The opinion
WOODLEY, Judge,
dissenting.
About 3:45 P.M. on a bright Sunday afternoon Aswell Walker and his wife were out for a drive. They were traveling about thirty-five miles per hour on a paved by-pass road that ■was open ahead to “the Old Anson Road” where they intended to turn off. They were driving on their right hand side of this paved by-pass road when the automobile driven by appellant, traveling the same road in the same direction, struck the Walker car from the rear and on the left side with such force that Mr. Walker, the driver, was thrown into the back seat of his car.
Patrolman Smith did not talk to appellant until the next day, at which time appellant stated that he was driving at the time of the accident, but did not know just how it happened.
Dr. Estes was the attending physician when appellant was brought to the hospital. He testified that there was some whisky in appellant’s coat, a bottle about half full.
Dr. Estes was shown to be a practicing medical doctor in *24 Abilene, and his qualifications were stipulated. He treated appellant at the hospital for his injuries, and was with him for about one and a half hours, leaving him at about 7 or 7:15 P.M. He expressed the opinion that appellant was intoxicated.
The rule that the witness must first state the facts applies only to non-experts, and rests upon the theory that the opinion of the witness is entitled to no greater weight than the facts which form its basis.
Even as to non-expert witnesses, the rule has been criticized because the facts upon which the opinion is based are matters which affect the weight of the testimony rather than its admissibility. McCormick & Ray, Texas Law of Evidence, p. 790, Sec. 628.
That observation alone is a fact sufficient to form the basis of the expert opinion of a physician as to the condition of his patient was recognized in Hazelwood v. State, 79 Texas Cr. Rep. 483 , 186 S.W. 201, 202 .
If the testimony of the doctor was admissible, then the evidence is sufficient to sustain the jury’s finding that appellant was intoxicated.
It will be observed that Dr. Estes was not asked on direct or cross-examination the basis of his opinion as to appellant’s intoxication; and in appellant’s motion for directed verdict questioning the sufficiency of the evidence in other particulars, no question as to the sufficiency of the evidence to show appellant’s intoxication was raised or suggested.
The weight of the doctor’s opinion was for the jury. It, coupled with the manner in which appellant was operating his automobile, with a partly consumed bottle of whisky in his pocket, sustains the jury’s finding that appellant was intoxicated. The verdict should not be disturbed.