It is shown by a bill of exceptions that on the trial below, the appellant, under the plea of not guilty, attempted to prove that at the time of the alleged perpetration of the crime for which he was then being tried he was insane, or, as expressed by the witness, crazy, or not sound in mind; and that after a witness had been examined on the subject, and as to his means of information, the testimony, on motion of the district attorney, was by the court excluded from the jury, on the ground, as stated in the bill of exceptions, “ that the witness was not sufficiently acquainted with the habits and character of the accused to give an intelligent opinion; and, also, because the witness could not state any facts upon which his opinion was based, but only stated conclusions.”
We are of opinion that it was error to exclude this evidence from the jury. Instead of pursuing this course, the *329testimony should have been admitted, to be considered by and passed upon by the jury, under a proper instruction by the court.
It is provided by the Penal Code (art. 41) that no act done in a state of insanity can be punished as an offence. Pasc. Dig., art. 1643. And by the Code of Criminal Procedure (art. 497) it is provided that, under the plea of “ not guilty,” evidence to establish the insanity of the defendant may be introduced. This being a recognized matter of defence, whatever of evidence was offered on the question of insanity should have gone to the jury under the plea of “ not guilty,” together with the other facts which tended to acquit him of the accusation. Pasc. Dig., art. 2965.
The jury are the exclusive judges of the facts in every criminal case. Code Cr. Proc., art. 593. It is within the legitimate scope of the power of the judge to decide whether testimony offered is competent, and therefore admissible,, or not; but if the testimony be admissible under the law and the pleadings, its effect upon the issue, together with its-sufficiency, in order to establish the proposition for which it is offered, is properly for the consideration of the jury,, and not the court.
Whilst the general rule is that witnesses must state facts, and not conclusions merely, it is well settled that on the question of insanity the general rule does not apply. On the contrary, it is now well settled in Texas, and in most of the other States of the United States, that on this question even non-professional witnesses may not only state facts tending to prove insanity, but may also express their opinions and conclusions upon the facts to which they testify and the courts are not permitted to even discuss the facts in the charge to the jury. Code Cr. Proc. 595.
In Thomas v. The State, 40 Texas, 60, the court below refused to permit the witnesses to state to the jury their opinions of the defendant’s mental capacity at the date-*330•of the alleged offence, and the witnesses were asked to state if they were acquainted with the mental status of the defendant, and their opportunity for such acquaintance. The ■court below ruled that the witnesses might state the facts and circumstances upon which their opinions were based, Rut not their opinions or belief; and on this subject the Supreme Court held as follows :
“ We think the witnesses should be allowed to give their •opinions, together with the facts on which their opinions were based, when it appears that their acquaintance with the party will enable them to form correct opinions of his mental condition.” The learned judge, after discussing at some length the exceptions to the general rules of evidence, and the qualifications of those general rules, and giving ■examples of the qualifications, proceeds as follows: “ The analogy in the investigation of these questions, and other •questions, when direct evidence is not attainable, has been applied to inquiries respecting the condition of a party as sane or insane, and the opinions of non-professional witnesses, together with the facts on which their opinions are founded, have been admitted in evidence.” See the case, .and the authorities cited. In the case of Thomas, it was also held that the opinion was not in conflict with Gherke v. The State, 13 Texas, 568.
In a late-case (Holcomb v. The State, 41 Texas, 125) the proposition decided and the conclusions arrived at appear from the following extract from the opinion of the Court : -“ The court refused to permit the witnesses to testify to conduct of the defendant tending to show his mental deficiency, and who, for the length of time they had known the defendant, would appear to have had good opportunity of forming .an opinion, to give their conclusions or opinions as to his mental soundness. In this we think there was error. The law is believed to be well settled that non-professional witnesses should be allowed to state their opinions as to the *331sanity of a party, as the result of their observations, accompanied with a statement of the facts observed; ’ ’ citing 1 Greenl. on Ev., sec. 440, and Bishop’s Cr. Proc. 676-680. See also Stevens v. The State, 31 Blackf. 486, and authorities there cited ; Guaguando v. The State, 25 Texas, 519.
It may be that, from some expressions to be found in the cases of Thomas and Holcomb, the court below might have understood that, on the question of sanity or insanity, it was within the province of the court to determine, %pon the extent of the acquaintance and the sufficiency of the means of information, as to the facts stated upon which the conclusions of the witness were based, and to determine upon the admissibility of the evidence, and to admit it or exclude it, according as the facts should appear, as developed on the examination of the witness. If so, we are of the opinion that the conclusion was erroneous. The question of insanity being a recognized defence, whatever of legitimate evidence was offered, it should have gone to the jury.
The main question determined by these cases, as we understand them, is that, on the question of the sanity or insanity of the party accused, not only experts, but nonprofessional witnesses, may state their conclusions, from the facts within their knowledge, as to the mental condition of the party; and that whether the means of information, or facts proved, or the conclusions drawn by the witness are of the satisfactory character required to base a finding upon, or not, is for the consideration of the jury, under proper instructions.
We are of opinion the court erred in excluding the testimony. And in view of the fact that the testimony, as shown by the record, was almost entirely circumstantial, the error was of sufficient materiality to warrant the reversal of the judgment.
We are of opinion that the objections urged against the sufficiency of the indictment are not well taken. They *332amount to about this: that an unimportant omission or mistake in an immaterial part of the indictment was made,, either by the writer, or by the clerk in copying it into the transcript. The material parts of the indictment are deemed to be sufficient, and the court did not err in overruling the motion in arrest of judgment. Other errors are assigned which have not been considered, for the reasons that some of them are deemed of little moment, and others are not likely to'arise on a subsequent trial. For the error above pointed out, the judgment must be reversed and the cause-remanded.
Reversed and remanded.