Arthur P. Glover was convicted of murder, and upon his motion for a new trial being overruled he excepted.
1. Two of the grounds of the motion complained of the alleged misconduct of the jury which returned the verdict. The only evidence in support of these grounds was the affidavit of one of the jurors, which was contradicted by the affidavits of all the other jurors. It is only necessary, in disposing of these grounds, to quote the language of the Civil Code, §5338: “The affidavits of jurors may be taken to sustain, but not to impeach their verdict.”
2. Another ground of the motion was, that after six jurors had been selected to try the case and eighty-four had gone off for cause, counsel for the accused renewed their motion for a change 'of venue, and “the court granted the same, stating to the counsel for the defendant and State to agree upon a county; if not, the court would select a county;” the judge further stating: “I will let the case go over until to-morrow morning before I take action in that matter.” Counsel for the State and counsel for the accused agreed upon another county before the court convened the next morning, and counsel for the accused asked the court to grant an order changing the venue to the county thus agreed upon. The court refused the motion, and ordered the case to proceed. The assignment of error is, “that the court had entertained serious doubt the afternoon before that a fair and impartial trial could be had in Eichmond county, and no evidence had been introduced in the presence of defendant’s counsel to remove said doubt or produce further evidence.” This ground is wholly without merit. The court did not finally pass upon the motion for a change of venue until the morning after it was made, and it was certainly not erroneous to then decide the question presented without hearing evidence to remove any doubt that the court might have entertained on the subject the afternoon before. The ruling of the judge refusing to grant the motion for a change of venue, being made under the circumstances stated, clearly indicates that what•ever opinion he may have at first entertained as 'to the merits of
3. Complaint was made that the .court intimated to the jury what had been proved in the case, by saying in their presence that Dr. Wade, a witness for the accused, did not, in his testimony, claim “to be an expert on these cases [eases involving the question of insanity] or to have any peculiar knowledge on that subject;, yet he was permitted to testify not only to his opinion derived from facts within his own knowledge, but there was also propounded a very lengthy and comprehensive hypothetical question by counsel for the defendant.” It is clear that the judge did not, in this-statement, intimate to the jury what had been proved in the case. There was, however, a positive statement by the judge that the witness referred to had not, in his testimony, “claimed to be an expert in these cases, or to have any peculiar knowledge on the subject,” and unless this statement by the Judge was incorrect,*, the accused had no cause for complaint. The matter would be different if the judge had stated that the witness had not been shown by the evidence to be an expert in insanity cases, for he would then have been expressing an opinion upon the evidence; but when he' merely stated that the witness had not claimed, that is, had not testified, that he was an expert in such cases, he simply undertoolc to state a fact, and if lie stated it correctly, no error was committed. A statement by the court that a witness said a certain thing, or did not say it, is not, in a legal sense, an expression of opinion as to the evidence. Williams v. Hart, 65 Ga. 201 (5); Wiggins v. State, 80 Ga. 468 (5 S. E. 503). Of course, the statement by the court that the witness had been permitted to testify to his opinion,, derived from facts within his own knowledge, and that a lengthy hypothetical question had been propounded to him by counsel for the defendant, was not an expression of opinion upon the evidence.
4. There was no merit in the complaint that counsel for the' State was permitted, over the objection of the accused, to ask, on cross-examination of a witness for the defense, if, in the opinion
5. Another ground of the motion was that the court erred in permitting the following question to be asked a named witness for the State, and in admitting his answer thereto: “Q. From the term of your acquaintance, judging by his manner, appearance, and conduct, would-you say whether he [the accused] was sane or insane? A. I would say he was sane.” . “Counsel for the defendant [urged] the objection that-said witness had not narrated the facts upon which to base his opinionand “that said question was an interrogation as to a fact and not as to the witness’s opinion.” The question was evidently framed to elicit the opinion of the witness as to the mental condition of the accused, based on his manner, appearance, and conduct during the acquaintance of the witness with him. It is well settled that a non-expert witness may give his opinion as to the sanity of another, based upon such facts as are set out in this question. Proctor v. Pointer, 127 Ga. 134 (56 S. E. 111); Herndon v. State, 111 Ga. 178 (36 S. E. 634), and cases cited.
6. It is claimed that the court erred in instructing the jury as follows: “Should it appear from the evidence that Glover, at the time he slew Maud Dean, knew the difference between right and wrong, but did not have power of mind and will sufficient to keep him from killing her, he would not be guilty of murder; the insanity which the law recognizes as an excuse for crime must be such as dethrones reason ahd incapacitates one from distinguishing between right and wrong.” The error assigned was that “such charge was conflicting and confused the jury;” but the only contention in the brief of counsel for plaintiff in error is that it was conflicting. The second clause of this excerpt from the charge correctly states the general rule as announced in Spann v. State, 47
7. Another ground of the motion for a new trial was, that during the progress of the trial the judge intimated “his opinion of the case by the following remarks to defendant’s counsel, to wit:” Then follow several pages of recital, in detail, of various incidents of the trial and the remarks of the judge in making different rulings in connection therewith and in colloquies between himself and counsel for the accused. We have carefully considered all of such remarks, and find that none of them tended to intimate an opinion as to what had or had not been proved, and that the language of the judge could not be construed'as an intimation of any view which he might entertain as to the case. We are sure that no good purpose could be served by setting out even the substance of all of this very lengthy ground of the motion, but will quote two or three extracts therefrom, as fair samples of the whole, (a) “Mr. Eranldin, of counsel for defendant, said: ‘If your honor please, one of the jurors wants to say something to you,’ and the court replied: ‘You have nothing to do with that. I will be glad to hear from the juror.’ Shortly thereafter, and after two other jurors had been passed upon, Mr. Eranklin arose and said:
8. Several grounds of the motion assigned error because the court allowed State’s counsel to propound specified questions to witnesses, it not appearing what objections were made to the questions at the time they were propounded, nor what answers the wit
9. Two grounds of the motion assign error because Dr. Morgan,, a witness for the State, was permitted, over objection, to testify as an expert as to insanity. In one of these grounds it is alleged that the witness, after having testified “that his only experience in mental diseases was such as came to him as a physician in general practice, and that he had made no special study of the subject, nor had any experience that 'would make him a specialist or expert on nervous diseases, was allowed, over objection of defendant’s counsel, to answer the following question, to wit: ‘What is the difference between idiocy and lunacy ?’ the answer of the witness being given. There are two assignments of error in this ground, the first being that it was error to allow “a physician who expressly disclaimed to be an expert to differentiate and define the different forms of insanity.” The other assignment is in the following language: “Because the court in his ruling on the question said that though the physician disclaimed to be an expert, yet if the evidence showed that the witness is capable from his experience, education, and observation to give an opinion and to be treated as an expert, it is proper that he should be so treated, notwithstanding the fact that he disclaims being an expert. N think the testimony is proper. Go ahead.’ The error being that the court in effect told the jury that though the phj^sician disclaimed being an.expert, the evidence showed the court that he was an.expert and could answer any question that could be propounded to an expert.” In the other ground complaint is made that this same witness, “who disclaimed to be an expert,” was permitted, over objection, to answer a stated hypothetical question. There was no error in either of these rulings of the court. The question whether the witness was or was not an expert was not one to be determined by him but by the court. It was rightly held in Crow v. State, by the Court of Criminal Appeals of Texas, 33 Tex. Cr. 264 (26 S. W. 209), that, “If a witness’s testimony shows him an expert, his statement that he is not an expert does not deprive his testimony of the quality of expert testimony.” A witness might have such a very modest estimate of his own abilities and qualifications to give an expert opinion upon a given subject as to disclaim being an expert in reference thereto; and yet his testimony as to his education, study, experience, investigations,
10. The assignment that the judge erred in expressing an opinion upon the evidence is obviously without merit. He could not decide the question raised by defendant’s objection, without deciding that the witness had been shown by the testimony to be an expert. When preliminary evidence, upon the sufficiency of which other evidence is dependent, is introduced, the trial judge is bound, to decide whether such preliminary evidence is sufficient for the purpose for which it is offered, for unless he does decide this question in the affirmative, such other evidence can not be introduced. In this case, for instance, when the competency of the witness as an expert was challenged by the objections to his testimony, the judge was bound to decide whether he was or was not so competent, and he could not decide this question without expressing or intimating his opinion as to the sufficiency of the preliminary evidence to show the witness to be an expert.
11. A number of the grounds of the motion for a new trial are not referred to in the brief of counsel for plaintiff in error, and therefore they are treated as abandoned.
12. The evidence warranted the verdict, and the court did not t err in refusing to grant a new trial.
Judgment affirmed.