I concur in the conclusions reached by the presiding judge. As to whether the bill of exceptions in regard to the testimony of the expert witness Dr. Davis is complete, so as to raise the question at issue, I simply quote the qualification of the trial judge to said bill: "The evidence in the case was very voluminous, and in part contradictory. The fact of the killing itself, relied on by the defense as one of its strongest, if not only, ground showing insanity, was one of the disputed facts in the case, provable only by circumstances, and it was impossible to form a hypothetical case assuming all the evidence in the case to be true, because there was no direct evidence of the killing, and said testimony was contradictory in part; and the court stated to counsel that the State would be allowed to state a hypothetical case based upon the assumption that her testimony was true, and embracing all the evidence for the State, and to ask the opinion of the witness based upon such hypothesis; and that the defendant would be allowed to state a hypothetical case based upon the assumption that his testimony was all true, and on all reasonable inferences to be drawn from such testimony, and to express his opinion based upon such hypothetical case. The State embraced all its testimony in its hypothetical question, and, upon the assumed truth of said question, the witness stated his opinion that defendant was sane. The defendant then put its hypothetical case to witness based on the assumption that all his testimony was true, and based on the assumption that all reasonable inferences to be drawn from his testimony were true, including the fact that defendant, without reason, motive, or cause, killed his wife and children, upon which question witness answered that upon such hypothesis he would say the defendant was insane. All the evidence was embraced and included in the State's hypothetical question and defendant's hypothetical question combined." It will be seen from this statement of the judge that two hypothetical questions were stated — one based upon the evidence for the State, and the other based upon the evidence for the defendant. The expert witness answered upon the State's hypothetical question that the defendant was sane, and upon the hypothetical question put by the defendant that he was insane. Taking these answers, we are forced to the conclusion that the testimony was not only incongruous and contradictory, but led the mind of the expert to two different conclusions. Under such a state of case, it is evident that a hypothetical case embracing all the facts adduced on the trial in this respect could not be answered by the witness without first having decided in his own mind the credibility of the witnesses testifying to such facts. This, of course, he could not do. The credibility of the witnesses *Page 454 and the weight to be given their testimony in this State is entirely within the province of the jury. Then, we have the question as stated in the opinion of the presiding judge sharply presented, because no hypothetical question was put to the witness covering the entire testimony adduced in relation to insanity. The question, then, is as to whether the expert witness can be asked hypothetical questions involving the different theories, without requiring him in one question to pass upon all the testimony adduced. It is conceded by Judge Henderson that, if the testimony is incongruous and contradictory, hypothetical questions can be asked, presenting the different theories, and the witness be required to state his opinion on each. I agree with the presiding judge that this can be done in either event, whether the facts are disputed or not. If this were not true, there would be endless confusion and interminable discussion as to what are the facts, or whether the facts are incongruous or not. That the hypothetical questions may be put to the witnesses in this manner is sustained by the weight of authority, and is the sounder rule. In support of this proposition, I refer to Shirley v. State,37 Tex. Crim. 476; Jones on Ev., sec. 372, and notes for collated authorities; Stearns v. Field, 90 N.Y. 640; Harnett v. Garvey, 66 N.Y. 641; Mercer v. Vose, 67 N.Y. 56; Fairchild v. Bascomb, 35 Vt. 398; People v. Augsbury, 97 N. Y., 501; Guiterman v. Steamship Co., 83 N.Y. 358; Coyle v. Com., 104 Pa. St., 174; Pidcock v. Potter, 68 Pa. St., 342; State v. Klinger, 46 Mo., 224; State v. Hayden, 51, 296; Steph. Dig. Ev., p. 105, note. Mr. Jones, in his work on Evidence (section 373), thus states the question: "The facts are generally in dispute, and it is sufficient if the question fairly states such facts as the proof of the examiner tends to establish, and fairly presents his claim or theory. It can not be expected that the interrogatory will include the proofs or theory of the adversary, since this would require a party to assume the truth of that which he generally denies." He is here discussing the practice of putting hypothetical questions. If one side fails to include all the testimony in the, hypothetical question, the other may go into the matter fully on cross-examination. This, under all circumstances, will get the matter fairly before the jury; and such a practice is commended by the authorities I have examined on the question. See also Goodwin v. State, 96 Ind. 550; and there are other cases in Indiana to the same effect.