McLeod v. State

• Decision Date: 07 December 1892
• Citation: 20 S.W. 749
• Parties: McLEOD v. STATE.
• Court: Texas Court of Criminal Appeals

Page 749

20 S.W. 749

McLEOD v. STATE.

Court of Criminal Appeals of Texas.

December 7, 1892.

Appeal from district court, Baylor county; W. M. PERRILL, Judge.

J. B. McLeod was convicted of murder, and from a judgment assessing his punishment at life imprisonment he appeals. Reversed.

Byron Johnson, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of murder, and his punishment assessed at life imprisonment in the penitentiary. He was tried in the district court of Baylor county, where said cause was carried by change of venue from Motley county. The defense was insanity and delirium tremens.

1. The defendant complained that the court erred in permitting the testimony of the witness Judge W. R. McGill, and his opinion as to the sanity of the defendant, to go to the jury. The principal issue before the jury was the insanity of the defendant; and to prove his sanity the state, among other witnesses, introduced Judge McGill, who testified that he presided as district judge during the first trial, and observed defendant during that and the present trial, and has examined his eyes as he sat in court; that they are intelligent eyes, and not the vacant and glazed eyes usually seen in insane persons; that he has been a good deal with insane persons, and noticed their eyes, and defendant's eyes differ from those of the insane people he has seen; and it was witness' opinion that defendant was sane when he killed Varner. This testimony, considering the character of the witness, was certainly most material and important, and must reverse the case. It was duly excepted to. How far a nonexpert witness must qualify himself before he can express an opinion on the sanity of a person cannot, perhaps, be clearly laid down; but we certainly think it should be to a greater extent than merely looking at a prisoner during the trial in a court room. Such a witness, unless he be an expert, could be of no assistance to the jury, who have the same opportunity of making observations as himself. In Thomas' Case, 40 Tex. 60, the court say: "We think the witnesses should be allowed to give their opinions, together with the facts on which these opinions were based, where it appears that the acquaintance with the party will enable them to form correct opinions of his mental condition." Campbell's Case, 10 Tex. App. 560; Harris' Case, 18 Tex. App. 294. It certainly must appear he has some knowledge of the acts and conduct of the person upon whose mental condition he declares his opinion. It is not every witness who may testify to a pertinent and relative fact who can express an opinion. To do this he must have the necessary opportunity of observation, so as to be able to form a reasonable opinion of the existence or nonexistence of the disease. 2 Bish. Crim. Proc. 679. Nor do we think the witness qualified himself to speak as an expert. It does not appear in what capacity he came in contact with insane people, nor what opportunities of observation were afforded him. Expert testimony, in insanity cases, has in general proved so unsatisfactory that only those who are expert in mental diseases or psychological studies are regarded as authority, for it is a knowledge rarely attained, and involving much study, observation, and experience. Com. v. Rich, 14 Gray, 335; Russell v. State, 53 Miss. 367. But certainly we know of "no author or authority who lays down the lackluster appearance of the eyes" as the crucial test of insanity. If it was, there would be small need of expert or other testimony; but, as the priest of old looked upon the leper sore, and pronounced one "unclean," so the jury could declare "insanity." Such eyes are said to be an indication of imbecility, but such a test is wholly inapplicable to the innumerable forms and phases of insanity which baffle the skill of the expert. It does not even permit "the common leer of the lunatic, or the savage glare of the maniac." Messrs. Wharton & Stille, in their able work on Medical Jurisprudence, lay down five tests by which insanity may be detected. Each test involves many subsidiary facts. Section 86. In reference to the first test, "the physiognomy," we are directed to examine the entire exterior of the subject, — his posture, motions, gestures, eyes, nose, mouth, words, and intonations. Sections 100, 101. The point to be noticed about the eyes is their restlessness, as "they lack the calm, unobstructed gaze of sanity, untouched by passion or excitement." Mr. Bishop says the evidence relied upon to show insanity is the language and conduct, in which is included the question of motive, and the nature of the criminal act, and other circumstances. Bish. Crim. Proc. 687a. We think the evidence is unsustained by authority, and inadmissible.

But the most serious question in the case is whether the evidence supports the finding of the jury as to the guilt...