ON MOTION FOR REHEARING.
BEAUCHAMP, Judge.In his motion for a rehearing appellant earnestly contends that we erred in the original dispostion of this case in this, that we held that the opinion expressed by Dr. Dwyer relative to the sanity of appellant was admissible notwithstanding it was based partly on his examination of appellant and partly on hearsay of what he had been told in the district attorney’s office and, therefore, our holding in this case is in conflict with the holding of this court in the case of Williams v. State, 37 Tex. Cr. R. 348, 39 S. W. 687. We did not hold that it would be permissible for a psychiatrist to express an opinion relative to the sanity or insanity of a person based upon his examination of such person for a short time and from hearsay. We did not intend to convey such an idea, nor do we wish to be so understood. What we did hold, and intended to hold, was that if that part of the state’s *397testimony is eliminated from the record, there is still sufficient evidence before the court to raise the issue of his sanity because appellant recalled the witness, Dr. Dwyer, and propounded hypothetical questions to him based on facts before the court, to which the witness replied that appellant was a sex pervert and had an abnormal mind; yet, a sex pervert with an abnormal mind is not insane to the extent that he does not know the right or the wrong of the particular act he is performing. In the eyes of the law, a person who has sufficient mental capacity to be able to distinguish between what is right and what is wrong is responsible for his misdeeds.
Appellant’s mother testified that he was an abnormal person; that he acted peculiarly at times; that at times he believed someone was after him and he would lock all the doors and windows to his room, yet he knew what was right and what was wrong unless he was drinking; that on the day of the alleged offense he was drinking. No other evidence touching the question of his sanity or insanity was introduced on the trial. Thus it will be noted that whether or not appellant, although abnormal, had sufficient capacity to distinguish between what is right and what is wrong was a question of fact for the determination of the court, since he had waived a trial by jury; and the court’s decision of the issue is binding on this court as much so as if it had been submitted to and decided by a jury. We do not think that our original opinion overrules the opinion delivered by this court in the case of Williams v. State, supra, or that it is in conflict therewith.
Dr. Dwyer’s first statement relative to appellant’s sanity related to a personal examination of appellant prior to the placing of any testimony on the stand and related mainly to appellant’s ability to rationally prepare a defense to any charge lodged against him. It was made known to the doctor that appellant had previously been adjudged insane, and after being called by the district attorney’s office and requested to make an examination of the appellant, he knew at such time that he had been confined in a mental institution. This knowledge was doubtless hearsay, but was merely preliminary to the examination and certainly could not have unfavorably affected such examination. In considering such preliminary examination, we would have to go afield to say that such a conversation with the district attorney contained any hearsay matters such as are found proven in the Williams case, supra.
After the question of the ability to rationally conduct a defense was disposed of, the state offered its testimony, and ap*398pellant’s attorney introduced the commitments relative to appellant’s unsound mind, dated October 21, 1927, in Harris County, Texas, whereupon appellant’s mother testified as is shown in the original opinion. Thereafter, Dr. Dwyer was called to the stand and interrogated by appellant’s attorney, who propounded to the witness a hypothetical question based on the history of this case, and of course, all hearsay. The doctor answered that such described person was mentally ill, a sex pervert, but not necessarily an insane person; that he would diagnose such person abnormal, but not necessarily insane. A sex pervert is not normal, but he is not insane.
In the Williams case, supra, the expert was not only testifying from a hypothetical question, but also from his having heard all the testimony of a previous trial of that same case, also from having read the testimony as published in the Dallas News of the former trial, and also from having heard a portion only of the testimony in the trial wherein he was then testifying. In that case, we held that the witness was testifying relative to hearsay testimony not included in the hypothetical question, which went far beyond the bounds of a hypothetical question, and was based upon hearsay to a large extent as well as knowledge of the witness as to the proven facts. This present decision does no violence to such a doctrine.
The motion will be overruled.