Plummer v. State

• Decision Date: 14 January 1920
• Docket Number: (No. 5591.)
• Citation: 218 S.W. 499
• Parties: PLUMMER v. STATE.
• Court: Texas Court of Criminal Appeals

218 S.W. 499

PLUMMER v.STATE.

(No. 5591.)

Court of Criminal Appeals of Texas.

January 14, 1920.

On Motion for Rehearing, February 18, 1920.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

George G. Plummer was convicted of assault to murder, and appeals.Reversed and remanded.

Baskin, Dodge, Eastus & Ammerman, of Ft. Worth, for appellant.

Jesse M. Brown, Crim. Dist. Atty., of Ft Worth, and W. E. Myres, Asst. Crim. Dist. Atty., of Cleburne, and Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of the offense of assault to murder, and his punishment fixed at 7 years in the penitentiary.The facts are rather lengthy; and, inasmuch as a statement of them is not necessary to dispose of the case, we will not discuss them further than to say that the evidence shows almost without contradiction, that appellant shot his wife, and inflicted serious injury upon her at the time charged in the indictment.

Appellant's principal defense was insanity.He placed on the stand a number of witnesses on this proposition, among them, one John Estes, who testified that he had known the appellant for 24 years intimately, that appellant had gone to school to him when a boy, and that he had known him well ever since.Mr. Estes testified that on the occasion of the trouble, which was the basis of this prosecution, at the solicitation of appellant's brother, he went to the county jail, where appellant was confined, and there saw and attempted to talk with him.This witness was asked by appellant's counsel to state appellant's physical condition, but upon the state's objection, he was not allowed to narrate the same.In stating his purpose for asking for such evidence, appellant sets forth that he proposed to follow up same by asking this same witness his opinion as to appellant's mental condition at said time, and sets forth what the witness would have testified, both as to his physical condition and being then of unsound mind.The court refused to allow said question, either as to his physical condition, or to permit said witness, after detailing the manner and appearance of appellant at said time to say that in his opinion he was then of unsound mind.Such refusal of the trial court is here presented by two bills of exception.The court's action was erroneous in each instance.The exact inquiry in such case as to the mental soundness vel non must apply to the particular act charged, but it is always permissible to ask the witness the general question as to the mental soundness or unsoundness of an accused, and to prove the same by unexpert witnesses, whose evidence has disclosed facts and opportunities for observation, upon which such testimony may be predicated.As insanity is a disease of the brain, caused by some physical or mental disorder, it is always permissible to show the physical condition of the patient, as a part of the inquiry.

What we have just said is true as to the evidence of the witness Finney, as appears in appellant's bill of exceptions No. 8.This witness, after stating that he had known appellant all his life, that he made his bond, and kept him in his home for several days thereafter, was asked to describe appellant's physical and mental condition while in his said home, to which objection was made by the state and sustained by the court.Appellant states in his bill, which was duly approved, that if allowed to answer said witness would have stated such physical conditions as described in said bill, and would have further stated that, in his opinion, appellant was of unsound mind during said time.This was clearly admissible.

It is difficult to comprehend the view of the trial court.State's witnesses Wilburn, Mrs. Rosenback, and County Attorney Brown, each of whom appears to have seen appellant but once, were permitted, over objection, to state that they saw nothing in appellant's acts or conversation on said occasion to indicate that his mind was other than normal.Appellant's objection to this evidence was that said witnesses had not been shown to have had sufficient opportunities for observation, and that their answers were but opinions.Most testimony of a nonexpert witness resolves itself into an opinion when the direct question is put, but just why the evidence of Estes and Finney, who had known appellant all his life, and offered to give their opinions as to his mental soundness, was rejected, and the opinions of said state witnesses, who only saw him the one time, were admitted, is not quite clear.

Nor are we quite in agreement with the form of questions propounded to these state witnesses.We do not think the same presents a proper point of interrogation.Substantially, these witnesses were asked if on the occasion testified about they saw or heard appellant do or say anything which indicated that his mind was other than normal, and there the inquiry practically began and ended.The real question is whether or not the mind of the accused, at the moment of the commission of the offense, is sound or otherwise, as to the act charged; and that is the usual, customary, and settled point of inquiry.Normality of mind is not the test of legal responsibility, either under our statutes or decisions.If it be desired by either side to put in evidence the opinions of nonexperts that on a given occasion an accused talked and acted as he usually did, and that there was nothing in his acts or conversation different from his customary conduct, it must be shown as a predicate that the witness had at least a reasonable acquaintance with the accused, and had some opportunity to observe how he acted and talked on other and ordinary occasions.

We are not to be understood as holding that a nonexpert witness may not be able to intelligently answer, from the acts and conversation of a person with whom he had been but once, that in his opinion such acts and conversation as he observed and heard showed such person to be in the opinion of witness, of unsound mind, or the contrary; but we are laying down the rule that when either party resorts to testimony that the conduct or the conversation of a given person on a given occasion, in the opinion of the witness, was normal or abnormal, usual or unusual, that such opinion is inadmissible, unless such witness qualifies by showing himself to have had reasonable opportunities for knowing the normal and usual attitude, acts, and conversation of the party inquired about.None of said witnesses mentioned, to whom said question was put by the state, showed any reasonable acquaintance with appellant when his mind was in its usual and normal condition, and none of them testified to sufficient facts to justify a comparison between his mind on said occasion and when his brain was in its usual and normal condition.The fact that insanity was the defense makes such errors more material.

The charge of the trial court on the question of insanity is of unusual length.Great care should be taken to avoid repetition and the insertion of unnecessary details.

For the errors indicated, the judgment of the trial court is reversed, and the cause remanded for a new trial.

On Motion for Rehearing.

MORROW, J.

Responding to the able and forceful presentation of the motion for rehearing on behalf of the state by Assistant Attorney General and the county attorney of Tarrant county, we have made a careful re-examination of the case.

Touching the criticism of the references in the opinion to the statement of facts, we will not pause to review the office of the statement of facts with reference to questions of law presented on appeal, further than to reiterate what has often been said, that the bill of exceptions should be sufficient, without the aid of the statement of facts, to disclose the error complained of (Davis v. State, 14 Tex. App. 645), adding that where the record contains a statement of facts, and the bills of exceptions are prepared and filed in accord with the statutes, the court will not feel called upon to give to the rules relating to their construction an effect so restrictive as to defeat the purpose of the law requiring bills of exceptions.The statute(Rev. St. 1911, art. 2059) declares that no form shall be required, but that the objection to the ruling shall be stated with such circumstances, or so much of the evidence, as may be necessary to explain it, and no more, and the whole as briefly as possible.Article 2060 provides that reference may be made to the statement of facts.In a criminal case it is necessary to read the statement of facts to determine the sufficiency of the evidence before an affirmance can be ordered; and, touching the practice of this court throughout its history to consider the legal questions presented in the light of the facts, we quote the remarks of a learned law writer:

"The Texas Court of Criminal Appeals always considers the entire record, weighing, analyzing, and thoroughly digesting all the evidence before applying the law to the case in hand."Wharton's Criminal Evidence, vol. 1, p. 491, note.

Concerning the rules of practice, it was said, in substance, by Chief Justice Phillips of the Supreme Court that they are not intended to incumber the courts with technical and arbitrary requirements, or to enjoin such rigid adherence to them as precludes their observance by reasonable and substantial compliance.Railway v. Pemberton, 106 Tex. 466, 161 S. W. 2, 168 S. W. 126.

Looking alone to the bills of exceptions, we are advised thereby that the witness Estes had known the appellant since his youth; that he visited him in the jail the morning after the shooting, and observed his physical condition and his demeanor.He offered to testify that he observed the expression of the eyes of accused; that it was vacant and glaring, "a vacant stare, almost expressionless"; that he"did not appear to be conscious of what was going...