Leache v. State

• Decision Date: 13 November 1886
• Citation: 3 S.W. 539
• Court: Texas Court of Appeals
• Parties: LEACHE <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>

3 S.W. 539

LEACHEv.

STATE.¹

Court of Appeals of Texas.

November 13, 1886.

Appeal from district court, Comanche county.

A term in the penitentiary was assessed against the appellant upon his conviction in the first degree for the murder of J. N. Martin.

The evidence for the state shows conclusively that, on the twentieth day of June, 1885, the defendant was on the streets of the town of De Leon, very much under the influence of whisky, cursing and swearing in front of a drugstore; that the proprietor finally prevailed on the deceased and another to attempt the removal of the defendant to his home. Deceased urgently begged defendant to go home, and finally, with the help of another, undertook to lead him home. At a point about 400 yards from the drug-store the parties stopped for some purpose, when the defendant suddenly drew a pistol, and fatally shot the deceased. It was also testified for the state that, some days prior to the killing, the defendant claimed to have had a difficulty with deceased, and afterwards uttered threats to kill deceased.

The defense proved that the difficulty referred to by the witness for the state did not occur between defendant and deceased, but between deceased and another in defendant's presence, and that defendant was no party to the difficulty, and was in no way affected by it; impeached the witness who testified to the threats; and proved that, up to the moment deceased started home with defendant, they had been intimate friends. It was proved that the defendant was very drunk at the time of the killing, either upon whisky or some drug. By his wife and several members of his family, the defendant proved that for years he had been addicted to the morphine and whisky habit. The witnesses testified that, when under the conjoint influence of whisky and morphine, the defendant was absolutely and totally insane, and they related a great many instances of eccentric conduct on his part. His wife testified that he took a dose or two of morphine at home on the evening prior to the killing, and took a large quantity in a bottle with him when he left home. It was also testified that one or more of his maternal relatives died insane, and that others were inmates of a lunatic asylum in a distant state.

Pearre & Boynton, for appellant, cited against the charges of the court on the defense of insanity, approved in the opinion, the following authorities: State v. Felter, 25 Iowa, 67; Buckn. Unsoundness of Mind, 59; Whart. Hom. (2d Ed.) § 570; Whart. & S. Med. Jur. §§ 152-158; 15 Amer. Jour. of Insan. 303; Brown, Insan. § 8; 2 Bouv. Dict. (15th Ed.) "Lucid Intervals;" Life Ins. Co. v. Terry, 15 Wall. 580; Farrer v. State, 2 Ohio St. 54-70; Insurance Co. v. Rodel, 95 U. S. 232-340; Dejarnette v. Com., (Va. 1881,) 2 Crim. Law Mag. 348; Polk v. State, 19 Ind. 170; Stevens v. State, 31 Ind. 485; State v. Klinger, 43 Mo. 127; Com. v. Heath, 11 Gray, 303; People v. Coffman, 24 Cal. 230; Com. v. Eddy, 7 Gray, 583; Fisher v. People, 23 Ill. 283; State v. Marler, 2 Ala. 43; State v. Brinyea, 5 Ala. 241; Smith v. Com., 1 Duv. 224; Dove v. State, 3 Heisk. 371; State v. Bartlett, 43 N. H. 224; People v. Garbutt, 17 Mich. 9; Underwood v. People, 32 Mich. 1; Hopps v. People, 31 Ill. 385; Chase v. People, 40 Ill. 352; Ogletree v. State, 28 Ala. 701; State v. Crawford, 11 Kan. 32; State v. Lawrence, 57 Me. 574; State v. Hundley, 46 Mo. 414; Ex parte Holyland, 11 Ves. 11; Harden v. Hays, 9 Pa. St. 151; Clark v. State, 12 Ohio, 496, note a; Baldwin v. State, 12 Mo. 223.

Herring & Kelley, N. R. Lindsey, J. C. Jenkins, and B. D. Shropshire, also for appellant.

Asst. Atty. Gen. Burts, for the State.

WHITE, P. J.

Appellant was convicted of murder of the second degree for the killing of one J. N. Martin, his punishment being assessed at 14 years in the penitentiary. On the trial his defenses, in addition to the plea of not guilty, were — First, resistance to an unlawful arrest by an officer acting without authority of a warrant, and when no offense had been committed by defendant; and, second, insanity.

Among the witnesses summoned by defendant were several medical experts, whose testimony he proposed to use on the issue of insanity. In placing the witnesses under "the rule" which had been invoked preliminary to the introduction of the evidence, the court required the medical experts also to be placed under the rule with the other witnesses, over the protest of defendant, who insisted upon his right to have them remain in the court-room so that they might hear all the testimony adduced on the plea of insanity, and be thereby the better enabled to express an opinion upon that issue. Where "the rule" is invoked as to witnesses, the mode and manner of its enforcement is confided largely to the discretion of the court, and the exercise of that discretion will not be revised except in the clearest cases of abuse. Kennedy v. State, 19 Tex. App. 620; Bond v. State, 20 Tex. App. 421; Posey, Crim. Dig. Tex. 611, 612. No exception is provided by statute exempting any particular class of witnesses from the operation of the rule. Code Crim. Proc. arts. 662-666. Ordinarily, witnesses who are summoned as experts are excepted from the rule, and, in cases involving the question of insanity, the better and more satisfactory practice would be to allow them to remain in the room, and hear the testimony of all the other witnesses, in order that from the whole testimony they may be enabled to determine from the evidence itself the matter upon which their opinion is desired. Johnson v. State, 10 Tex. App. 571. Mr. Wharton states the rule otherwise, and holds that "when insanity is set up by a defendant, and denied by the prosecution, an expert cannot be asked his opinion as to the evidence in the case as rendered, not only because this puts the expert in the place of the jury in determining as to the credibility of the facts in evidence, but because the assistance thus afforded is in most trials illusory, experts usually being in conflict, and the duty devolving on the court and jury of supervising the reasoning of experts being one which can rarely be escaped." Whart. Crim. Ev. § 418.

This whole subject was fully discussed by us in Webb's Case, 9 Tex. App. 490, and upon a review of the authorities it was said that, "as to medical experts, they may state their opinion upon the whole evidence, if they have heard it all, or upon an hypothetical statement which is in conformity with the whole evidence. All authorities agree that it is inadmissible to permit an expert to give his opinion upon anything short of the whole evidence in the case, whether he has personally heard it, or it is stated to him hypothetically;" citing Redfield's addition to section 53, Greenl. Ev. Where the expert has not heard the evidence, each side has the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence, and, if meagerly presented in the examination on one side, it may be fully presented on the other; the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted. Coyle v. Com., 104 Pa. St. 117.

In the case in hand it is not shown that the hypothetical method of obtaining the opinion of the experts was either defective in not submitting all the facts essential to an intelligent opinion, nor that the opinions were such as would have been given differently had the evidence been heard directly by these witnesses, and their conclusions drawn from it, and not from an hypothetical statement of it. We cannot perceive that the discretion of the trial judge was abused in the matter to the prejudice of defendant.

Dr. D. R. Wallace, superintendent of the insane asylum at Terrell, Texas, qualified as an expert, and, upon the hypothetical statements submitted to him, declared as his opinion that the defendant, at the time of the homicide, was suffering from recurrent insanity. He further stated, in effect, that, had defendant been consigned as insane to his custody, at no time covered by the facts stated would he have felt authorized to release him as a sane man from the asylum. Appellant's counsel asked this witness if he could give any illustrations of recurrent insanity which had come within his own personal experience. This testimony was objected to by the prosecution, and excluded by the court. We have had no access to the authority (Lawson, Exp. Ev.) cited in support of the admissibility of the evidence in the brief of appellant's counsel; but, even if admissible, in our view of the case, its exclusion could not materially affect defendant's rights, and the ruling would be error without prejudice, which is not reversible error. The general rule seems to be that "an expert may be asked by either party as to the reasons on which his opinion is based, or he may, with leave of the court, give such explanation on his own account. Beyond this he cannot go in such examination, though he may be examined in details in order to test his credibility and judgment." Whart. Crim. Ev. (8th Ed.) § 419.

Many objections are urged to the charge of the court upon the question of insanity, and it is urgently insisted that it was error to refuse defendant's special requested instructions upon the subject. The chief objection is that the court did not instruct the jury to the effect "that defendant would not be responsible if he was overwhelmed by an impulse which took away his will power, and rendered him incapable of controlling his actions." In effect, the complaint is that the court did not sufficiently charge upon moral insanity or irresistible and uncontrollable impulse as an excuse for crime. As given, the charge of the court upon this branch is almost a literal copy of an approved charge on insanity given in Willson's Criminal Forms, (Form No. 716, p. 335,) and which is taken from the charge given the jury by the Hon. JOHN C. ROBERTSON, presiding in the...