Whilst a continuance, even though the application be in every respect in strict conformity with the requisites of the statute, is no longer a matter of right, still the truth as well as merit of the matters or ground set forth “is addressed to the sound discretion of the court.” (Code Crim. Proc., art. 560, subdiv. 6.) The action of the court should not be arbitrary in the first instance, but the result of “sound discretion.” (Miller v. The State, ante, p. 232.)
Especially should this sound discretion be exercised when, after having overruled the application in the first instance, the court is called a second time to consider its materiality and truth in connection with all the evidence in the case, on the motion for a new trial. It rarely happens that the want of truth is positively or clearly, or even probably, apparent when first presented, and, if overruled upon that ground in the first instance, it cannot be stated as a reason that the other evidence shows it to be untrue; because the other evidence could not have been before the court when it acted upon the motion. That the evidence subsequently adduced shows or renders it probable that the proposed testimony is untrue can only be determined, in a majority of cases, on the motion for a now trial; and such a reason in such cases might be given by the court, in explanation to a bill of exceptions, for overruling the motion for new trial, in so far as the application for continuance was involved in said motion. Ordinarily, then, the truth of the proposed evidence is matter of sound discretion on the motion for a new trial. Still, in all cases the court, as far as practicable and with the lights before it, must, even as to the truth, exercise a sound- as contradistinguished from a mere arbitrary discretion, in passing upon the application in the first instance.
Kleptomania was the only defense relied upon by the defendant. That kleptomania is' a species of insanity which, if clearly established, will render its subject morally irresponsible for the crime of *294theft is, it seems, now well settled. (1 Whart. & Stille’s Med. Jur. (3d ed.), § 590; Looney v. The State, 10 Texas Ct. App., 520.)
And “whatever may have been the rules of evidence heretofore with regard to the 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.” (Webb v. The State, 5 Texas Ct. App., 596; citing Holcomb v. The State, 41 Texas, 125, and McClackey v. The State, 5 Texas Ct. App., 320.) In Thomas v. The State, 40 Texas, 60, it is said: “We think the witnesses should be allowed to give their opinions, together with the facts on which their opinions were based, where it appears that their acquaintance with the party will enable them to form correct opinions of his mental condition.” (See, also, Campbell v. The State, 10 Texas Ct. App., 560.)
Kleptomania ordinarily is an abnormal condition which is produced by or results from disease, and “ the abnormal tendency continues after the disease to all external appearance has ceased. This continuance shows, however, that mental disease, though latent, still exists.” Kleptomania, it is said, will be found accompanied more or less by other incipient symptoms of derangement, such as a general alteration in the accustomed mode of feeling, thinking, occupation and life of the individual, a disposition to scold, dispute and quarrel, to drink, and to wander about busily doing nothing, and the bodily signs of excitement, restlessness, want of sleep,” etc. (1 Whart. & Stille’s Med. Jur., § 590; Looney v. The State, 10 Texas Ct. App., 520.)
Five witnesses for defendant testified positively to many facts and circumstances tending most strongly to show, by the acts and conduct of defendant alter his recovery from a serious and protracted spell of sickness, that he had become a confirmed kleptomaniac. Most of the symptoms of the disease, as above stated, were testified to in his case, and his petty thefts and propensity to steal were notorious amongst those who knew and associated with him. Some of these witnesses testified that the absent witness White, for whom the continuance was sought, was more particularly intimate with, and had had better means of knowing his condition, and was better able to give an opinion as to his mental condition, than any one else. This witness White had been recognized at the time of the trial as a witness for defendant, and diligence is fully shown so far as he was concerned. Ilis proposed testimony, as set out in the ap*295plication for continuance, is not only material, but probably true in the light of the other evidence. It cannot be said that the evidence was but cumulative. In such cases, or rather in this character of defense, the greater the number of witnesses testifying to the insanity of the accused, the more likely is the fact to become conclusively established. That the evidence would be but cumulative is no sufficient reason for its exclusion in such a case, nor is it a good ground for overruling an application for continuance otherwise sufficient. Under the facts in this case we are of opinion the court should have granted the continuance in the first instance, and we are clearly of opinion that the court should have granted the new trial, upon account of the proposed testimony of the absent witness, if for no other reason.
Several other supposed errors are complained of. Whether errors or not, their discussion is unnecessary, as they are of a character not likely to arise upon another trial. As to the charge of the court, the law was fairly and ably presented, and sufficiently covered the subject-matter of the special requested instructions.
For error in the ruling of the court with regard to the application for continuance, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded»
[Opinion delivered May 23, 1885.]