ON APPELLANT’S MOTION FOR REHEARING
GRAVES, Presiding Judge.In her motion the appellant complains generally of the majority opinion herein and reiterates many of the objections that were offered on the trial of this case.
The main question seems to hinge upon the point that the court refused to allow the expert psychologist to testify in reply to a hypothetical question propounded to him by the appellant’s attorney and also refused to allow this witness to remain in the courtroom during the trial of the case, the rule having been invoked.
It is noted that a hypothetical question was propounded to this psychologist which consisted of many pages in the statement of facts, and so far as we are able to ascertain, it covered all the defensive testimony that was offered in this case, except that of the character witnesses.
At the end of this long and complicated question, it is evident from the psychologist that a portion of the question which was submitted to him had come from the defendant’s attorney who was propounding the question. The court overruled the first objection by the state and the witness was allowed to testify in *13substance that at the time the appellant took the life of the deceased she did not have the capacity for knowing the difference between right and wrong at that time. However, upon cross-examination the state elicited from the witness that some of this question propounded to him was not present herein nor offered as defensive matter in this case and that some of his opinion was based upon a part of what the appellant’s attorney had told the expert witness. Whereupon the court inquired of such witness and he admitted that part of his testimony was based upon some things that had been told to him by the appellant’s attorney. Thereupon the court ruled as follows:
“THE COURT: On the basis of the witness’ statement that his answer was based partly on his examination of the defendant and partly on the hypothetical question, the answer of the witness, Gentlemen, is withdrawn from your consideration and you will not consider it for any purpose.”
Again, the witness was asked to erase from his mind, if he could, the facts that had been communicated to him and then what would his answer be after the elimination of such facts and based solely on facts stated in the second hypothetical question. Whereupon the witness was allowed to state that his answer would still have been the same. Thereupon the witness was allowed to testify that this appellant did not know the difference between right and wrong at the time of the commission of the offense, and that statement was permitted to remain with the jury, although the answer to the first hypothetical question (which contained matters outside the record) was not allowed to stand. The ruling of the court at the end of this controversy is as follows:
“Gentlemen, I withdrew from the jury one answer to one question, and that one question and one answer is withdrawn. The rest of the record stands.”
We can see no error in the ruling of the court. Eventually, as to this hypothetical question, we can readily see the reason why, because many things might be told to the expert witness relative to the appellant’s previous conduct which was not in evidence on the trial of the case, and, under the circumstances, one’s attorney could give a series of incidents that may or may not be in evidence, and one should be confined strictly to the record as introduced in the presence of the jury.
Complaint is also made because the court first placed this expert psychologist under the rule and refused to allow him to re*14main within the courtroom during the introduction of the testimony. We confess our inability to see where the court abused his discretion in refusing to allow the witness Tedford to remain within the courtroom during the trial of the case. From the hypothetical question propounded to this witness, it is evident that the appellant’s attorney produced before him all the testimony available in the trial hereof relative to the appellant’s mental capacity at the time of the killing, influenced as it might have been by her life and her long period of time as she wandered in foreign states and engaged herself in many activities therein.
Appellant further vigorously complains because she was not allowed to prove the fact that the appellant’s father was a maniac and confined for many years in the state hospital for the insane and eventually died there. It is worthy of note, that this matter was otherwise proven by direct testimony that the father was insane and died in the insane hospital. Under the circumstances we can see no injury that occurred because of the fact that the certificate of the head of said hospital was not allowed to be produced. The facts themselves were presented from the stand by a witness.
We think that the wisdom of the trial court was evident when he withdrew from the consideration of the jury the first hypothetical question and its answer by the appellant’s witness because it was admitted that some of this testimony came from conversations with the appellant’s attorney at a prior time and was not based upon testimony that appeared on this trial.
It was shown as a motive for the killing that the appellant was the only heir at law of the deceased and is now in possession of monies that were buried upon the premises, as well as some 300 acres of land that belonged to the deceased.
In the motion for new trial appellant claims that there was certain misconduct upon the part of the jury in that they utilized in their deliberations matters other than those offered in the case. The affidavits of all the jurors are present in the record. There are 28 affidavits in number, some of the jurors making two affidavits, relative to their conduct during their deliberations therein. We will not review all of them, but take the affidavit of Mr. Anthony, the foreman of the jury, and the gist of practically all of such statements is that immediately upon their retirement to their room they voted unanimously as to the appellant’s guilt; and that they then voted on the question *15of her insanity, all being unanimous that she was sane. The punishment of the appellant for life was first voted on by nine jurors, and three being for a term of years less than that, but all of them were agreed that this woman should be put away for the rest of her life, and they finally all agreed upon a life sentence. However, there was some desultory discussion relative to whether or not she would be eligible for a pardon and parole after a portion of the sentence had been served. The affidavits all seem to be unanimous that nobody knew whether she would be eligible or not, and that the matter was not further deliberated upon. In view of the affidavits, we do not see therefrom that there was any misconduct upon the part of the members of the jury.
Appellant complains of the misconduct of one of the jurors, namely, C. L. Davenport, who was selected as the first member of the jury. It was ordered by the court at that time that he should be taken to the jury-room and left there, but as he started out of the courtroom he approached his father, who was seated about the middle section of the room near the center aisle, and started to request him to let him have some money to pay for his meals while on the jury. The deputy sheriff noticed the fact that the juror was not following him and he turned back and grasped him by the hand and led him out of the room to the jury-room. Afterwards, however, at the juror’s request, he approached the father, who was still seated in the courtroom, and obtained from him three dollars for the purpose of paying for the juror’s food while serving on the jury and took such money to the juror. This all occurred in the sight of everyone in the courtroom, as well as the district judge and the deputy sheriff. Under these circumstances, we do not think that this was misconduct of any kind upon the part of the juror.
While this case has had its difficulties in this court, as well as in the trial court, we think we have arrived at the proper solution thereof as shown by the opinion of Judge Woodley herein.
The motion for rehearing is therefore overruled.