Appellant again insists that his bill of exceptions No. 2 shows error, in that the court refused to place Sheriff Saegert under the rule and also that having allowed the sheriff to remain in the courtroom during the trial of the case, he was again permitted to testify and to identify a certain shirt that appellant was supposed to have been wearing at the time of his arrest by the sheriff. This witness, upon his second appearance upon the stand, merely corroborated other witnesses as to this shirt, and we can see no error in thus allowing him to testify concerning a matter that was practically an uncontradicted one.
At appellant's insistence we have again carefully examined bill of exceptions No. 9, which relates to a refusal of the trial court to admit in evidence the will of the deceased, Mr. Scheunemann. The purpose of the offering of such will was found in an endeavor to throw some doubt or suspicion on a portion of the testimony of Rev. Kuretsch wherein he testified that in connection with a purported dying statement the deceased referred feelingly to his mother, although his mother was not mentioned in such will. In our opinion this matter was too remote, and too speculative, to have furnished any substantial basis for saying that such dying declaration was probably not made. We see no error in refusing the introduction of such will.
Appellant also complains of the fact that in our original opinion herein we failed to write on his bill of exceptions No. 8, which was based upon the introduction in evidence of a purported dying statement made by the deceased to the Rev. Kuretsch. The statement itself is as follows:
"On July 16th, 1936, in the morning, when there was no one else in the room, I talked to Willie Schuenemann, at the hospital. He told me he felt quite sure he would never return to his home, and that I should be sure that his mother would be taken care of, and I assumed he was very fond of his cattle, judging from what he told me there, that he would like for us to see to it that his cattle would be well taken care of, and another statement he made is that the Bodo Stolte Mexicans are the ones who attacked him." *Page 316
The main objection to the above statement being that the witness had not qualified as an expert, and that his statement relative to the deceased's sanity was but a mere conclusion, and should have been preceded by the witness giving his reasons upon which he based such conclusion. We fear that appellant has confused the rule relative to the insanity of a person with that relative to such person's sanity. The law presumes the sanity of all, until such has been otherwise shown, and we have long held that a nonexpert may testify that a person, with whom he is familiar and with whom he has been associated, appears to be sane, without first detailing the circumstances upon which such a conclusion is based. See Upton v. State,20 S.W.2d 794, and cases there cited. Not so, however, when the witness' testimony would tend to establish the insane condition of the mind. In the latter event, it would be necessary to detail the circumstances from which the witness drew his conclusion of insanity before the same could be stated. See Branch's Penal Code, p. 15, Section 30. It is to be here noted that the deceased was a parishioner of the witness and an associate of his, and that the witness testified that at the time of making the statement the deceased was sane. This bill does not seem to reflect any error.
Appellant's complaint contained in bill of exceptions No. 6, which was not written on in the original opinion, can be answered by saying that the question of the deceased's sanity at the time of his having made the purported dying declarations was submitted to the jury, under proper instructions by the court, and the jury evidently found the deceased to have been in a sane condition when such were made. We also note that the confession, claimed to have been made by the appellant, was properly guarded by the court's instructions, and we see no error reflected in such bill No. 6.
We have herein attempted to notice all bills of exceptions that were not specifically written on in the original opinion. We think this case was properly decided in the original opinion, and so thinking the motion is overruled. *Page 317