Appellant was convicted of murder of the second degree for the killing of one J. H. Martin; his punishment being assessed at fourteen years in the penitentiary.
On the trial his defenses, in addition to the plea of not guilty, were, first, resistance to an unlawful arrest by an officer acting without authority of a warrant and when no offense had' been committed by defendant, and, second, insanity.
Amongst the witnesses summoned by defendant were several medical experts whose testimony he proposed! to use on the issue *306of insanity. In placing the witnesses under “the rule,’’which had been invoked preliminary to the introduction of the evidence, .the court required the medical experts also to be placed under the rule with the other witnesses, over the protest of defendant, who insisted upon his right to have them remain in the court room so that they might hear all the testimony adduced on the plea of insanity, and be thereby the better enabled to express an opinion upon that issue.
Where “the rule” is invoked as to witnesses, the the mode and manner of its enforcement is confided largely to the discretion of the court, and the exercise of that discretion will not be revised except in clearest cases of abuse. (Kennedy v. The State, 19 Texas Ct. App., 620; Bond v. The State, 20 Texas Ct. App., 421; Posey’s Texas Crim. Digest, pp. 611, 612.) Mo exception is provided by statute, exempting any particular class of witnesses from the operation of the rule. (Code Crim. Proc., Arts. 662 to 666.) Ordinarily witnesses who are summoned as experts are excepted from the rule, and in cases involving the question of insanity the better and more satisfactory practice would be to allow them to remain in the room and hear the testimony of all the other witnesses, in order that from the whole testimony they may be enabled to determine from the evidence itself the matter upon which their opinion is desired. (Johnson v. The State, 10 Texas Ct. App., 571.) Hr. Wharton states the rule otherwise, and holds that “when insanity is set up by a defendant and denied by the prosecution an expert can not 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 usually being in conflict, and the duty devolving on the court and jury of supervising the reasoning of experts being one which can rarely be escaped.” (Whart. Cr. Evid., sec. 418.) This whole subject was fully discussed by us in Webb’s case, 9 Texas Court of Appeals, 490, and upon a review of the authorities it was said that “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 any thing short of the whole evidence in the case, whether he has personally heard it or it is stated to him hypothetically." (Citing Redfield’s *307addition to sec. 53, Greenl. on Evid.) Where the expert has not heard the evidence, each side has the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence, and; if meagerly presented in the examination on one side, it may be fully presented on the other; the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted. (Coyle v. The Com., 104 Pa. St., 117.)
In the case in hand it is not shown that the hypothetical method of obtaining the opinion of the experts was either defective in not submitting all the facts essential to an intelligent opinion, noi? that the opinions were such as would have been given differently had the evidence' been heard directly by these witnesses, and their conclusions drawn from it, and not from a hypothetical statement of it. We can not perceive that the discretion of the trial judge was abused in the matter to the prejudice of defendant.
Doctor D. E. Wallace, superintendent of the insane asylum at Terrell, Texas, qualified as an expert, and upon tbe hypothetical statements submitted to him, declared as his opinion that the defendant, at the time of the homicide, was suffering from recurrent insanity. He further stated, in effect, that had defendant been consigned as insane to his custody, at no time covered by the facts stated would he have felt authorized to release him as a sane man from the asylum.
Appellant’s counsel asked this witness if he could give any illustrations of recurrent insanity which had come within his own personal experience. This testimony was objected to by the prosecution and excluded by the court. We have had no access to the authority (Lawson on Expert and Opin. Evid.) cited in support of the admissibility of the evidence in the brief of appellant’s counsel. But, even if admissible, in our view of the case its exclusion could not materially affect defendant’s rights, and the ruling would be error without prejudice, which is not reversible error. The general rule seems to be that ££ an expert may be asked by either party as to the reasons on which his opinion is based ; or he may, with leave of the court, give such explanation on his own account. Beyond this he can not go in such examination, though he may be examined in details in order to test his credibility and judgment.” (What. Cr. Evid., 8 ed., sec. 419.)
Many objections are urged to the charge of the court upon the *308question of insanity, and it is urgently insisted that it was error to refuse defendant’s special requested instructions upon the subject. The chief objection is that the court did not instruct the jury to the effect “ that defendant would not be responsible if he was overwhelmed by an impulse which took away his will power and rendered him incapable of controlling his actions.” In effect the complaint is that the court did not sufficiently charge upon moral insanity or irresistible and uncontrollable impulse as excuses for crime. As given, the charge of the court upon this branch is almost a literal copy of an approved charge on insanity given in Willson’s Criminal Forms (Form No. 716, p. 335), and which is taken from the charge given the jury by the Hon. John C. Robertson, presiding in the trial court in the case of King v. The State, reported in 9 Texas Court of Appeals, 515.
Different courts and different law writers have announced different tests of responsibility for crime where insanity was claimed as a defense to its commission. Mr. Greenleaf’s rule is whether the accused was laboring under such 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 that he was doing wrong—the party’s knowledge of right and wrong in respect to the very act with which he is charged. (2 Greenlf. Evid., sec. 373.) And this seems the rule as recognized in Texas in the early case of Carter v. The State, 12 Texas, 500, and also in Webb’s case, 5 Texas Court of Appeals, 596; Williams v. The State, 7 Texas Court of Appeals, 163; and Clark v. The State, 8 Texas Court of Appeals, 350.
Mr. Taylor, in his celebrated work on medical jurisprudence, speaking of moral insanity, says: “The law does not recognize moral insanity as an independent state; hence however perverted the affections, moral feelings or sentiments may be, • a medical jurist must always look for some indications of disturbed reason. Moral insanity is not admitted as a bar to responsibility for civil or criminal acts except in so far as it may be accompanied by intellectual disturbance” (p. 780). From the time of the decision in the noted McHaughten case (10 Cl. and Fin., 200), the English courts have followed the doctrine as the same is announced by Greenleaf, and they have refused to recognize the coexistence of an impulse absolutely irresistible with capacity to distinguish between right and wrong with reference to the act, and in most of the American States the *309test is still a knowledge of right and wrong. In his work on homicide Mr. Wharton says: “ Irresistible impulse is not moral insanity, supposing moral insanity to consist of insanity of the moral system coexisting with mental sanity. Moral insanity, as thus defined, has no support either in psychology or law. Nor is irresistible impulse convertible with passionate propensity, no matter how strong in persons not insane. In other words, the irresistible impulse of the lunatic which confers irresponsibility is essentially distinct from the passion, however violent, of the sane, which does not confer irresponsibility.” (Sec. 574.) A number of most respectable authorities deny that moral insanity has any place in law, and with regard to irresistible impulse they hold, “if it were irresistible the person accused is entitled to be acquitted, because the act was not voluntary and was not properly his act. If the impulse was resistible the fact that it proceeded from disease is no excuse at all.” (Stephen’s Cr. L., 91; 1 Whart. Cr. L., 8 ed., sec. 145; 8 Abb., N. Y., Pr., 57; 23 Ill., 283; 2 Brewst, Pa., 491; 23 Ohio St., 146; 13 Min., 341; 15 Wall., U. S., 580; 4 Pa. St., 264; DeJarnette v. The Com., 75 Va., 867; 4 Law Mag., p. 586.)
It is held in Oregon that if the accused knew enough to know the difference between right and wrong and that he was violating the law by the commission of the act, it will not excuse him although he had surrendered his judgment to some mad passion, which, for the time being, was exercising a strong influence over his conduct. (State v. Murray, reported in 6 Cr. L. Mag., 255.) Ungovernable passion is not insanity, and one whose power of will is not impaired by disease, and who, yielding to passion slays another, is subject to the punishment fixed by law. (Saunders v. The State, 94 Id., 147.)
It is said by the Supreme Court of Alabama: “There is a species of mental disorder, a good deal discussed in modern treatises, some times called ‘irresistible'impulse,’ ‘moral insanity,’ and perhaps by some other names. If by these terms it is meant to affirm that a morbid state of the affections or passions, or an unseating of the moral system, the mental faculties remaining meanwhile in a normal sound condition, excuses acts otherwise criminal, we are not inclined to assent to the proposition.. The senses and mental powers remaining unimpaired, that which is some times called moral ór emotional insanity savors too much of a seared conscience or atrocious wickedness to be entertained as a legal defense. Gibson, C. J., in Commonwealth v. Mosher, *3104 Barr (Pa.), 366, while recognizing the existence of moral or homicidal insanity as ‘ consisting of an irresistible inclination to kill or to commit some other particular offense,’adds: ‘There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees but can not avoid, and placing it under a coercion which, while its results are clearly perceived, is incapable of resistance.’ With all respect for the great jurist who uttered this language, we submit if this is not almost if not quite the synonym of that highest evidence of murderous intent known to the common law, a heart totally depraved and fatally bent on mischief. Well might he add: ‘The doctrine which acknowledges this mania is dangerous in its relations, and can be recognized only in the clearest cases. It ought to be shown to have been habitual, or at least to have evinced itself in more than a single instance. The frequency of this constitutional malady is fortunately small, and it is better to confine it within the strictest limits. If juries were to allow it as a general motive operating in cases of this character, its recognition would destroy social order as well as personal safety. To establish it as a justification in any particular case, it is necessary to show by clear proof either its contemporaneous existence evinced by present circumstances, or the existence of an habitual tendency developed in previous cases, becoming in itself a second nature.’ What is meant by ‘evincing itself in moré than a single instance,’ and how this principle would work in administration, we are left to speculate. Can that be sound legal principle whose general recognition would destroy social order as well as personal safety? We concur with Mr. Wharton (Howe, sec. 574), that moral insanity which consists of irresistible impulse coexisting with mental sanity “has no support either in psychology or law.” (Boswell v. The State, 63 Ala., 307.)
And so in The People v. Horn, 63 California, 120, it is held that “ an irresistible impulse to commit an act which one knows is wrong or unlawful, if it ever exists, does not constitute the insanity which is a legal defense. Whatever may be the abstract truth, the law never recognizes an impulse as uncontrollable which yet leaves the reasoning powers, including the capacity to appreciate the nature and quality of the particular act, unaffected by mental disease. It can not be said to be irresistible because not resisted.” And in Wallace v. The People it is laid down that if an accused has sufficient reason to know right from wrong, it is immaterial whether he had sufficient *311power of control to govern his actions. (26 How., New York, 67.)
But even in Pennsylvania the doctrine of uncontrollable impulse appears to have been greatly modified, if not repudiated entirely; for we find the Supreme Court of that State, in 1885, announcing, in The Commonwealth v. Taylor, that “moral insanity is not sufficient to constitute a defense unless it be shown that the propensities in question exist to such an extent as to subjugate the intellect, control the will, and render it impossible for the person to do otherwise than yield thereto. Ho mere moral obliquity of perception will protect a person from punishment for his act. The jury should be satisfied, with reference to the act in question, that his reason, conscience and judgment were so entirely perverted as to render the commission thereof a duty of overwhelming necessity.” A man in the condition thus described would be unquestionably insane to all intents and purposes, in our opinion.
We deduce from the authorities, as a correct general conclusion, that the law does not require as the condition on which c riminal responsibility shall follow the commission orf crime the possession of one’s faculties in full vigpr, or a mind unimpaired by disease or infirmity; that the mind may be weakened by disease, or impaired, and yet the accused be criminally responsible for his acts; that he can only discharge himself from responsibility by proving that his intellect was so disordered that he did not know the nature and quality of the act he was doing, and that it was an act which he ought not to do. But that if, on the other hand, he had sufficient intelligence to know what he was doing, and the will and the power to do or not to do it, he is, in contemplation of law, responsible for the act he has committed. (State v. Martin, N. J., reported in 3 Crim. Law Mag.. 44; see also Dunn v. The People, 109 Ill., 635, and 1 Bish. Crim. L., sec. 391.)
But let us concede, for the sake of argument, that defendant was entitled in this case to have the doctrine of irresistible impulse and uncontrollable will given in charge to the jury, then we think it is manifest from the following extracts taken from the charge that the law was sufficiently given, and that defendant has no just ground of complaint in the matter. The jury were instructed: “A safe and reasonable test in all cases would be that whenever it should appear from all the evidence that, at the time of doing the act, the prisoner was not of sound mind, but was affected with insanity, and such affection was the effi*312cient cause of the act, and that he would not have done the act but for that affection, he ought to be acquitted. For in such a case reason would be at the time dethroned, and the power to exercise judgment would be wanting. But this unsoundness of mind or affection of insanity must be of such a degree as to create an uncontrollable impulse to do the act charged, by overriding the reason and judgment and obliterating the sense of right and wrong, and depriving the accused of the power of choosing between right and wrong as to the particular act done.” This portion of the charge is a quotation from the opinion of Breese, J., in Hopps v. The People, 31 Illinois, 385. Again we copy from the charge: “If it is true that defendant took the life of deceased, and at the time the mental and physical machine had slipped from the control of defendant, or if some controlling mental or physical disease was in truth the acting power within him which he could not resist, and he was impelled without intent, reason or. purpose, he would not be accountable to the law. If, on the other hand, he was of sound mind, capable of reasoning and knowing the act he was committing to be unlawful a,nd wrong,' and knowing the consequences of the act, and hdd the mental power to resist and refrain from evil, his plea of insanity would not avail him as a defense.” And yet again the jury were told : “But if the mind was in a diseased and unsound state to such a high degree that for the time being it overwhelmed the reason, conscience and judgment, and the defendant in committing the homicide acted from an irresistible and uncontrollable impulse, it would be the act of the body without the concurrence of the mind. In such a case there would be wanting the necessary ingredient of every crime—the intent and purpose to commit it.”
We are of opinion that the charge upon the general doctrine of insanity was sufficiently full, and that it amply submitted the question of irresistible impulse and uncontrollable passion, at least as far as we are willing to go in that direction, and therefore there was no error in refusing the special requested instructions.
But, again, it is insisted that the court erred in the refusal of defendant’s special instruction to the effect that the law presumes insanity to continue after once shown to exist. In Webb’s case, 5 Texas Court of Appeals, 596, this court quotes from Mr. Greenleaf that “if derangement or imbecility be proved or admitted at any particular period, it is presumed to continue *313until 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. Ev., sec. 42.)
Doctor Wallace’s opinion was that defendant was a subject of ‘1 recurrent insanity.” 1 ‘ Recurrent ” means returning from time to time. Mr. Wharton lays it down as a rule that there is no presumption that fitful and exceptional attacks of insanity are continuous—a proposition manifest in itself. It is only insanity of a chronic or permanent character which, on being proved, is presumed to continue. (Whart. Cr. Ev., sec. 730.) On the other hand, the rule prevails that where an insane person has lucid intervals, the law presumes the offense of such person to have been committed in a lucid interval, unless it appears to have been committed in the time of his distemper. (1 Russ on Crimes, 9 ed., top p. 10, s. p. 11; 1 Hale, 33, 34.)
In an able article on “presumptions in criminal cases,” published in the first volume Criminal Law Magazine, Doctor Wharton says: “Supposing, however, insanity has been proven to exist at a particular time, is it presumed to continue? So we have been some times told, but erroneously. Some diseases which are classed under the general category of insanity are undoubtedly chronic and permanent, and from them recovery is hopeless. From senile dementia and congenital idiocy there can be, as a rule, no recovery. There are few other forms of insanity of which recovery may not be predicated, at least as a contingency, and many forms of insanity, for example, puerperal and climacteric, arising from some peculiar transitional condition of the system, are notoriously temporary. It is a petitio principii to say-that chronic insanity is presumed to continue; it is untrue to say that temporary insanity is to be considered as anything else than temporary. The fact is, there is no presumption of law whatever as to the continuance of disease of any kind. The question is one of experience, to be determined by the character of the disease, taken in connection with the character of the person in whom it acts.” Aside from this, the burden is upon the defendant to show that he was insane at the time of and with regard to the particular act, and the presumption of sanity in temporary or recurrent insanity is against him, and must be overcome by him with a preponderance of evidence. (2 Bish. Cr. Proc., 674.) It was not error to refuse the special instruction upon this subject.
*314That portion of the charge relating to the authority, and duty of a peace officer to arrest without warrant is also complained of. Such an arrest is allowed where an offense is committed in the presence or within view of the officer, if the offense is a felony or an “offense against the public peace.” (Penal Code, Art. 336.) It is made a disturbance of the peace if one in a public place, street or highway, or near a private house, shall use loud and vociferous language or swear or curse in a manner calculated to disturb the inhabitants. (Penal Code, Art. 314; Acts Eighteenth Leg., Regular Sess., p. 12.) The court instructed the jury that the officer would have the right to arrest defendant without a warrant if the latter swore or cursed in the street or highway, or in a public place, in his presence. This charge was erroneous because to curse and swear in a public place, street or highway is not an offense unless done “in a manner calculated to disturb the inhabitants of such public place.” (Art. 314.) Whilst a counter instruction was asked for defendant and refused, there is no bill of exception saved to either the charge given or that refused. One ground of the motion for a new trial is that the court erred in refusing instructions asked by defendant.
Our statutes make a difference in the practice with regard to charges in civil and criminal cases. In the former the charge is regarded as excepted to without the necessity of taking any bill of exceptions thereto. (Rev. Stat., Art. 1318; 2 Cond. Cases, Willson, secs. 135, 656), while in the latter it is expressly provided that if any of the eight provisions of the code with regard to the charge are disregarded “the judgment shall be reversed if the error is excepted to at the time of the trial.” (Code Crim. Proc., Art. 685; Clanton v. The State, 20 Texas Ct. App., 615, and authorities cited.) If no exception has been taken, then the question of the error in the charge may be raised on motion for a new trial, and a new. trial shall be granted “where the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.” (Code Crim. Proc., Art. 777, subdivision 2.) It is a well settled rule that a charge of the court, when first questioned as to its correctness in the motion for new trial, will not be revised on appeal unless, when viewed in the light of the circumstances, it was calculated to prejudice the rights of the accused. (Hart v. The State, 21 Texas Ct. App., 163; Mendiola v. The State, 18 Texas Ct. App., 463; Lewis v. The State, 18 Texas Ct. App., 401; *315Elam v. The State, 16 Texas Ct. App., 34; Gardner v. The State, 11 Texas Ct. App., 265; Mace v. The State, 9 Texas Ct. App., 110; Henry v. The State, 9 Texas Ct. App., 358.)
Applying these rules to the facts proven, we can not perceive that the error of the charge was calculated to injure defendant’s rights. It is abundantly shown that he was cursing in a public place and handling, if not flourishing, a knife. The druggist in front of whose store he was cursing was disturbed, and asked the deceased as an officer to take defendant away from his house. Complained of for the first time on the motion for new trial, when considered in the light of these facts,, we must hold that the error in the charge was without prejudice.
Another objection is that the court in effect charged the jury that, when the facts have been proven which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to justify or excuse the prohibited act. (Penal Code, Art. 51.) This identical question was raised in Jones v. The State, 13 Texas Court of Appeals, 1, and it was there held that “ when an accused relies upon any substantive, distinct, separate and independent matter as a defense, which is outside of and does not necessarily constitute part of the act or transaction with which he is charged (such as the defense of insanity, etc.), then it devolves upon him to establish such special and foreign matter by a preponderance of evidence. It would not be error to instruct in such cases that the burden of proving such defenses devolved upon the accused.” (Smith v. The State, 18 Texas Ct. App., 69; 7 Allen, Mass., 306; 62 Iowa, 414; 81 Kentucky, 662.)
The supplementary motion for new trial was properly overruled. “A new trial must be applied for within two days after the conviction; but for good cause shown, the court, in cases of felony, may allow the application to be made at any time before the adjournment of the term at which the conviction was had.” (Code Crim. Proc., Art. 779; Hart v. The State, 21 Texas Ct. App., 163; Smith v. The State, 15 Texas Ct. App., 139; Bullock v. The State, 12 Texas Ct. App., 42; White v. The State, 10 Texas Ct. App., 167.) Appellant was convicted at one term and an appeal was taken; the appeal was dismissed and the motion was made at a subsequent term. That was not the term at which the conviction was had.
It only remains to pass upon the sufficiency of the evidence. It is true the medical expert, Doctor Wallace, thought the de*316fendant insane to the extent that he would not have released him from the asylum, if in his charge, during any portion of the time covered by the testimony. Other witnesses did not think him insane. “The proved existence of mental disease does not necessarily exempt a person from criminal responsibility.” (Taylor’s Med. Juris., p. 813.) When the issue is on trial in a court of law “it is not medical but legal insanity which is required to be proved on these occasions to the satisfaction of a jury.” (Id., 834.) “An expert’s conclusions do not bind them, and should they, upon the whole evidence, judge differently from him, their verdict is to follow not his opinion, but their own.” (2 Bish. Cr. Proc., 3 ed., sec. 684.) In our opinion defendant’s plea of insanity was certainly not clearly established, if, in fact, the evidence tended to establish it at all. To have made it available it should have been established by a preponderance of evidence to the satisfaction of the jury.
Opinion delivered November 13, 1886.Because we have failed to find any reversible error in the record the judgment of the court below is in all things affirmed.
Affirmed.