Appellant was convicted of murder in the first degree, the death penalty being assessed against him, and he prosecutes *Page 478 this appeal. When the case was called for trial, appellant filed his first application for a continuance on account of the absence of Mrs. John Cupps, Dr. Hartman, Dr. Wood, and Dr. March. By Drs. Hartman and Wood he expected to prove that they "each attended W.H. Shirley (the defendant), and that the defendant was then diseased in his head, and that the mental condition of the defendant was greatly impaired. By the witness, Dr. March, that he was the family physician of defendant, and that he had specially examined the defendant, and that he believed the defendant was bordering on insanity, and that in a few years he would not be able to attend to business, and that when the disease with which he was suffering struck his brain, he would be deranged. By Mrs. John Cupps, the defendant's acts, words, and deeds, which words, acts, and deeds are and were leading to insanity, and which occurred before the killing." The facts expected to be proved are too generally stated. They are simply conclusions, and the matters and things upon which the physicians are supposed to base their conclusions as to their belief that the defendant was bordering on insanity are not stated. Nor are the "acts, words, and deeds" expected to be shown by Mrs. Cupps stated, nor how long they occurred before the killing. Even if the doctors had stated the facts upon which they based their belief, it would be insufficient, because the application for continuance states, while it indicates the defendant was bordering on insanity, that it was a few years in the future before he would be unable to attend to business, and before the disease with which he was suffering would strike his brain. That would be too late for this case, because the homicide had already been committed. When the case was called for trial, affidavit was made, under the statute, suggesting that the defendant was then insane, and should not be tried. A jury was empaneled, the State took the burden of establishing sanity, and introduced its evidence, and counsel for the defendant then introduced evidence for the purpose of establishing insanity. When the evidence had closed, the court ruled that counsel for appellant should open and close the argument in the case. In this there was no possible injury to the appellant, for, whether the burden of proof was upon the appellant to make good the suggestion of insanity, or whether the State showed sanity, certainly appellant could not complain, when he was awarded the right to open and conclude the argument. Bills of exception Nos. 3, 5, and 6 all present the same matter. Upon the trial, counsel for the State submitted to the two physicians, G.B. Beaumont and C.M. Alexander, a hypothetical case. The physicians gave as their opinion that the appellant was not only sane, but that he was feigning insanity. Counsel for appellant objected to this opinion, because the hypothetical case was not full, and did not introduce the testimony introduced by appellant tending to show insanity. This objection was not well taken. If not satisfied with the hypothetical case submitted to the doctors by counsel for State, it was the duty of the counsel for appellant to submit, a case made up of all the testimony. Again, the opinion of the doctors was not based upon *Page 479 the testimony that they had heard alone; but they had made examinations of the appellant, had observed his conduct, and the opinion was based upon the evidence delivered by the witnesses and their personal observation of the conduct of the appellant. It appears that the defendant was warned by Sheriff Bell, after his arrest on this charge. The sheriff stated to him "that it was his duty as an officer to tell him that any statement he might make to him might be used against him, but could not be used in his favor. After this the defendant replied that, if that was the case, he would not make any statement." Appellant objects to this on the ground that the answer of appellant was calculated to mislead the jury and prejudice him. If this was a confession, the defendant having been duly warned, certainly it could be used against him, and the contention of the appellant would signify that it was of that character. The view we place upon it, however, is, not that, if defendant made a statement, it would be prejudicial to him, but that, when he learned from the sheriff that what he said could not be used in his favor, lie then declined to make any statement at all. This, it occurs to us, is the obvious construction of the reply of the appellant. It occurs to us that the testimony was not calculated to prejudice the appellant, and that the exception is rather frivolous than otherwise. We have thoroughly examined the record, and in our opinion the evidence in this case amply justified the jury in finding the defendant guilty of murder in the first degree. The judgment of the lower court is affirmed.
Affirmed.