The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1897-06-17

win v. State, SO Ind, $50; Rogers Ex-
pert Testimony. 80; Stearns v. Field.
80 N. Y, 640.) The proposition assert
ed IN Stearns v. Field, 80 N. Y, $40 is
as follows: IF testimony of an
| expert is proper, counsel may ask a
hypothetical question, assuming the
existence of any state of facts which
the evidence fairly tends to justify.
An error in the assumption does not
make the interrogatory Objectionable,
II 1t is within the possible or probable
range of the evidence. And it seems
that such a question is not improper,
because it includes only part of the
facts in evidence" Getting among other
cases Cowley v. People, SO N. Y, AGA. }
In Cowley v. People, supra, the learned
judge says, Another question raised
is as to the admissibility of the hypo-
thetical question put to medical ex-
perts sworn as witnesses. The claim
is that the hypothetical question may
not be put to the expert, unless it
states the facts as they existed. 1t is
manifest if this is the rule, that in a
trial where there is dispute as to
the facts, 1t can be settled only by
| the jury, and there would be no room
for the hypothetical question. The
very meaning of the word is that it
| supposes, assumes something for the
time being. Each side in the issue of
facts has it's theory of what is the
true state of the facts and assumes
that it can prove it to be so to the
| satisfaction of the jury, and so as
suming, shapes hypothetical questions
experts accordingly; and such is
the correct practice" Getting Erick-
son v. Smith, 2 Abb. ct. App. Dec, Ga;
People v. Lake, IL N. Y. 1858; Seymour
v. Fellows, n i'd, 17S.)
Counsel for appellant do not contend
that the State did not submit to the
expert full case as the basis of his
opinion, and if this contention is made,
it is not true. The contention is that
counsel for the State submitted case
based upon its testimony, exclusive of
that for the defense, and obtained the
opinion of the expert, and then pro-
ceeded to submit to the expert a case
! based upon all the evidence; and that
the opinion should not have been
given until full case had been sub
mitted. Not that full case was not
submitted, but that it was not sub
mitted until after an answer was given
| by the expert. Nor is it commended
that counsel for defendant did not
submit a full case to the expert and
obtain his opinion thereon. The bill
of exceptions shows that this was
done. Now then, a cause based upon all
| the evidence was presented to the eX-
pert by counsel for the defendant as
we'll as counsel for the State. This be-
ing so, we can not hold that the an
swer, which was obtained under the
above circumstances, should be held
error for which this judgment should
be reversed. Suppose counsel stating
the hypothetical case should uninten-
tionally or through ignorance, omit to
embrace therein a fact relevant to the
question of sanity, and the opposing
party should object because all the
facts are not embraced within the ny
pothetical case, calling attention to no
fact omitted, would he be permitted to
complain? Should the judgment be
reversed because of such error, if this
should be error. Certainly no. If
every fact which is relevant must be
included in the hypothetical case, to
authorize an answer from the expert,
then we assert there are but few law
yers, If any, in this State or elsewhere,
who have the capacity to correctly
submit a hypothetical question of this
character Taking case in which
there are a great number of witnesses,
each swearing to acts and CONVERSE
lions of the accused covering a great
number Of years, to all manner of So
cial and business transactions, to his
facial expression, etc., who would be
able to Gull from this huge mass of
testimony that which was relevant to
the question of sanity, and submit it
to the expert, without emitting some
fact that perhaps would be pertinent to
the issue of sanity? Failure would be
inevitable, and to permit the opposing
party to object because all of the facts
were not embraced in the hypothetical
case and on appeal reverse the judg-
ment on this account, would result in
the reversal of all judgments, in this
character OF cases, or altogether de-
prive the party of the benefit of expert
testimony on hypothetical case This
being the probable result of such
rule, with much greater reason should
we hold, where, as in this case full
case has whether by the State or the
defendant) been submitted as the
basis for an answer, that there would
be no error and especially no rever-
sible error.
We are not treating of a case in
which the expert gave an opinion with
out hearing all Of the evidence. This
was the question discussed in Webb v.
State, 8 ct. APP. Rep, 400, and in
Leach v. State, % App, 279, referred
to by counsel for appellant. Judge
White in his opinion in the latter case,
says: where the expert has not
heard the evidence, each side has the
right to an opinion from the witness
upon any hypothesis reasonably con-
sistent with the evidence, and if
meagerly presented in the examina-
ton on one SIDE. it may be fully pre-
sented by the other. The whole ex-
animation being within the control of
the court, whose duty it is to see that
it is fairly and reasonably conducted"
1t would seem that the learned judge
below had this case in mind in the
trial of the case now before US.