Burt v. State

I agree to the conclusion reached by a majority of the court, in this case, but I disagree as to the rule of practice therein laid down with reference to propounding to an expert a hypothetical case. I do not concede, as contended for by counsel for appellant, that the rule has ever heretofore been laid down by this court. The question was more nearly involved in the case of Webb v. State, 9 Texas Crim. App., 490, than in either the Leache Case or the Williams Case; but an examination of even the Webb Case fails to disclose that the question was properly before the court. Judge White, however, in rendering the opinion in that case, appears to have ss conceived it, and discussed the question, *Page 455

and stated the rule to be that, in propounding a hypothetical question to an expert on the question of insanity, all the evidence developed on the trial should be embraced in the hypothetical question put to a party's expert witness. The opinion of the presiding judge discusses the matters involved in said cases, and I will no further refer to them, save to suggest that I can not understand how counsel for appellant so strenuously insists in his motion for rehearing that he was misled by the decision in the Williams Case as to the rule laid down in propounding a hypothetical question to an expert, when the Williams Case, at the time the Burt Case was tried, had not then been decided by this court. The question as to the proper interrogatory to be propounded to an expert witness was not before the court in the Williams Case, and what was said on the subject in that case, on a careful reading, would obviously appear to the legal mind to be merely dicta. Besides, as above stated, the Burt Case was tried in the District Court of Travis County on the 27th day of November, 1896, while the Williams Case was not decided by this court until March 27, 1897; so it is absolutely impossible that counsel could have been at all influenced by anything that was said in the Williams Case.

I would here call attention, to the case of Shirley v. State, 37 Texas Criminal Reports, 470, decided by this court on the 10th of June, 1896. The opinion in said case would indicate that this very question had come directly before this court in the decision of that case, and the opinion would appear to lay down a different rule than that contended for by appellant. I quote from the opinion as follows: "Upon the trial, counsel for the State submitted to the two physicians, G.B. Beaumont and C.M. Alexander, a hypothetical case. The physicians gave as their opinion that the appellant, was not only sane, but that he was feigning insanity. Counsel for appellant objected to this opinion, because the hypothetical case was not full, and did not include the testimony introduced by the appellant tending to show insanity. This objection was not well taken. If not satisfied with the hypothetical case submitted to the doctors by counsel for the State, it was the duty of the counsel for appellant to submit a case made up of all the testimony. Again, the opinion of the doctors was not based upon the testimony that they had heard alone; but they had made examinations of the appellant, had observed his conduct, and the opinion was based upon the evidence delivered by the witnesses and their personal observation of the conduct of the appellant." On an inspection of that record, it will appear, as suggested in the latter part of said opinion, that the experts were examined upon the hypothetical case put, in connection with their personal examination of the appellant and their observation of his conduct. I think it may be said that the question to be propounded to one's expert witness upon a hypothetical case was not fairly involved in the Shirley Case.

After an examination of all the authorities which are accessible, I think the true rule on this subject is simply this: That when the issue of insanity is gone into, and testimony is introduced upon that question, and *Page 456

an expert is introduced by a party, and a hypothetical question is propounded by such party to such witness, he should embrace in such hypothetical question all the facts that have been developed in the evidence bearing upon that issue which are not incongruous and which are not disputed. If any facts are incongruous or are disputed by him, of course he would be authorized to omit such facts; and, on cross-examination, the opposite party could, if he saw fit, in addition to the hypothetical question put by the party introducing the witness, propound a hypothetical case of his own, and add thereto such other facts as may been omitted by the opposite party, and which might occur to him to be material. Either party should be authorized to propound hypothetical cases embracing the disputed facts; that is, each party would embrace the facts believed by him to be true which may be disputed by his adversary. Such a course seems to me to be fraught with fairness. See Busw. Insan., sec. 263; Davis v. State, 35 Ind.,496; Goodwin v. State, 96 Ind. 550 ; Fairchild v. Bascomb, 35 Vt. 398 ; Hathaway v. Ins. Co., 48 Vt. 335 ; Steph. Dig. Ev., p. 105, and note. Authorities can, of course, be found to the contrary, and some of them go to the extent of authorizing a hypothetical question to be presented to an expert embracing only such facts as a party desires to present. See Coyle v. Com., 104 Pa. St., 117, and Stearns v. Field, 90 N.Y. 640 .

It occurs to me that the rule above stated is not only supported by the best considered authorities, but that it is logical. All of the facts which are adduced in evidence bearing upon the issue of insanity are a part of the defendant's character in that respect. Certainly, all of the undisputed facts pertain to him, and serve to shed light upon his character with respect to his sanity. Now, if the evidence contained a great many facts indicating eccentricity of character, and a few of these are culled out and put to an expert, he might say that they did not necessarily indicate insanity of the defendant; whereas, if all the eccentric facts are presented to the expert, he might say that they clearly indicate insanity. If, moreover, the record embraces a great number of facts, some indicating sanity and others insanity, and the facts indicating insanity alone are presented to an expert, he might say that the party was insane. On the other hand, if only the facts indicating sanity are submitted to the expert, he might unhesitatingly say that the party was sane: whereas, if all the facts in combination are submitted to the expert in the hypothetical question, he might say that they indicated his sanity or insanity, as the case may be. What I mean to say is this: That when all of the facts in evidence bearing upon the issue of the insanity of the defendant are undisputed, and the expert is adduced by the State to respond to a hypothetical question put, that question should, in common fairness, embrace all the facts. This, in concrete form, alone constitutes his character for sanity or insanity, and the opinion based upon all the facts can alone shed any light upon the question or be of any service to the jury. While I believe this to be the correct rule, yet it by no means follows that a case ought to be reversed where this method of propounding a hypothetical case has not been *Page 457

followed, and I would not be understood as holding that any case ought to be reversed because a proper hypothetical question is not put in the first instance by a party calling an expert, where full opportunity is afforded the opposite party for cross-examining that witness. Much less would I agree that the opposite party may object to a hypothetical question on the ground that it does not embrace all the facts, and conceal from his adversary, or refuse to state for the benefit of his adversary, such facts as are not embraced in the hypothetical question. In the case at bar, full opportunity was afforded the appellant on cross-examination to put a full case to the expert, or to put any character of hypothetical case arising from the evidence which he saw fit; and I do not believe that he could refuse to avail himself of this opportunity, and then ask a reversal of the case because a full hypothetical case had not been put by the State. Further, I do not believe that the bill of exceptions in this case fairly raises this question. The authorities hold that the bill must be so full and certain in its statements that in and of iself it will disclose all that is necessary to emphasize the supposed error. It must sufficiently set out the proceedings and attending circumstances below to enable the appellate court to know certainly that error was committed. The judge must certify to the truth of the facts upon which the exception is predicated; and the taking of an exception, without the recitation of such facts in the certificate of the judge, will not be remedied by the allegation of the grounds upon which the exception was taken. The bill of exceptions must itself certify the ground, or it must reasonably appear from the bill itself.

With regard to the testimony of the witness Carrie Sparks, I think it sufficiently appears that the exclamation she heard was from the wife of the appellant, and was addressed to him. It was made on the evening of the homicide, about 7 o'clock. The evidence shows that the only inmates in said house were the appellant, his wife, two small children, and the nurse. At that particular time the nurse and children were absent, and there is no testimony suggesting that anyone else could have been in the house at the time, save the appellant and his wife. True, the evidence is not positive establishing the fact that it was the voice of the wife addressed to her husband (appellant); but, while it was circumstantial, it was of such a character as to almost certainly exclude the idea that the expression could have been made by any other party than the wife, or to any other person than her husband. The evidence shows positively the absence of the nurse and children from the house at that hour, and presumptively or inferentially the presence there at that time of appellant and his wife; and I believe it was admissible for the State to show by the witness Carrie Sparks that, as she passed the residence of appellant, she heard a woman's voice exclaim, in a high tone, as if addressing someone, "I will not stand this any longer!" and this could be used by the State for the purpose of showing motive, and directly as tending to suggest sanity.

With the foregoing observations, I agree with the conclusion reached by the court. *Page 458