It is a wise as well as most humane provision of our law that “ no act done in a state of insanity can be punished as an offence.” Pasc. Dig., art. 1643. With regard to murder, it is specially declared a part of the definition of the' crime that it is the act of “ a person with a sound memory and discretion.”
On the other hand, it is equally as well settled, both in law and in reason, that every man is presumed to be of sane mind until the contrary is shown. 1 Greenl. on Ev., sec. 42. “ In criminal cases, in order to absolve the party from guilt, a higher degree of insanity must be shown than would be sufficient to discharge him from the obligations of his contracts.” Id., sec. 372. “ In all such cases.the jury are to be told that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proved to their satisfaction ; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or, if he did know it, that he did not know he was doing wrong. The mode of putting th’e latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and" wrong; which mode, though rarely, if ever, leading to any mistake with the jury, is not deemed so accurate1 when put generally and in the abstract as when put with reference to the party’s knowledge of right and wrong in respect to the very act with which he is charged.” 2 Greenl. *608on Ev., sec. 373; Carter v. The State, 12 Texas, 500; 1 Whart. Cr. Law, 6th ed., secs. 15, 16.
Mr. Bishop says: “The inquiry is directed to the particular thing done, and not to any other ; because, as we have seen, a man may be responsible for some things while not for others. Of course, also, it has reference to the time of the transaction, not to any other time. The reader, however, should distinguish these questions from questions concerning the proof; for, to ascertain the state of the mind at a particular period, we may inquire into its condition both before and after in relation to a particular subject, its condition as to other subjects.” 1 Bishop’s Cr. Law, 4th ed., sec. 476.
Evidence of the state of the mind of the party both before and after the act done is admissible in determining the question of .sanity. 2 Greenl. on Ev., sec. 371.
Another rule, equally well settled, seems to be that “ if derangement or imbecility be proved or admitted at any particular period, it is presumed to continue until disproved, unless the derangement was accidental, being caused by the violence of a disease, But this presumption is rather matter of fact than law, or, at most, partly of law and partly of fact.” 1 Greenl. on Ev,, sec. 42.
, Whatever may have been the rules of evidence heretofore with regard to the character of proof admissible on the subject of insanity, the doctrine that non-professional witnesses should be allowed to state their opinion as to the sanity of the party, derived from their acquaintance with and observation of his conduct, appearance, and actions, has become too well settled to admit of doubt or controversy at this time. Holcomb v. The State, 41 Texas, 125 ; McClackey v. The State, decided by this court at the Tyler term, 1878, ante, p. 320.
We are aware that in Gehrke v. The State, our Supreme *609Court, following in the wake of the decisions in Massachusetts and New Hampshire, held otherwise. 13 Texas, 568. The subject has, however, of late years been more thoroughly examined and discussed; and in New Hampshire particularly, in the recent case of Hardy v. Merrill, Foster, C. J., of the Circuit Court, in a most elaborate opinion, concurred in by the Supreme Court, reviews the previous decisions and overrules them, which places that court in full accord with the English and American doctrine as it now generally obtains on that subject. 56 N. H. 227. The case of Gehrke v. The State, 13 Texas, 568, has been practically, as we have seen, and will be hereafter considered as overruled on this point.
Now, from what has been stated above, it necessarily follows that there are no definite limits within which the evidence can be restricted on an inquiry of this sort. Nor is the investigation one in which the judge could well say that additional evidence would be but cumulative of like testimony already adduced ; for the greater the number of witnesses who would depose to the opinion that a party was insane, the more likely would the jury, we apprehend, be inclined so to believe and become satisfied of the fact.
In the case at bar, the defence was insanity. An application for continuance was made on account of the absence of six of defendant’s witnesses, all of whom had been duly attached, and were under bond to appear and testify. The facts to which they would depose are fully set out in the application, and it contained the opinions of those witnesses as to the insanity of the defendant, gathered from their associations with him, and their observations of his conduct, language, and appearance for some weeks prior and down to and including the very day of the killing, both before and after the act.
This application was, moreover, in .strict compliance with *610the requirements of the statute. No reason is given by the court for its action in overruling it, and we are left to infer that it was upon the ground that the evidence was deemed immaterial or inadmissible. We do not think so; on the contrary, it appears to us both material, admissible, and pertinent to the issue to be decided ; and its materiality becomes much more apparent when we consider it in connection with the evidence actually adduced for the defendant on the trial. How far these witnesses can be relied upon for the truth, or how far their testimony might have influenced the action of the jury in finding their verdict, it is impossible for us to say. As presented to us, the application for continuance was sufficient, and should have been granted.
In reversing the case, we deem it necessary to refer to certain acts of misconduct (complained of) on the part of the jury and the officers having them in charge, which, to say the least of it, does not comport with our ideas-of the serious solemnity of the duty of those having in charge the life of a fellow-being. The jury were allowed to have and drink several bottles of whiskey, some of which were conveyed to them by the officer having them in charge. Had any one of them become intoxicated to such an extent as to render it probable his verdict was influenced thereby, it would have been the duty of the court below to have granted a new trial. Pasc. Dig., art. 3137, subdiv. 7.
Again, one of the jurors was permitted to make, and did make, a horse-trade with another party, who was not upon the jury. It is true, the officer says it was done in his hearing and presence, and no injury, perhaps, was done the defendant under the circumstances. Still, such things are calculated to throw suspicion upon a verdict; and a verdict in a case involving the momentous issues of life and death should be above suspicion, and command entire confidence. Early v. The State, 1 Texas Ct. App. 248.
*611Because the court below erred in overruling defendant’s application for a continuance in the first instance, and after-wards erred in refusing a new trial, the judgment is reversed and the cause remanded.
Reversed and remanded.