Burt v. State

• Decision Date: 02 December 1897
• Parties: BURT v. STATE.
• Court: Texas Court of Criminal Appeals

43 S.W. 344

BURT v. STATE.

Court of Criminal Appeals of Texas.

December 2, 1897.

On rehearing. Denied.

For former report, see 40 S. W. 1000.

HURT, P. J.

The judgment in this case was affirmed at the Austin term, 1897, of this court (40 S. W. 1000), and the case comes before us now on motion for rehearing by the appellant. In the original opinion we discussed the question as to whether or not expert opinion could be obtained upon a partially stated hypothetical case, this question being discussed with reference to the bill of exceptions in regard to the testimony of Dr. T. D. Wooten. The same subject was presented in a bill of exceptions in regard to the testimony of Dr. Davis. We disposed of the question presented in the bill of exceptions with reference to the testimony of Dr. Davis by reference to what we had said in regard to the bill of exceptions as to Dr. T. D. Wooten's testimony. Counsel for appellant, on motion for rehearing, insists that there is a very material difference in the bills of exception. From the record it appears that Dr. Wooten was introduced by the state, and a hypothetical case submitted to him, and that this question did not include all of the evidence bearing upon the question of sanity. Dr. Wooten answered the question that, in his opinion, defendant was sane. Afterwards the state asked the witness his opinion based upon a hypothetical case embodying all the evidence in the case, upon which the witness expressed the same opinion as upon the state's first question; that is, that appellant was sane. Appellant then put a hypothetical question to the witness based upon his theory of the case, and upon which the witness answered that the defendant was insane. A full opportunity was allowed to get the opinion as to the defendant's sanity based upon any hypothesis to be inferred from any evidence in the case. The objection to this procedure was that the state obtained the witness' opinion upon an incomplete hypothetical case. Let us concede for the argument that the full case, containing all the testimony, offered either by the state or the defendant, must be embraced in the hypothetical case; still, if this was not done, no complaint can be urged by appellant in regard to the testimony of Dr. Wooten, because, after the defendant had submitted his hypothetical case, the witness answered that, in his opinion, the appellant was insane. Upon no ground of reason or common sense could appellant be heard to complain of this matter in the shape presented by this bill. Appellant was permitted to form a hypothetical case, not alone upon his testimony, but upon any and all the testimony introduced upon the trial. When the whole case was put, the witness answered that his opinion was that defendant was sane. When the defendant's case, based upon the testimony offered by him, was put to the witness, he answered that defendant was insane. But it will be observed that the bill shows that the state submitted the whole case, and upon which the witness answered that defendant was sane. We cannot comprehend how appellant can complain of this. As to the contention of appellant that the opinion was only upon a partial or incomplete statement of the case, we will treat of this subject when we reach the bill of exceptions pertaining to the testimony of Dr. Davis.

It occurs by a bill of exceptions that Dr. Davis was introduced as an expert; that the state submitted a hypothetical case, based upon its testimony bearing upon the question of sanity, and obtained the answer that appellant was sane. The defendant objected, because all the testimony bearing upon the question of sanity was not embraced in the hypothetical case put by the state; but the bill further shows that the defendant then put a hypothetical case to the witness, based upon 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 the witness answered that, upon such hypothesis, he would say that the defendant was insane; that all of the testimony bearing upon the question of sanity was embraced in the state's hypothetical question and the defendant's hypothetical question combined.

We have presented to us the question discussed in the original opinion, in treating of the bill of exceptions pertaining to the testimony of Dr. Wooten, which is: Can the state submit a hypothetical case which does not include all the testimony bearing upon the question of sanity, and obtain an opinion from the expert; or must the question propounded contain all the evidence bearing upon the question of sanity, whether introduced by the state or the defendant, and whether believed to be true or false by the state? We hold, as we did in the original opinion, that the state can formulate a hypothetical case embracing such facts bearing upon the question of sanity as it deems proper and competent, and obtain the opinion of an expert. We hold that, if the defendant is not satisfied with the hypothetical case submitted by the state, he has the privilege of submitting his case, not only as embraced in his testimony, but upon any and all testimony introduced on the trial. Of course, if the case submitted by the state is unfair and unjust to the appellant, the court will correct this; and if the court fails to do so, and the defendant proposes to submit a case embracing all the facts bearing upon the question, and he is denied this right, error would be patent.

Recurring to the bill of exceptions pertaining to the testimony of Dr. Wooten: If the last proposition be correct, the state was under no obligation, and was not required to submit the full case, but had the right to submit the case which it thought was supported by the testimony, and was not bound to submit a case involving testimony believed by the state to be false. And we repeat that the disposition of the bill of exceptions as to Dr. Wooten's testimony disposes of the bill of exceptions as to the testimony of Dr. Davis; for, if the state is not bound to embrace all the testimony bearing upon the subject, then it was not required to do so in reference to Dr. Wooten, but, after having done so, appellant had no right to complain.

Now, we have this question: Is it necessary, in submitting a hypothetical case, for the state to include every particle of the evidence bearing upon the question of insanity, in order to obtain a legal answer from the expert? If so, the contention of the appellant in the Davis bill of exceptions is well founded; for that bill shows that the opinion was obtained from the expert upon a hypothetical case that did not embrace the theory of the defense, and did not embrace all the testimony bearing upon the question of sanity. The question therefore is: Must the hypothetical case submitted to the expert include all the testimony bearing upon the question of sanity, in order to obtain a legal and proper answer from the expert? In the original opinion we discussed this very question, and held that it was not necessary. We have seen nothing to change our opinion upon this subject. The authorities are just that way. But it is contended by counsel for appellant that we have settled the law to the contrary in Webb v. State, 9 Tex. App. 490, Leache v. State, 22 Tex. App. 279, 3 S. W. 539, and in Williams v. State (Tex. Cr. App.) 39 S. W. 687.

Now, we assert that the question here discussed has never been presented in any case before either the court of appeals, court of criminal appeals, or the supreme court of this state. Counsel for appellant cites no case decided by the supreme court, but relies upon the cases of Webb v. State, Leache v. State, and Williams v. State, supra. What was the question before the court in Webb v. State, supra? It was as to whether or not an expert could give his opinion unless he had heard all the testimony bearing upon the question at issue. It was not a case in which the hypothetical case was submitted to an expert who had not heard the evidence. The question arose in this manner: Dr. Stone, witness for the defendant, heard all the testimony introduced on the trial, and gave as his opinion that he had heard no evidence of the insanity of the accused that could not be explained by other causes, such as indulgence in drink or debauchery. The state, upon cross-examination of Dr. Stone, asked what his opinion was, based upon the testimony of the witness Pool. Dr. Stone answered that from the evidence of Pool alone he would have considered Webb insane, and believed the mind of defendant, at the time the particular offense was committed, to be more or less disturbed from some cause, but not to the extent to relieve him entirely from responsibility. In passing, the court say "that the witness had heard all the testimony in the case, and did not believe the defendant insane. This opinion, founded upon the whole testimony, must have included, and did include, the testimony of the witness Pool. If it did, then how could any injury result to defendant by asking, and that, too, upon cross-examination, the opinion of the witness upon the testimony of Pool alone, we confess we cannot conceive. It would have been otherwise if the expert had not heard and formed his opinion upon the whole case; for in that case the question and answer would have been not only improper, but illegal and inadmissible." Now, it will be observed that in the Webb Case the hypothetical question was not propounded to an expert who had not heard the testimony, but the expert had heard all the evidence. It may be insisted that, if it is necessary for the expert to hear all the testimony before giving an opinion, therefore it is absolutely necessary that the hypothetical case submitted to an expert who did not hear the testimony must embrace all the testimony bearing upon the question of sanity. We are not called upon to pass upon this question; but the...