a cleaning and pressing establishment belonging to her mother in Houston; that on or about April 13, 1948, the mother was out delivering clothing and the little girl was using her water colors, painting. Appellant came into this cleaning establishment carrying a raincoat and a pair of trousers. The little girl was seated. He asked her if they could clean the raincoat, and she said, yes, she thought so. She had on shorts at the time. He placed the pants in her lap and pushed his hand on her leg and up towards but not on her privates. She got up and he said, “ ‘You don’t like it, do you?; and I said ‘No.’ ” “I felt embarassed and ashamed; I felt like something dirty and nasty was being done to me. He said, ‘Don’t tell anyone,’ and then he left and I sat back down.” It was near closing time. Appellant returned in a few minutes without the raincoat and said he had another pair of pants; that he would go home and get them, but she told him it was closing time and went to locking up the house. Appellant was still standing there near a closet, and as she started to tell him to leave, she saw that he had his pants down and his privates exposed. She then ran out the back way to the home of a lady friend, who came back with her, but appellant was gone.
Appellant had been convicted of lunacy in the county court *394of Houston County in the year 1927, and such was agreed to by the state and was also shown by a certified copy of a judgment later introduced. Under such conviction, with no showing of a further restoration to sanity, the burden fell upon the state to establish his sanity at the time of the commission of the above delineated facts.
The first witness presented by the state was Dr. Dwyer, the county physician and a psychiatrist, who testified, on direct examination, that he talked with the appellant about 15 or 20 minutes, long enough to determine whether he knew the difference between right and wrong and was in a position to rationally prepare a defense to any charge lodged against him. It was his opinion that appellant was of sound mind at that time. It was developed, on cross-examination of this witness, that he had made no outside or further examination in this matter save that he had talked to the district attorney’s office and they told him something, but what such something was is not shown. Based on such information, the witness discussed these facts with appellant, who answered very intelligently; and the witness then expressed the opinion that appellant was sane at the time of the commission of the alleged offense as well as at the time of this examination.
The above is made the basis of Bill of Exceptions No. 1, mainly complaining of the fact that the expert received some information from the district attorney’s office which, of course, could only be hearsay, and that therefore the opinions expressed by such expert should have been withdrawn from the jury.
In the case of Williams v. State, 37 Tex. Cr. R. 348, 39 S. W. 687, to which we are cited, Judge Henderson, in a long opinion, held that an expert witness cannot give his opinion on the sanity of a person where he has heard only a part of the evidence of one witness, supplemented by having read the testimony published in a newspaper of a former trial thereof. With this holding we have no disagreement. To the same effect is the cited case of Webb v. State, 9 Tex. App. 490, holding that a hypothetical question should embrace all the testimony pertinent to the issue of sanity and not merely to a portion thereof.
This bill of exception is not complete in that it is not shown what statement was made to Dr. Dwyer in the district attorney’s office. Surely the witness was entitled to know with what offense the appellant was charged before he began an examination of him, and surely he knew before he had finished this examination what such offense was because the doctor said that *395appellant talked freely and intelligently about the facts, and the expert’s questions were based on information which he had received and had in his possession. This testimony was not based upon a hypothetical question. It was based upon a direct examination of appellant and directed along lines indicated by information received by the expert as to the facts alleged against the appellant. The objection lodged against this testimony was relative to a hypothetical question being propounded to this witness and his answer thereto being based partially on hearsay testimony, and the above-quoted cases merely support that theory. They are not pertinent to the testimony given by the doctor in his first appearance on the witness stand.
However, the bill in this case, if evidencing any error at all, is rendered nugatory by the recall of Dr. Dwyer by appellant at the close of the testimony herein and the propounding to him of a hypothetical question, which question contained the full testimony produced herein, and his conclusion therefrom, that conclusion being that this complained of conduct evidenced a sex-perverted mind, not an insane condition, but one who knew the difference between the right and wrong of the act. We think the last testimony of the doctor, being brought forth by appellant and being practically the same as that shown in Bill No. 1, cured the error, if any, found in such, and we overrule this bill.
There was no further testimony relative to insanity save the judgment of 1927, and that of appellant’s mother, who testified relative to certain of his peculiarities, his fear of persecution, his drinking and nervousness, the nervousness causing the drinking and the drinking causing the nervousness, and he having been drinking on the day of this charged offense; that at times the appellant did not seem right, but acted differently from a normal person when he was drinking, although she did not know whether or not he knew right from wrong at the date of this alleged offense.
Bill No. 2 is practically the same as Bill No. 1, and it is shown therein that after there had been witnesses heard herein, the appellant called Dr. Dwyer and propounded to him a hypothetical question embodying all the proven facts herein, and finally elicited from the doctor that he regarded such hypothetical question as evidencing the acts of an abnormal person but not that of an insane person; that normal persons are not insane but that not all abnormal persons are insane; that he regarded the acts of this hypothetical described person as showing that he knew the difference between the right and the wrong of *396the alleged acts. The bill further shows that no one testified that appellant was insane at the time of the alleged acts.
Bill No. 3 complains because the trial court refused to allow the little girl to testify on cross-examination that when appellant placed the pair of pants in her lap, “could he not have accidently touched her leg?” The bill does not show what her anticipated answer would have been, and we are left to surmise what she would have said. This matter was but a surmise and also called for a conclusion of the witness. We think the court was correct in not allowing same to be answered. Appellant did not take the stand, and there was no testimony relative to an accident or unintentional mistake. See Woodson v. State, 24 Tex. App. 153, 6 S. W. 184; Branch’s Ann. Tex. P. C., p. 135, sec. 212; Moore v. State, 40 Tex. Cr. R. 438, 50 S. W. 942.
It is also to be noted that there was no testimony introduced relative to appellant’s insanity save the judgment of the Houston County court in 1927.
The remaining Bill No. 4 is superfluous and there is no need therefor in the record. It merely relates to the trial court’s action in overruling the amended motion for a new trial.
We think the state’s testimony is sufficient to overcome the presumption of insanity as established by the judgment of the Houston County Court, and finding no error shown in the record, the judgment is affirmed.