In re Carmichael , 36 Ala. 514 ( 1860 )

STOKE, J.

As this case must be reversed on several of the rulings of the court, after noticed, we will not deciclo whether the verdict was sufficient. We will state, however, that, as no record is made in the probate court of the fact that the person is idiot, lunatic, or non compos mentis, other than that afforded by the recording of the petition and proceedings thereon, it would be the safer and more satisfactory practice to have the verdict in ihe very language of the statute, or its substance. — Code, §2753; Lary v. Craig, 30 Ala. 631.

[2.] We clo not subscribe to the proposition, that the term non compos mentis necessarily denotes a total deprivation or destruction of the intellectual powers. It denotes unsoundness of mind; not mere mental weakness, but a diseased or unhealthy mind. — Code, § 1; Rawdon v. Rawdon, 28 Ala. 567, and authorities cited; McElroy v. McElroy, 5 Ala. 83; Stewart v. Lispenard, 26 Wend. 255; Dew v. Clark, 5 Russ. 163; 1 Jarman on Wills, marg. p. 27, note 1; Stubbs v. Houston, 33 Ala. 555.

[3.] That a person makes an improvident bargain, or many improvident bargains; that he is generally unthrifty in his business, or unsuccessful in one or many enterprises, does' not, per se, prove him to be non compos mentis. These may co-exist .with a mind perfectly ami legally sound. — 1 Beck’s Med. Jar. 745. Such testimony is certainly admissible, in connection with facts and circumstances tending to show mental aberration. Shrewdness in trade, and general success in business, would go far to rebut inconclusive testimony of mental unsoundness. So, improvidence and recklessness in trade would render much more satisfactory and convincing circumstantial evidence which tended to prove mental aberration.

[4.] How far, and under what circumstances, a witness who is not a physician may give his opinion on the question of sauity, is a question which has been frequently before this court. — See State v. Brinyea, 5 Ala. 241; Bowling v. Bowling, 8 Ala. 538; Roberts v. Trawick, 13 Ala. 68; Florey v. Florey, 24 Ala. 241; Powell v. The State, 25 Ala. 21; Stubbs v. Houston, 33 Ala. 555. The following principles seem to be doducible from our decisions; 1st, that a non-professional witness cannot give his opinion on'the question of sanity vel non, except in connection with the facts on which it is based.; 2d, that facts, and particular acts and conduct of the person whose sanity is in issue, are competent evidence to go before the jury; 3d, that to justify the opinion of such witness, it. must appear that he occupied a position toward the person alleged to be insane, which enabled him to form a correct judgment as to his mental condition.

It is not every detail of facts, which will legalize the opinions of witnesses who are not physicians. It is not enough that such witnesses have had a mere passing acquaintance, or brief occasional interviews, on general or indifferent subjects, with the one whose sanity is in question. The acquaintance should be of an intimate character — one which will enable the witness to affirm, with some confidence, that he has a knowledge of the. intellectual workings and mental status of the party about whom he testifies; and even when this is the ease, if the facts and circumstances in proof be merely indifferent or commonplace, such as are frequently witnessed in persons of similar pursuits and intelligence, the opinion of a witness based thereon, that the party was insane, should exert but little (if any) influence upon the minds of the jurors. In the cases of Powell v. The State, (25 Ala. 21,) and Stubbs v. Houston, (33 Ala. 555,) are statements of preliminary proof of acquaintance and of facts, on which we have held the opinions of non-professional witnesses were rightly admitted. In each of these cases, an intimate acquaintance was shown. So, iu the case of Florey v. Florey, 24 Ala. We think the character of the preliminary-proof in the two cases just above stated, will furnish a safe guide in questions of this kind; and that a less intimate acquaintance than deposed to by the first witness brought to our notice in the report, of the case of Powell v. The State, should not be ruled sufficient to lot in the opinions of non-professional witnesses. — Norris v. The State, 16 Ala. 776.

Under this rule, we hold, that the following witnesses laid a proper predicate for the introduction of their opinions to the jury — viz., Geo. Mcl). Patterson, Daniel MeDearmid, Malcolm McMillan, and John B. Brown. The record does not contain enough to show that the opinions of the following witnesses were properly received : Way-man Adair, A. D. Levi, and James II. Joiner. Thomas Smith does not sufficiently express a knowledge of Mr. Carmichael to legalize his opinion as to his sanity; but possibly, on another examination, the preliminary proof may be more full.

[5-6.] The following portions of the evidence; which were admitted against objection, should have been excluded :

The question to the witness Patterson, “ whether or not Daniel Carmichael controlled defendant and his business?”

The question to McDearprid — “Is he not going down hill generally ?”

The answer of the witness McMillan, as to what Daniel Carmichael told him;

The question to wituess Joiner — “What was the defendant’s appearance? was it that of á man of sound or unsound mind?” Also, the evidence of this witness, as to “the impression that the defendant made on his mind?”

The question to the witness Munroe — “Did not Daniel Carmichael enjoin upon you to go with defendant, and see that he executed the process properly?”

The testimony of the witness Malcolm McMillan, that “his mind is sound, so far as I am able to judge from my observations, transactions and acquaintance with him,” seems to have been expressed with scrupulous propriety, and should have been received. -

Dr. Taylor should have.been allowed to express his opinion as to the soundness or unsoundness of Mr. Carmichael’s mind; and should also have been allowed to state whether he had discovered any evidence of unsoundness of mind in Mr. Carmichael. — Thomas v. DeGraffenreid, 17 Ala. 602; Nelson v. Iverson, 24 Ala. 9.

The character of the questions, on cross-examination, to the witnesses Brown and Robinson, was objectionable, if the purpose of that examination was simply to bring out the facts. If the witnesses had betrayed bias, partiality or corruption, we will lay down no rule for cross-examination. That must be, in a great degree, left to the discretion of the presiding judge.

Several of the rulings of the probate court in the final' charge, uot hereinabove noticed, are obnoxious to criticism; but we will not comment on .them further.

Judgment of the probate court reversed, and cause remanded.