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

himself had offered in evidence the man.
ner and appearance of the defendant; the
way he demeaned himself during the trial
as an evidence of his insanity at the time
OF the trial. The defendant had demean-
ed himself quite unusual to an ordinary
individual on such trial, and under these
circumstances the evidence as to whether
or not he was then Intentionally trying to
play part or simulate insanity was adj
mtted, and this question was put to wit
ness, after the hypothetical question stat
ed in other bills, had been answered by
him." From this explanation, it appears
that the appellant entered this field of
evidence by offering instances of his man
ner and appearance and demeanor during
the trial. as evidence of insanity at that
time. PROFESSIONALLY the state could fol-
low him and introduce such evidence as to
this same matter. 1t was evidently the
purpose of the appellant, when introduce
ing this evidence, to convince the jury
that as he was then insane, that the prob
ability was that he was insane at the
time of the homicide. The court was
clearly right in admitting this testimony.
The Hypothetical question was also sub
mitted to this Witness and he answered
that in his opinion the defendant was
sane on the 9th day of July, 1896. The
objections here raised are the same as
hypothetical question submitted to DR..
Wooten, and treated in this opinion above,
and therefore we will not go over this
discussion again.
1t appears from a bill of exceptions at
the request of appellant DR.. Wooten, and
others, went to the Jail. and took the
dimensions of the skull of the defendant;
and while there examined the defendant,
talked to him, looked at him, and observ.
ed him. The state proved by DR.. Woo
ten that it was his opinion that defend
ant was sane ut that time. This bill of ex-
ceptlons refers us to the statement of facts.
When we consult the statement of facts,
we are clearly of the opinion that the OBJ
servations of defendant by Wooten were
amply sufficient to warrant him in giving
an opinion and there was no error in adj
hitting his testimony. Another bill Of
exceptions was reserved to the testimony
OF DIR. Wooten as an expert as to the san
ity OF the defendant, but when considered
in the light of the explanation of the trial
Judge, it presents no error whatever.
Jack Hughes was placed on the stand
for the state, by whom it was shown that
he had noticed the fact that the defend
ant had struck his head against the win
dow frame the day before, as he passed
through the window, and that it was the
only time the defendant had done so in
the many times he had passed through
said window during the trial. 1t appears
that defendant had offered in evidence
the appearance of himself during the trial,
his manner of coming in and going out of
the court room, ETC., as shown by the
statement of facts. This presents the
same question as we have discussed above
in relation to the defendant Stimulating
insanity. We find no error in this mat
ter
After proving by DIR. Smoot that he was
fifty years old, minister of the gospel
| and as such serving the Presbyterian
church in the city of Austin for twenty
years, and that he had read some a,-
thors on moral and intellectual science,
but nothing on insanity or medical juris-
prudence, the appellant proposed to prove
by him that in his opinion the defendant
was insane on the oath day of July, 1885,
the day the offense is alleged to have been
committed, and the state objected because
DIR. Smoot was not an expert. The court
refused to permit the witness to testify
on this phase of the case and we think the
ruling was correct. This witness was Of
fered as an expert, when in fact he was
not an expert 1t was not proposed to
prove his opinion as to whether defend
| ant was sane or insane from what he
knew of the defendant, his associations
| with him, ETC., but simply to obtain his
| opinion as an expert.
We are not informed of any case hold
ing that because a prisoner is in jail I'M
warned, that therefore his conduct can
not be observed so that an expert can give
an opinion as to his sanity. 1t would be
a remarkable case inded in which the ac-
cused, if insane, would simulate sanity.
We can not comprehend how the fact that
he was in Jail could affect his conduct in
this particular in any manner, and there
fore the ruling of the court in regard to
the testimony of DR.. Nj. NJ. Smith was
correct See Adams V. State, 81 Tex
Ct. Req. 40.
The matters contained in the bill of ex-
ceptions in reference to the testimony of
DIR. Goodall Wooten have been disposed
of in treating of the bill of exceptions
relating to the testimony of DR.. Wooten
hereinbefore discussed.
The objection to the testimony of r.
%. White, sheriff, is not well taken. He
had warned the defendant, and after be-
ing warned, anything that the defendant
stated to him was admissible, and he had
right to give his opinion as to the sanity
of the defendant. Having stated detail
ed conversations, facts, acts and his OBJ
servations of the defendant, he was quail
flied to give an opinion. In addition to
tHlS, we VIII HOL DtIOTCeu W ItTuSt tue
statement of facts in order to ascertain
whether the witness qualified himself or
not. AS before stated, it is the duty of
counsel for appellant to set forth the facts
in the bill of exceptions. But to satisfy
ourselves that the learned judge acted
properly, we have examined the testimony
of this witness in the statement of facts
and find him qualified as witness.
Objection was made to the charge of
the court. We think the charge is an
admirable one. 1t was the duty of the
court in defining murder in the first de-
gree or murder upon express malice to
charge the jury, DO the facts and cir
cumstances in this case show such a
reckless disregard of human life as nee
essarily includes formed design against
the life of the person slain? If they do,
the killing, if it amounts to murder,
would be upon express malice" This
charge is amply supported by number of
authorities. If sane, it would be almost
morally impossible for the homicide to
be committed, under the circumstances in
this case (the prisoner having slain his
own wife and two little chidren) without
it being upon express malice. This hon. |
icide, with its attending circumstances,
evinces a reckless disregard of human |
life, which is the conclusive evidence of |
express malice. There was no passion |
attending this homicide and the defend |
ants mind was in the same condition |
when he killed his wife as it was when |