ON appellant’s motion for rehearing.
WOODLEY, Judge.In the light of appellant’s able motion for rehearing we have again examined his bills of exception relating to the testimony of Drs. Hotchkiss and Kallina, wherein they were permitted to express the opinion that appellant at the time of the homicide had sufficient reason to comprehend the nature and qualify of his act and that he knew the difference between the right and wrong of the act.
*403We find no difficulty in detennining that the doctors were shown to be qualified as expert witnesses and on the basis of their examination and conversation with appellant were entitled to express their respective opinions on the question of his sanity at the time they saw him.
The admissibility of the testimony as to the sanity or insanity of the appellant at the time of the homicide poses another question.
If, as contended, appellant’s defense was confined to his claimed loss of memory or “black-out” at the time of the killing, we would be inclined to agree that the expert testimony on the question of sanity or insanity at the time of the killing based only upon the fact that appellant was normal or sane at a later time would be nothing more than a guess or speculation, on a subject upon which the jury was equally able to form a conclusion.
When the jurors are as well qualified to speak as the witness, the opinion of the witness on the very issue to be determined by the jury is not permitted. See Maroney v. State, 115 Tex. Cr. R. 298, 29 S.W. 2d 772, and cases cited.
Here the defensive theory was not that of a normal person without any history of mental abnormality prior to the act who exhibited no symptom that might be observed by examination thereafter, and who was deprived of consciousness and understanding of his acts at the very moment of the killing due to some overwhelming emotional stress. His testimony, together with that of his expert and non-expert witnesses, portrayed a nervous or mental illness which began some time prior to the homicide and which had grown progressively worse until the time of the killing, at which time, according to these witnesses, appellant did not know right from wrong or the nature and consequences of his act.
Also according to appellant’s own testimony, his claimed period of black-out extended for some days after the homicide, and covered the very period of time during which he was treated and examined by at least one of the doctors.
It is further noted that in the absence of the jury it was shown that the conversation between appellant and Dr. Hotch*404kiss included statements indicating that appellant then knew and remembered what had happened.
Under these facts we think that the state was entitled to show that the claimed deterioration which so completely and abruptly came to an end prior to the trial did not in fact exist at the time of the killing. To do so the doctors who examined appellant after the killing and heard him converse about facts of which he testified that he had no memory were permitted as experts to express the opinion that he was sane at the time of the killing.
In Ross v. State, 153 Tex. Cr. R. 312, 220 S.W. 2d 137, we said:
“The rule seems to be well established that a nonexpert witness may delineate his observation of an accused, his attitude, both mental and physical, as compared to his previous attitude, etc., and draw his general conclusion or opinion therefrom, but nowhere have we been able to find any opinion that would allow such nonexpert to say what such opinion would be at a future time such as at the commission of the offense, if such be at a different time from his observation. To allow such an opinion would invade the realm of experts who, from their knowledge, study, and long experience, could therefrom fix a prognosis of such diseased condition of the mind and prophesy its future probable outcome.”
We see no reason why the rule stated would not apply to witnesses who examined the accused after the offense as well as to those whose opinion is based upon a prior examination. It seems logical to us that had this progressive deterioration been at work upon appellant’s mind for the length of time claimed, some evidence thereof would have been discernible to an expert who examined him shortly after the homicide. It follows, we think, that such an expert is qualified to express his conclusion or opinion that, since he found no evidence of progressive deterioration at the time of his examination, none existed at the time of the homicide a short while prior to the examination. We are careful to limit this holding to the particular type of insanity portrayed in appellant’s defense.
We remain convinced that the court did not err in permitting the doctors offered by the state to give their opinion on appellant’s sanity at the time of the killing in answer to appellant’s expert witness on the same issue.
*405We observe, also, that it was upon appellant’s objection that the details of the conversation between appellant and the doctors were kept from the jury. Also appellant was not prevented from inquiring fully as to the basis of the doctors’ opinions. He should not, therefore, be heard to say that the witnesses should have been required to give the details, or that the jury had no criterion by which they could evaluate the opinions.
Appellant cites and relies upon Boles v. State, 108 Tex. Cr. R. 204, 299 S.W. 407, Hill v. State, 134 Tex. Cr. R. 163, 114 S.W. 2d 1180, and Langford v. State, 124 Tex. Cr. R. 423, 63 S. W. 2d 1027. Each of these cases deal with a question upon which the jurors were equally well equipped to draw inferences or form conclusions. The decisions are therefore not deemed applicable. The testimony here was within the realm of expert testimony, as has been pointed out.
Appellant challenges the correctness of the statement in our original opinion that Dr. Kallina, in reply to a hypothetical question, answered that in his opinion the accused was sane at the time of the commission of the offense.
As pointed out by appellant, the statement is not entirely accurate in that the witness answered that it was not probable and he did not believe that appellant could have had a complete lapse of memory and not know what he was doing nor the nature and consequences of his act, and not know whether those acts were right or wrong at the time in question.
We think that the effect of the answer was the same as though he had again testified as to his sanity upon the basis of the hypothetical question. The question was framed to fit the defense testimony that appellant had “blacked out”.
If we understand appellant’s motion no error is claimed in regard to the testimony of Dr. Kallina other than upon the contention disposed of in connection with the bill relating to the opinion testimony of Dr. Hotchkiss. We find no error in either bill.
We remain convinced that the trial court’s remark quoted in our original opinion, which was made while the witness was being called upon to admit convictions and misdeeds of the past, was not such a comment as to indicate to the jury that the trial judge was impressed with her credibility or the truth *406of her testimony on direct examination relating to appellant’s threat.
We remain convinced that the evidence sustains the conviction for murder with malice. The punishment was for the jury and we have found no reversible error.
Appellant’s motion for rehearing is overruled.