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In Brock v. State, 206 Ga. 397, cited in the majority opinion, Mr. Chief Justice Duckworth, speaking for the court, laid down the rule that it was error to refuse to permit witnesses to state their opinion that the accused was insane, based upon a state of facts testified to by them.
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16904.
JANUARY 13, 1950.
Murder. Before Judge Nichols. Floyd Superior Court. September 8, 1949.
C. T. Culbert, for plaintiff in error.
Eugene Cook, Attorney-General, W. T. Maddox, Solicitor-General, and Frank H. Edwards, contra.
1. The nonexpert witnesses testified in substance that they had known the accused, had seen him, had been with him, and had observed his conduct. It was error to refuse to allow the witnesses to give their opinions, based upon these facts, that he was insane.
2. A written request to charge must be free from imperfections. Where such a request is an unsound statement of the law, it must be refused.
3. The evidence by the State, showing the commission of the crime by the defendant in the manner alleged in the indictment, authorized the verdict.
No. 16904. JANUARY 13, 1950.
Henry Brock, alias Son Brock, was tried in the Superior Court of Floyd County upon an indictment charging him with killing Mrs. Henry Brock on December 28, 1948. The evidence of the State showed that there were a number of eyewitnesses to the shooting, and that immediately preceding the shooting the accused had intercepted the deceased, who was his estranged wife, and her lady companion while they were out walking. On this occasion he attempted to get his wife to talk to him, but she refused. Finally he approached them on a bicycle, and after stopping and asking the deceased whether she knew that he was going to kill her, her reply being in the negative, he raised a shotgun to his shoulder and fired in the direction of the deceased. She then slowly turned her back on him, lay down in the street, and died shortly thereafter. A physician who examined the body testified that there was a wound in the left arm and chest; the wound in the chest had apparently been inflicted by a shotgun blast, and had produced death immediately.
On cross-examination one of the witnesses for the State testified that he had known the accused, and had observed his conduct. The witness recounted some of the peculiar conduct of the accused, and based upon this knowledge stated, as his opinion, that the accused was insane.
The defendant in his statement recounted his experience and grief at his wife's refusal to live with him or let him keep their son, and his many efforts to persuade her to return home. He stated that he loved her, that when she refused to talk to him his mind went blank, and that he did not know that he had killed her.
The jury returned a verdict without any recommendation. The defendant filed a motion for new trial, which was later amended by adding three special grounds. The first special ground comprises seven pages of the record, which consists of questions propounded by the counsel for the accused to a number of witnesses, their answers thereto, objections of the solicitor-general, and the rulings of the judge sustaining the objections. It also contains a number of questions propounded, objections which were sustained, the statement of the accused's counsel of what answers he expected the witnesses to make, which was in substance that they knew the defendant, had been in his presence, had observed his conduct, and that their opinion, based on the above, would be that the accused was insane. The complaint made is that the court erred in disallowing such evidence.
The second special ground is an exception to the refusal to charge a timely written request which is as follows: "The statute leaves it in the discretion of the jury as to whether they recommend imprisonment for life in the penitentiary of a person convicted of murder; it is not limited or circumscribed in any respect whatever. This law does not prescribe any law by which the jury may or may not exercise this great discretion."
The third, and final, special ground excepted to a portion of the charge wherein the jury were instructed that they were responsible for the truth of their verdict, but not for its consequences.
The exception here is to the judgment overruling the motion for new trial as thus amended.
1. The first special ground of the amended motion for new trial involves the question of when a nonexpert witness shall be allowed to give testimony in the form of an opinion as to the sanity of a person. A decision of this question requires a determination of whether it is the province of the judge or the jury to decide when sufficient facts have been shown to authorize testimony in the form of an opinion based thereon. The complaint here is because of the disallowance of opinion testimony of a number of nonexpert witnesses that the accused was insane; the factual basis laid for such opinion evidence being in substance that the witnesses had known the accused, had been in his presence, and had observed his conduct.
In the consideration of this case we have given much thought and study to the question of precisely what facts will, under the law, constitute a sufficient basis for the introduction of opinion evidence of nonexpert witnesses as to the sanity or insanity of another person. In Frizzel v. Reed, 77 Ga. 724, this court held that the opinion of nonexpert witnesses as to the sanity of Mrs. Jacobs, following testimony that they "knew the grantor, saw her and heard her talk," was admissible, and that it was for the jury to determine whether the reasons of the witnesses were satisfactory or not. Again in Hubbard v. Rutherford, 148 Ga. 238 ( 96 S.E. 327), it was held that "The sufficiency of the reasons of the witness for his opinion is not a question for the court, but for the jury." This statement was followed with the further statement that the jury should decide that question in estimating the weight to which the opinion is entitled. This same principle has been held and applied in numerous cases, among which are Herndon v. State, 111 Ga. 178 ( 36 S.E. 634; Proctor v. Pointer, 127 Ga. 134 ( 56 S.E. 111); Glover v. State, 129 Ga. 717 ( 59 S.E. 816); Mosley v. Fears, 135 Ga. 71 ( 68 S.E. 804); Harris v. State, 155 Ga. 405 ( 117 S.E. 460); Pennington v. Perry, 156 Ga. 103 ( 118 S.E. 710); Dyar v. Dyar, 161 Ga. 615 ( 131 S.E. 535); Espy v. Preston, 199 Ga. 609 ( 34 S.E.2d 705).
The law as thus stated is sound provided it is held strictly to what it says. It means and says that, when facts sufficient to authorize the introduction of opinion evidence of a nonexpert witness as to the mental condition are shown, such opinion evidence may be introduced. It is then the province of the jury to determine whether or not the facts upon which the opinion is based are sufficient to authorize the opinion; hence what weight the jury will give to such opinion evidence. None of the decisions above cited holds that it is the province of the jury rather than that of the judge to determine in the first instance whether or not sufficient facts have been shown to authorize the introduction of such opinion evidence. It is the province of the judge in all instances to determine the admissibility of evidence. But it is the province of the jury to determine what weight shall be given to the evidence that has been admitted. The first exhaustive study and clear statement of the rule which we have been able to find that this court has made is found in Potts v. House, 6 Ga. 324 (4). It is there stated as follows: ". . having stated the appearance, conduct conversation, or other particular facts, from which the state of the testator's mind may be inferred, they are at liberty to express their belief or opinion, as the result of those facts." We consider the words, "from which the state of the testator's mind may be inferred," as found in the rule, as being essential to the safety and soundness of it. It is thus made necessary, not only that the witness state some facts upon which his opinion is based, but that he state facts from which the condition of the mind may reasonably be inferred. By this is meant facts which by their nature may reflect the condition of the mind, and it is for the judge to determine if such facts have been shown before the witness is allowed to testify as to his opinion based thereon. It would make a mockery of the court if the trial judge should be required by rule of law to allow witnesses, after stating facts that could not possibly reflect the mental condition, then to give nonexpert opinions based thereon as to the condition of the mind.
As in many of the cases above cited, the factual basis for the opinions did not necessarily reflect the condition of the mind, but they were of a nature that they might possibly do so, and this was held sufficient to authorize the nonexpert witness to give an opinion based thereon. However, we have found no case where this court has held that, when wholly irrelevant facts have been stated, the nonexpert witness must then be allowed to give his opinion as to the condition of the mind based upon such irrelevant facts. Such is not the law.
It may be noted that we held in Espy v. Preston, supra, that the facts there were sufficient to allow the nonexpert witnesses to give opinion evidence based thereon as to the mental condition. That opinion in division 5 held that the evidence was insufficient to support the verdict, which was in harmony with the opinion evidence. Chief Justice Bell and the writer dissented from the ruling made in division 5 because, having concurred in the ruling holding that the opinion evidence was admissible, we were of the opinion that after such a ruling it became the exclusive province of the jury to determine the sufficiency of the facts to authorize the opinion of the witness. In Orr v. Blalock, 195 Ga. 863 (4) ( 25 S.E.2d 668), this court held that the opinion of nonexpert witnesses did not show testamentary incapacity. All the Justices concurred in that ruling. It did not appear there that any objection had been interposed to the introduction of the opinion evidence, and hence there had been no adjudication of its admissibility. We regarded the facts upon which the opinion evidence was based as wholly insufficient to reflect the condition of the mind and to enable the witnesses to draw any inference as to the condition of the mind; consequently, the evidence was without probative value, and although admitted without objection, it was insufficient to support any finding of the jury. See Claybourn v. State, 190 Ga. 861 (1) ( 11 S.E.2d 23). The opinion in Brumbelow v. Hopkins, 197 Ga. 247 ( 29 S.E.2d 42), resulted from similar consideration.
Applying the foregoing principles of law to the facts here, it must be held that sufficient facts were shown to authorize the introduction of the opinion evidence offered, and that the court erred in overruling this ground of the motion for new trial. While the law requires proof of insanity at the time the crime is committed in order to authorize the defendant's acquittal, this may be done by proof of insanity before or after the crime was committed, under circumstances where it may be found from such proof that insanity existed at the time the crime was committed.
2. There is no merit in special ground two of the amended motion for new trial. While the law requires that a correct written request to charge, which is adjusted to the evidence and is a sound statement of the law, when timely made, must be given in the language requested. Yet it is also the law that such request must be free from inaccuracies and imperfections. The request here is imperfect, in that in the last line thereof in referring to the discretionary power of the jury it is called a "great discretion." While it is the law that the jury in such cases has the unrestricted right to exercise its discretion on the question of whether or not it will recommend life imprisonment, yet it is not the law and would be improper for the judge to charge that this discretion is a "great discretion." It is neither great nor small, but simply an honest, conscientious, and sound discretion. The general charge properly instructed the jury on their right to recommend mercy, and it would have been confusing and erroneous to have given the charge as requested. There is no merit here.
3. The evidence, showing by the testimony of eyewitnesses to the shooting that the accused committed murder as alleged in the indictment, without justification, was sufficient to support the verdict, and the general grounds are without merit. The third special ground was not argued, and is considered to be abandoned. However, the charge complained of is a correct one and not subject to the criticism made. See McBurnett v. State, 206 Ga. 59 ( 55 S.E.2d 598).
For the reason stated in division 1 of this opinion, the court erred in overruling the amended motion for new trial.
Judgment reversed. All the Justices concur.