Webb v. State

White, P. J.

Before the former appeal in this case defendant had, on motion, obtained a change of venue from Galveston, where the crime was alleged to have been committed, to the County of Brazoria, where the former trial was had. After reversal of the judgment by this court, and when the case was again called for trial in the District Court of Brazoria County, the defendant made another motion for change of venue, and the prosecuting officer (but whether in writing, under the provisions of art. 577 of the Code of Criminal Procedure, does not appear) suggested that the venue be changed to the county of Harris. These motions were both overruled.

Under a plain construction of the statute (Code Cr. Proc., art. 578), but one change of venue can be had upon motion of the defendant. Rothschild v. The State, 7 Texas Ct. App. 519. See also Ex parte Garst, 2 Hawley’s Am. Cr. Rep. 618. To be entitled to consideration, such a motion, coming from the county or district attorney, must be in writing, and in strict conformity with the provisions of art. 577 of the Code of Criminal Procedure, or in conformity with art. 579, where all reasonable means have been used, but unsuccessfully, to procure a jury for the trial. Having overruled these two motions, the district judge, of his own motion, changed the venue to the County of Fort Bend. This was not only no error, but was proper; since he had the authority, and it was his duty to do so, in case he was satisfied that a trial alike fair and impartial to the accused and the State could not from any cause be had in the county where the case was pending. Code Cr. Proc., art. 576 ; Gox et al. v. The State, 8 Texas Ct. App. 254.

Two questions are submitted, by bills of exception, with reference to the expert testimony introduced on the trial. Dr. Stone, a medical expert, who was present and heard the testimony of the other witnesses, was introduced and examined by defendant upon the subject of insanity, the principal defence relied on. On his cross-examination he was asked by the prosecution : “From the testimony of Frank Pool, was the condition of defendant’s mind such that he could not distinguish right from wrong ? ” to which he answered, over objection of defendant, “I do not think it was.” Defendant asked that the answer be withdrawn from the consideration of the jury, which was also refused, the court stating that “ the defendant might ask the doctor’s opinion based upon the entire case, if he saw fit.”

Mr. Wharton, in his work on Criminal Evidence, states the rule thus: “When insanity is set up by a defendant and denied by the prosecution, an expert cannot be asked his opinion as to the evidence in the case as rendered, not only because this puts the expert in the place of the jury, in determining as to the credibility of the facts in evidence, but because the assistance thus afforded is in most trials illusory, experts being usually in conflict, and the duty devolving on the court and jury of supervising the reasoning of experts being one which can rarely be escaped. It has been said, however, that, when the facts are undisputed, the opinion of an expert can be asked as to the conclusions to be drawn from them, and as to the conclusions to he draiun from the testimony of a particular witness, and it is settled that experts of all classes may be asked as to a hypothetical case. But if the facts on which the hypothesis is based fall, the answer falls also. Nor can an expert be asked as to an hypothesis having no foundation in the evidence in the case, or resting in statements made to him by persons out of court.” Whart. Cr. Ev., sect. 418.

In The People v. Thurston we find a number of authorities collated and cited upon this subject, which as there given we reproduce. It is there said: “The general rule laid down by Phillips (1 Ph. on Ev. 290) is: ‘The opinion of medical men is evidence as to the state of a patient whom they have seen. Even in cases where they have not seen the patient, but have heard the symptoms and particulars of his case described by other witnesses at the trial, their opinion on the nature of such symptoms has been properly admitted. Thus, on a question of insanity, medical men have been permitted to form their judgment upon the representations which witnesses upon the trial have given of the conduct, manner, and general appearance exhibited by the patient.’ Upon the discussion which took place in the English House of Lords, in 1843, in consequence of the acquittal of McNaughten for the murder of Mr. Drummond, the following question, amongst others, was propounded' to the judges in relation to the defence of insanity, viz.: ‘ Can a medical man conversant with the disease of insanity, who never saw the prisoner previous to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner’s mind at the commission of the alleged offence? ’ etc. To this question an affirmative answer was given. 47 Eng. Com. Law, 29. The form of the question above given clearly indicates that the medical witness must hear the whole evidence in order to qualify him to give an opinion. So, in Rex v. Serle, 1 Macl. & R. 75, it was held that a medical man who had heard the trial may be asked whether the facts proved show symptoms of insanity. Here, again, the medical witness must have heard the whole of the evidence.”

So, in McNaughten’s Case, 10 Cl. & Fin. 200, it was held that a medical man who has been present in court and heard the evidence may be asked whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapable of distinguishing between right and wrong. Here, again, it is quite apparent that the witness heard the whole of the evidence tending to prove insanity.

So, in Chitty’s Medical Jurisprudence, p. 356, the rule is laid down thus: “ The opinion of medical witnesses who have seen the alleged lunatic is unquestionably admissible, and though they have not seen the lunatic, yet their opinion, after hearing all the evidence, whether or not a person having so acted and evinced such delusions ought to be deemed a lunatic, it seems, is admissible.” The conclusion is thus summed up : “ It would seem to be a just inference from the reason of the rule that the medical witness should be in possession of all those facts tending to prove insanity before he should give an opinion negativing insanity. His opinion on half the facts of the case on which the jury are to decide the cause must be utterly worthless, for it may well be that the same witness, with all the facts before him, would pronounce a very different opinion.” The People v. Thurston, 2 Park. Cr. 134, 135.

In Lake v. The People, 1 Park. Cr. 557, it is said: “Although the opinions of experts are admissible evidence, yet it must be on a given statement of facts; and the facts on which the opinion must be admitted must be all the facts relied upon to establish the theory which it is supposed these facts sustain. Every witness would otherwise come to a different conclusion, and the same witness, testifying on one-half the facts, might give as his opinion that they indicated sanity, while the other half would satisfy him of the prisoner’s madness.”

We think the true rule is as summed up in Sharswood’s note 1 to p. 27 (9th ed.) of Russell on Crimes: “As to medical experts, they may state their opinion upon the whole evidence, if they have heard it all, or upon a hypothetical statement which is in conformity with the whole evidence.” All authorities agree that it is inadmissible to permit an expert to give his opinion upon anything short of the whole evidence in the case, whether he has personally heard it or it is stated to him hypothetically. See also Redfieid’s addition to sect. 5, 3 Greenl. on Ev.

“ The proper mode of eliciting this opinion is, in substance, this : Premising that the expert shall have attended the whole trial, and shall have heard all the testimony as to the facts and circumstances of the case, and that he is not to judge of the credit of the witnesses, or of the truth of the facts testified by others (which are questions for the jury), the proper question is this: ‘If the symptoms and indications testified to by the other witnesses are proved, and if the jury are satisfied of the truth of them, whether in his opinion the party was insane?”’ See the editor’s note to Bovard v. The State, 1 Morris’ Cr. Cas. 630, with authorities.

We find Dr. Stone’s evidence set out in the statement of facts as follows : “ Dr. Stone, for defence (expert), testified that he had heard all the testimony in the case, and said that, not being a juror, he asked the court to excuse him from replying to the question whether the testimony established in his mind the sanity or insanity of the accused at the time he killed Foster; and the court excused him from answering. That he had heard no evidence of the insanity of the accused that could not be explained by other causes, such as indulgence in drink or debauchery. From the evidence of Pool alone, he would not have considered Webb insane. He believed the mind of Webb, at the time the particular offence charged was committed, to have been more or less distracted from some cause, but not to that extent as to relieve him entirely from responsibility.”

The witness had heard all the testimony in the case, and did not believe defendant insane. This opinion, founded upon the whole testimony, must have included, and did include, the evidence of the witness Pool. If it did, then ,how could any injury result to defendant by asking — and that, too, upon cross-examination — the opinion of the witness upon the testimony of Pool alone? We confess we cannot conceive. It would have been otherwise if the expert had not heard and formed his opinion upon the whole case, for in that case the question and answer would have been not only improper, but illegal and inadmissible.

One of the grounds of the motion for new trial was that defendant was misled and taken by surprise at the testimony of Dr. Stone; because, after all the testimony of the witnesses who were examined was heard, defendant’s counsel withdrew with the experts, Dr. Stone amongst them, to ascertain their views on the question of sanity from this evidence, and whether there was occasion to introduce other evidence which they had on the subject, and that, Dr. Stone, with the others, expressing himself satisfied from the evidence adduced that defendant was insane, they did not introduce such other testimony. This ground of the motion is supported by affidavits. The court did not err in overruling this ground of the motion. It is not shown that any application was made to the court for permission to introduce these witnesses after Dr. Stone had testified, which could and would have been permitted by the court in case it had been made to appear that it was necessary to the due administration of justice. Code Cr. Proc., art. 661. Nor is the motion strengthened by the allegation that upon a new trial the defendant will be able to procure other eminent scientific medical experts whose opinions upon the evidence will be different from that of Dr. Stone. Being surprised at the testimony of his own witness, defendant should have invoked the aid of the statute, which provides that “ a continuance may be granted on the application of the State or defendant, after the trial has commenced, when it is made to appear to the satisfaction of the court that, by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had ; or the trial may be postponed to a subsequent day of the term.” Id., art. 568. “ Surprise is not one of the grounds for a new trial in felony cases, all of which grounds are prescribed by the statute.” Id., art. 777 ; Walker v. The State, 7 Texas Ct. App. 262; Higginbotham v. The State, 3 Texas Ct. App. 447.

The most formidable question in the case under consideration grows out of the refusal of the court to give in charge to the jury a special instruction requested, as follows : “That, if the jury entertain a reasonable doubt of the sanity of the accused at the time he shot Charles Foster, they should acquit him.” Upon the issues of sanity and insanity the general charge given followed almost literally the law as enunciated in Webb v. The State, 5 Texas Ct. App. 596, and which was but a reproduction of the doctrine upon that subject as declared in 2 Greenleaf on Evidence, sects. 372, 373. After making an appropriate application of these rules of law to the facts, the jury were further charged: “It is your province to determine, from all the evidence in the case, whether the defendant was sane or insane. Every defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence, beyond any reasonable doubt, and in case of a reasonable doubt as to his guilt he is entitled to be acquitted. Therefore, if you have any reasonable doubt of the guilt of the defendant, under the evidence in the case and the law as herein given you, you will acquit him.” Here it will be seen that the court had charged the reasonable doubt fully with regard to the whole case made by the evidence. Was the defendant entitled to, and was it incumbent upon the court to further charge, in addition, the reasonable doubt specially with regard to the issue of his sanity ?

In this State this question has never heretofore, so far as we are aware, been directly adjudicated. If we look to the English decisions, or the decisions of the other State courts, we find much contrariety of opinion upon the subject: some courts holding that the burden of proving his insanity rests upon the defendant who interposes it, and that he is in duty bound to establish it as an independent fact, beyond all reasonable doubt; others hold that the fact must be established by defendant, but need only be shown by a preponderance of evidence, as in civil cases, sufficient to overcome the presumption of sanity, and not necessarily to the exclusion of the reasonable doubt; whilst others again — and these may be classed as of the modern, or progressive school — insist that, inasmuch as the burden of proof never shifts from the State in any criminal case, but rests upon her to establish every element necessary to constitute the crime alleged, and inasmuch as the question of a defendant’s sanity enters into and tends to controvert the most important constituent of crime,—to wit, the criminal intent,— that therefore the State must affirmatively establish the fact of sanity beyond a reasonable doubt. Those curious to investigate these different theories, and the grounds upon which they rest, will find the authorities collated and discussed in Bovard v. The State, and the editor’s notes to the case (1 Morris’ Cr. Cas. 818), and in 2 Bishop’s Criminal Procedure (3d ed.), sects. 669 to 673, inclusive. Whart. Cr. Ev. (8th ed.), sect. 335 et seq.

Our own State, in the plenitude of her mercy and humanity, following the generous dictates of all human and divine law, declares that “ no act done in a state of insanity can be punished as an offence ’ ’ (Penal Code, art. 39), and in the definition of murder provides that it must be the act of one “ of sound memory and discretion.” These two principles are, however, subordinate to another, which is a postulate in estimating all human action from a legal stand-point, and that is that every man is presumed to be sane until the contrary is made to appear. This presumption of sanity is one of the maxims of the law. To such an extent is it indulged, even in cases of murder, that “ the indictment makes no mention that the accused is of sound mind, even when drawn on a statute which has the words e of sound memory and discretion.’ For, though sanity is essential to crime, it is sufficiently charged in the allegation of the criminal act, being the prima facie condition of mankind.” 2 Bishop’s Cr. Proc. (3d ed.), sect. 669. And so also “ the authorities agree, and properly, that in some way the presumption of sanity attends the proven acts of the prisoner, operating with sufficient force to create against him a prima facie case.” Id., sect. 672. Such a case is more than & prima facie; it is a positive case.

To us it appears needless to dispute as to how or in what manner this presumption is to be rebutted and overcome. It is self-evident that if no issue at all of sanity is raised by the evidence introduced by the State, nor b)r that produced in behalf of the defendant, then the positive case (prima facie, as it is called by Mr. Bishop) established by the State should and will rightfully carry conviction with it by virtue of the presumption. But if, beyond this presumption of sanity,— if beyond the positive, not alone prima facie, case attending the proven acts constituting the crime,—it still devolves upon the State to show affirmatively the existence of sanity beyond- a reasonable doubt, then it seems to us that it necessarily follows that this proof must be made in all cases, irrespective of whether the issue grows out of the evidence or not, and consequently that the virtue of the presumption becomes a delusion, and a prima facie case without this proof an utter impossibility. The folly of such an argument is its own most appropriate answer.

Suppose, however, that the sanity of the defendant does become a question, —whether from the evidence of the State or that adduced by the defendant, — should the State show the sanity or the defendant the insanity beyond a reasonable doubt? Admit, for the sake of the argument, that the duty devolves upon the State ; how is the judge to charge fully the law applicable to the subject? In terse, plain, and comprehensive terms he could not, perhaps, better express it than in the following language, viz.: “ The law presumes every man to be sane until his sanity is established beyond a reasonable doubt.” This, it may be said, is an absurdity. Grant it, and yet the absurdity will rest where it properly belongs, with those maintaining the proposition that the State shall prove sanity beyond a reasonable doubt.

We do not deem it necessary or incumbent upon us to unravel or attempt to answer the misty mazes and the meta-, physical disquisitions indulged in by the opposing theorists about sanity being essential to criminal intent, and criminal intent being essential to punishable crime, nor their equally abstruse and obscure views as to which side has the burden of proof when the sanity of the defendant, from whatever cause, acquires a status in the case. The attempt would be as useless as profitless, in our view of the question. We are free to admit that the defendant is not bound to plead his insanity specially, nor that he may- hot show it under “ a plea of not guilty.” Still, this does not settle it that the burden of proof is either on the State or the defendant. Until the Legislature definitely declares a rule, the question will still, perhaps, remain in doubt as to where the burden of proof rests. We think it is unnecessary that we should determine it. Oftentimes it occurs in law, as in ordinary human transactions, that between opposing theories and opinions there is a middle ground, which, once attained, will lead to safe and satisfactory results. “ In medio tutissimus ibis.” And so, in our opinion, in regard to this question of sanity in criminal cases. Mr. Bishop states this middle ground. He says: “ The doctrine of principle, sustained by a large part of our courts and rapidly becoming general, is that, as the pleadings inform us, insanity is not an issue by itself, to be passed on separately from the other issues, but, like any other matter in rebuttal, it is involved in the plea of not guilty, upon which the burden of proof is on the prosecuting power: the jury to convict or not, according as, on the whole showing, they are satisfied or not, beyond a reasonable doubt, of the defendant’s guilt.” 2 Bishop’s Cr. Proc., sect. 673. And Mr. Wharton says: “At the same time, if the defence goes to negative malice, and malice is an essential part of the case of the prosecution, then, if on the whole evidence there be a reasonable doubt as to malice, there should be an acquittal.” Whart. Cr. Ev., sect. 335.

It is a noticeable fact that those who insist that the doctrine of reasonable doubt applies to the question of sanity, because insanity is an attack upon the integrity of the criminal intent which the State is always bound to show affirmatively, are also forced into the position that it is not a distinct substantive issue upon which the defendant has. the burden of proof. In other words, they claim that it is a part and parcel of the whole case made by the State ; one which she is bound to establish beyond a reasonable doubt, and one which, when she has established it on the whole case beyond a reasonable doubt, is not sufficient, because she has not established it beyond a reasonable doubt when applied to the question of sanity separately and alone. The inconsistency is in giving to a part a prominence sufficient to defeat the whole of which it is but a part, and in insisting that apart shall control the whole, instead of being only considered with and included in it. It will not do to say that the reasonable doubt, independent of the whole ease, applies. and must be given to each and every.element going to make up the corpus of the crime, and, failing to do so, that the charge would be insufficient; because such a rule would lead to unnecessary and perhaps interminable confusion, and in a case of circumstantial evidence, for instance, it would be necessary to charge it with reference to each isolated fact in a chain of facts essential to the existence of the main fact. No one, we suppose, will contend that this is requisite. Speaking of the defence of an alibi, in the case of Walker v. The State, Chief Justice Roberts says : “ It is not a defence at all, in any other sense than as rebutting evidence tending to disprove the fact alleged in the indictment, that Walker killed Butler, the burden of proving which allegation rests on the State throughout the whole trial.” And again: “ The rule of law is that .such evidence of an alibi should only be of such weight as to produce upon the minds of the jury a reasonable doubt of the fact affirmed by the State, that Walker was the man who shot Butler.” 42 Texas, 360. In the case at bar, the evidence of insanity was no defence, save as it tended to rebut or destroy the criminal intent with which Webb shot and killed Foster, and it should only be given such weight as would produce upon the minds of the jury a reasonable doubt, not of Webb’s sanity, but of the fact affirmed by the State, which was that Webb killed Foster with criminal intent, and under circumstances constituting the crime murder.

In a general view of the case, we think that, no matter upon whom the burden rests or how the proof is adduced, the evidence of insanity, to warrant an acquittal, should be sufficiently clear to convince the minds and consciences of the jury ; because the law requires that, “ when the defendant is acquitted upon the ground of insanity, the jury shall so state in their verdict.” Code Cr. Proc., art. 722.

Our conclusion of the whole matter is that the charge of the court was a sufficient exposition of the law of insanity, and that, having fully charged the law of reasonable doubt as to the whole case, the court did not err in refusing the special requested instruction.

We have been unable to see any error in the proceedings had on the trial which requires a reversal of the case, and the judgment is therefore affirmed.

Affirmed.

Hurt, J., dissents upon the proposition that no error was committed in refusing the special instruction, and refers to his view in the case of Levi King v. The State, decided at the present term, post.