Gardener v. State

• Decision Date: 30 November 1921
• Docket Number: (No. 6453.)
• Citation: 235 S.W. 897
• Parties: GARDENER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 897

235 S.W. 897

GARDENER v. STATE.

(No. 6453.)

Court of Criminal Appeals of Texas.

November 30, 1921.

Appeal from District Court, Hamilton County; J. R. McClellan, Judge.

Walter Gardener was convicted of forgery, and he appeals. Reversed and remanded.

A. R. Eidson, of Hamilton, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The conviction is for the offense of forgery; punishment fixed at confinement in the penitentiary for a period of two years.

The defense of insanity was interposed, upon the evidence of both expert and nonexpert witnesses. The state relied upon the testimony of the nonexpert witnesses, and the sufficiency of the predicate given by them for the affirmative opinion that the appellant was sane is challenged.

One of these witnesses testified that he had known appellant for eight or ten years; that they had formerly been chums and closely associated together; that his recent association had not been intimate, but that he seen the appellant, talked to him, and observed him on various occasions within the 12 months past, had seen the appellant conversing with others in a crowd, and had also seen him on a rabbit hunt, but thereon had no conversation with him. Other witnesses upon the subject were more meager, but not more explicit.

The rules governing the predicate for such an opinion are stated in Williams v. State, 37 Tex. Cr. R. 348, 39 S. W. 687. The reasons upon which they are based are there stated, and both rules and reasons have received the sanction of this court on various subsequent occasions. Henderson v. State, 49 Tex. Cr. R. 512, 93 S. W. 550; Hurst v. State, 40 S. W. 264; Burton v. State, 51 Tex. Cr. R. 200, 101 S. W. 226; Wells v. State, 50 Tex. Cr. R. 501, 98 S. W. 851; Sims v. State, 50 Tex. Cr. R. 565, 99 S. W. 555; Betts v. State, 48 Tex. Cr. R. 525, 89 S. W. 413; Lee v. State, 43 Tex. Cr. R. 287, 64 S. W. 1047; Plummer v. State, 86 Tex. Cr. R. 487, 218 S. W. 499; Hazelwood v. State, 79 Tex. Cr. R. 483, 186 S. W. 201; Barton v. State, 230 S. W. 989; Taylor v. State, 227 S. W. 684; Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052.

As applied to the matter in hand, the rules mentioned preclude the receipt of the opinion of a nonexpert witness upon the issue of sanity, in the absence of a relation by the witness of some fact upon which the opinion is predicated, and a mere acquaintance with the subject of inquiry is not sufficient predicate to authorize the receipt of the opinion. In the instant case, it was manifestly practicable to have elicited from the witnesses some act or word or appearance or conduct of the appellant forming the basis of the opinion expressed, to the end that the jury might test the value of the opinion by the predicate. If the nonexpert witness can detail no fact or circumstance as a predicate, but is able to relate his acquaintance with the subject of inquiry, his opinion of sanity cannot be received. Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052; Burton v. State, 51 Tex. Cr. R. 200, 101 S. W. 226; Betts v. State, 48 Tex. Cr. R. 525, 89 S. W. 413; Barton v. State, 230 S. W. 989; Taylor v. State, 227 S. W. 684. In our opinion, in receiving the testimony mentioned, the trial court fell into error prejudicial to the appellant.

The forged instrument, a check, was used in procuring a shipment of merchandise from Dallas to Hamilton, addressed to Hugh Watson. Appellant called for the goods, and the express agent called the sheriff. The sheriff went to the express office for the purpose of arresting the person who called for the goods, and, soon after his arrival, took appellant in custody. Before notifying the appellant that he was under arrest, the sheriff obtained from him the admission that he had forged the check. Whether appellant, at the time he made the admission, was aware of the intention of the sheriff to arrest him, or regarded himself as in custody or under restraint, is not disclosed by direct testimony.

The state of his mind upon that subject was of importance in determining the admissibility of his unwarned confession. Clark v. State, 84 Tex. Cr. R. 390, 207 S. W....