#### Milford *v.*The State.

*Assault With Intent to Murder.*

(Decided Dec. 19, 1911.

57 South. 96.)

1. *Homicide; Insanity; Evidence.*— Before evidence tending to produce insanity, such- as the acts and bad conduct of a wife, becomes admissible as a defense in murder or assault with intent, the defendant must offer some testimony of his insanity at the time of the commission of the act charged

2. *Trial; Objection to Evidence; Putting Court on*Notice.— Where evidence is offered which is prima facie irrelevant and inadmissible, the court will not be put in error for sustaining objection thereto, unless the party calling for such evidence states to the court that he intends by subsequent evidence to show its relevancy, and the tendencies and character of the subsequent evidence to be itrodueed by him.

3. *Witnesses; Examination; Leading Questions.-*— -It is within the discretion of the trial court to permit, or not, leading questions and unless abuse of discretion is shown, a court will not be put in error for permitting or declining to permit leading questions.

Appeal from Jefferson Criminal Court.

Heard before Hon. S. L. Weaver.

Will Milford was convicted of assault with intent to murder and sentenced to twenty years in the penitentiary. The defense was not guilty by reason of insanity. From the conviction he appeals.

Affirmed.

*105J. T. Roach, for appellant.

The general character of the wife (in this case the person assaulted) and her acts, tending to produce strange mental condition, were admissible, and the court erred in excluding the evidence offered in this *connection.*— White *v. The State,*22 So. Ill; *McCutehens v. Loggens,*109 Ala. 457; *Rhea v. The State.*100 Ala. 119. For authority in other jurisdictions, see 55 Mo. 520; 43 S. W. 637; 188 Ind. 9; 32 S. W. 166. The evidence offered as .to the insanity of the defendant is competent, and should have been *admitted.*— Parsons *v. The State,*81 Ala. 577; *Parrish v. The State,*139 Ala. 16.

R. C. Briokell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.

The defense of moral law emotional insanity is not recognized in this state as a defense to *crime.*— Oauley *v. The State,*133 Ala. 128; *Walicer v. The State,*91 Ala. 768; *Parsons v. The State,*81 Ala. 577. A mere declaration that a man acted like a crazy man under the circumstances of this case was not *sufficient.*— Braham *v. The State,*143 Ala. 28. Testimony as to the assaulted woman’s character was not admissible to impeach her *veracity.'*— Crawford *v. The State,*112 Ala, 1; *Perry v. The State,*149 Ala. 40; *Swent v. The*State, 154 Ala. 46. . The acts and conduct of the wife were prima facie inadmissible at the time offered, and no statement Avas made to the court of anticipated evidence rendering the proposed testimony releArant,

de GRAFFENRIED, J.

The defendant Avas indicted for assault Avith intent to murder, was convicted by a jury, and under the judgment of the court rendered on the verdict was sentenced to the penitentiary for *106twenty years. From this judgment the defendant appeals.

The party upon whom the assault was made was the wife of the defendant. The details of the crime, as shown by the evidence, were brutal in the extreme, and if the defendant was guilty the punishment inflicted by the court was not too severe.

It appears from the evidence that the relations existing between the defendant and his wife at the time of the commission of the alleged offense were extremely unhappy, and that this unhappy situation was due, largely, to the misconduct of the wife. In fact, the parties had separated more than once, and the wife, according to the testimony, was a woman of bad character. On the other hand, except for certain statements made by the wife while she was on the stand as a witness testifying against the defendant, the evidence all tends to show that the defendant was, up to the time of the commission of the offense, a man of good character.

On the night of the alleged offense, the defendant anu. the wife slept in different rooms, and about three o’clock in the morning the defendant went into her room and while she slept struck her several blows on the head, fracturing the skull in three places and inflicting several dangerous wounds. The bill of exceptions tends to show that the wife did not know of her injuries until several days after the occurrence, as the first blow seems to have rendered her unconscious. Immediately after the occurrence the defendant left and was not seen for more than two weeks.

The case was tried upon the pleas of not guilty and not guilty by reason of insanity at the time of the commission of the offense.

1. While the trial was in progress and before the defendant testified, and before any evidence had been *107offered tending to show that the defendant was insane at the time of the commission of the alleged offense, and Adhile the defendant’s wife was testifying as a witness, counsel for defendant asked her the following question: “Is it not a fact that some time last summer, before the alleged assault, you Avere in company with men of questionable habits and character on the corner of Twentieth street and First avenue in the city of Birmingham, and that you held their hands and slapped them on the back?” The state objected to the above question on the ground that it called for incompetent, irrelevant, and immaterial testimony. Thereupon the attorney for the defendant called the court’s attention to the fact that the defendant had interposed a plea of “not guilty by reason of insanity,” and that he proposed to sIioav that the conduct on the part of the wife was brought home to the defendant, and argued to the court that under the plea of insanity it was relevant, material, and competent to sIioav any act or fact which, AAdien brought to the knoAvledge of the defendant, would have a tendency to unbalance his mind. The court sustained the objection and refused to allow the Avitness to ansAver the question, and the defendant then and there duly excepted to this action of the court.

In making the above statement to the court, counsel for defendant did not state that he intended, by subsequent evidence to be introduced by him, to show that the information called for by the above question, Avlien communicated to defendant, had so Aveighed upon his mind that he became insane, and that at a time of mental irresponsibility, caused by such insanity, he committed the act.

A jury have no right to infer the existence of insanity from the existence of a cause which may have some tendency to produce it, unless there is some evidence *108before them that insanity actually followed as a. result of the possible cause. As Was said by the Supreme Court of Indiana, “If it were a case where a given effect *must*follow the cause, there would be force in the argument because proof of the cause would be proof of the effect. But we know that the various causes that may tend to produce insanity very frequently fail to produce any such effect; and it seems to us that it is not competent to prove the existence of such exciting-cause unaccompanied with some proof that the effect followed the cause. Indeed, a. jury would not be authorized to find a man to be insane Avithout proof on the subject other than the fact that a cause existed that tended to prove *insanity.”*—Sawyer *v. State,*35 Ind. 80.

Our undertsanding is that Avhen evidence is offered during a trial and Avhen, at the time it is offered, it is *prima facie*incompetent and the party against whom it is sought to be introduced objects to its introduction, the party so offering- the evidence cannot put the trial court in error for its refusal to allow such evidence, unless he, by a statement to the court, shOAVs that he Avill subsequently introduce such evidence as will render the proposed evidence relevant and material and subsequently introduces such evidence. The defendant, while the state was offering- its evidence, asked similar questions of other Avitnesses, which, if ansAvered affirmatively, would have tended to show that defendant’s Avife Avas a leAvd woman and that her acts had been such as would naturally have given him much concern, but as that evidence was, at the time it Avas offered, *prima facie*irrelevant, and counsel for the defendant did not sufficiently inform the court as to *how*and by what evidence he Avould subsequently render it material, the court cannot be put in error for refusing, *109on the objection of the solicitor, to allow the evidence to go to the *jury.-Smith v. Gufford,*83 Ala. 168; *First Nat. Bank v. Chaffin,*118 Ala. 246.

Evidence that a man’s wlife was a lewd woman and that he was informed of her misconduct in no way palliates his crime if he murders her. If her lewdness renders him insane and he kills her while insane, he must offer evidence of his insanity at the time of the act before the evidence of her lewdness becomes admis*sible*.—Sawyer *v. State, supra.*

2. For the above reasons, the action of the trial court as to all of the questions propounded to the witnesses Vandy Lewis, J. F. Weir, and Mrs. Oharley Graham, which the court, on the objection of the solicitor, refused to allow; the witnesses to answer, must be sustained. These witnesses Avere placed upon the stand by the defendant and many of the questions were plainly leading, and the action of the trial court in refusing to allow them to be answered can be also sustained on that ground.

3. It is also evident that the court, on objection of the solicitor, properly refused to allow Mrs. Oharley Graham to ansAver the following question: “Is it not a fact that you observed the defendant, a short while before this'trouble, strolling about the field picking up sticks, and that you remarked to your husband that Mr. Milford acted like a crazy *man?”*—Braham *v. State,*143 Ala. 28.

4. Tlie action of the trial court in its other ruling-on the evidence av&s in accordance with the AÚews expressed by us in sections 1 and 2 of this opinion, and such rulings of the court Avere, therefore, without error.

While there may have been some evidence tending to show that the defendant was insane at the time of the *110commission of the alleged offense, the record discloses that he was convicted by a jury after a fair and legal trial, and as there is no error in the record the judgment of the couid below is affirmed.

Affirmed.