Watson v. State , 161 Tex. Crim. 5 ( 1954 )

MORRISON, Judge.

The offense is murder; the punishment, life imprisonment.

We are confronted at the outset with a motion to strike the Court’s Bill of Exception No. 1, which motion is supported by affidavits. From these we learn that on February 16 appellant presented 50 formal bills of exception to the trial court and that on March 8 the court signed and approved 10 bills, refused 17 bills, and approved and qualified 23 bills. Appellant excepted to the refusal and qualification and secured the signature of the court following his exception. The trial court returned the bills to counsel, as is required by Rule 372 (i), Rules of Civil Procedure, but did not prepare his own bills as required by the same section. On March 16, the last day for filing bills of exception in this cause, the appellant’s attorney filed all 50 bills, which had been delivered to him on March 8, with the district clerk and waited at her office until it closed to ascertain if the trial court intended to file any bills of his own. Some several days later appellant learned that the court had, at 8:45 P.M. on March 16, without any notice to him, filed one bill in which he referred to appellant’s bills by number and attempted to adopt them as the court’s bills and thereby destroy the effect of the appellant’s exception to the court’s qualification.

Appellant asks that we reverse this conviction because he has been deprived of his bystanders’ bills by the action of the court as aforesaid. This we will not do, but will consider appellant’s original bills as if they had not been qualified. Palmer v. State, 154 Texas Cr. Rep. 251, 226 S.W. 2d 634.

Appellant, a 66-year-old widow, killed her 70-year-old bachelor brother, with whom she was living, by hitting him in the head with a stick of stove wood. The only serious question in the case was the sanity of the accused.

At the beginning of the trial the appellant asked that Professor Tedford, a practicing psychologist she intended to use as an expert witness, be excused from the rule. This request the court refused to grant.

The appellant’s testimony consumes 123 pages of the record. She gave the history of her strange life and told of her emotional reactions prior to and at the time of the homicide.

Near the close of her evidence the appellant called Ralph T. Tedford as a witness. He stated that he had five years’ training at Harvard and two years at the University of Texas in psychology and that he had taught psychology for some years prior to going into penal institutional work, where he had spent ten years in psychological counseling in various state and Federal correctional institutions. He stated that he had first seen the accused some time after the homicide. In order to get the witness’ opinion as to the appellant’s sanity at the time of the killing, the appellant was relegated to propounding a hypothetical question which attempted to condense her testimony. The witness was in a measure discredited in the eyes of the jury because at one time he admitted that he was basing his opinion that the appellant did not know the difference between right and wrong on the day in question, in part, upon what appellant’s counsel had told him about the case and not entirely upon the facts set forth in the hypothetical question.

Clearly, we think he should have been permitted to sit in the courtroom, hear the appellant and other witnesses testify, and give his opinion based upon the whole testimony as to her sanity at the time of the commission of the offense.

It has been the rule in English speaking jurisprudence since McNaghten’s case, 10 Clark & F. 200, that a medical man who has been present and heard the evidence may be asked whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapable of distinguishing between right and wrong.

In Johnson v. State, 10 Ct. of App. 571, we find the following:

“When medical experts are called solely as such, the better and most satisfactory practice would be to allow them to remain in the room and hear the testimony of all the other witnesses, in order that from the whole testimony they may be able to determine from the evidence itself the matter upon which their opinion is desired.”

This is the rule followed in a majority of the jurisdictions. See 39 L.R.A. 310 (n).

We think it logically follows that a ruling of the court which deprived the appellant of this admissible evidence should be held to be reversible error. This court has with uniformity refused to disturb a jury verdict on the question of sanity, but it is our duty to reverse a conviction where the jury, as here, has been deprived, by an erroneous ruling of the court, of admissible evidence on the question of sanity.

We are not unmindful of the fact that Tedford was not a psychiatrist. He did have, however, considerable training and experience in analyzing motivation for human conduct. A psychiatrist is certainly best qualified to pass upon a question of mental illness. However, we have consistently accepted the testimony of medical doctors as experts. We think that also of those qualified to give an opinion, superior to that of a layman, would be a practicing psychologist, and that Tedford should be classified as an expert. See concurring opinion of five Justices of the Supreme Court of Michigan in People v. Hawthorne, 291 N.W. 205.

It must be remembered that the trial court found Tedford qualified as an expert when he permitted him to answer a hypothetical question. His error was in not giving application to the rule in McNaghten’s case, supra.

Formal Bill of Exception No. 23 and Informal Bill No. 19 relate to proof by the state of the good reputation of the deceased. Appellant did not attack the reputation of the deceased. In Moore v. State, 46 Texas Cr. Rep. 54, 79 S.W. 565, and Keith v. State, 50 Texas Cr. Rep. 63, 94 S.W. 1044, we reversed the conviction because the state proved the good reputation of the deceased for being a law-abiding citizen when that reputation had not been attacked by the accused.

Formal Bill of Exception No. 41 and Informal Bill No. 13 relate to the court’s refusal to admit in evidence a certificate of Dr. Rowell, Superintendent of the Terrell State Hospital, certifying that the records of such institution revealed that J. A. Drey (Dray) (the appellant’s father) was admitted to such institution in 1890, diagnosed mame, acute, and that he died in such institution in 1915. If upon another trial the relationship between appellant and this patient is shown, the public record or certified copy thereof of the hospital should be admitted. Article 3731a, V.A.C.S.

For the errors pointed out, the judgment of the trial court is reversed and the cause remanded.