¶1 ON REHEARING.
¶2 February 18, 1920.
¶3 —Responding to the able and forceful presentation of the motion for rehearing on behalf of the State by the Assistant Attorney General and the county attorney of Tarrant County, we have made a careful re-examination of the case,
¶4*493 Touching the criticism of the references in the opinion to the statement of facts, we will not pause to review the office of the statement of facts with reference to questions of law presented on appeal, further than to reiterate what has often been said, that the bill of exceptions should be sufficient without the aid of the statement of facts to disclose the error complained of—Davis v. State, 4 Texas Crim. App., 645—adding that where the record contains a statement of facts, and the bills of exceptions are prepared and filed in accord with the statutes, the court will not feel called upon to give to the rules relating to their construction an effect so restrictive as to defeat the purpose of the law requiring bills of exception. The statute, Article 2059, declares that no form shall be required, but that the objection to the ruling shall be stated with such circumstances, or so much of the evidence, as may be necessary to explain it, and no more, and the whole as briefly as possible. Article 2060 provides that reference may be made to the statement of facts. In a criminal case it is necessary to read the statement of facts to determine the sufficiency of the evidence before an affirmance can be ordered; and touching the practice of this court throughout its history to consider the legal questions presented in the light of the facts, we quote the remarks of a learned law writer: “The Texas court of criminal appeals always considers the entire record, weighing, analyzing, and thoroughly digesting all the evidence before applying the law to the case in hand.” Wharton’s Criminal Evidence, vol. 1, p. 491, note.
¶5 Concerning the rules of practice, it was said in substance by Chief Justice Phillips of the Supreme Court that they are not intended to encumber the courts with technical and arbitrary requirements, or to enjoin such rigid adherence to them as precludes their observance by reasonable and substantial compliance. Railway v. Pemberton, 106 Texas, 466.
¶6 Looking alone to the bills of exceptions, we are advised thereby that the witness Estes had known the appellant since his youth; that he visited in the jail the morning after the shooting, and observed his physical condition and his demeanor. He offered to testify that he observed the expression of the eyes of accused; that it was vacant and glaring—“a vacant stare, almost expressionless;” that he “did not appear to be conscious of what was going on, or interested about the presence of the witness, or solicitous for assistance, or anything of that kind;” that compared with his previous condition he was very much reduced in flesh and emaciated, and “he impressed me as being very much torn up;” that he was in a collapsed state physically, very nervous, pale, not able to talk consecutively, not strong and robust as the witness had previously seen him.
¶7 Finney was" shown by the bill to have visited the appellant at the jail the morning after the shooting, and to have been present *494 when the appellant was released on bond, to have taken him home with him and kept him in his house from Monday morning until Thursday. This witness, if permitted, would have testified that during this time the appellant appeared physically collapsed, very nervous and weak, pale, and had no color in his face; and would also have given his opinion that during that time his mind was unsound.
¶8 It is suggested that tested by the bills of exceptions the court’s ruling that neither the witness Estes nor Finney were qualified to give an opinion, because not shown to have possessed such intimate acquaintance or means of observation as would enable them to form an accurate judgment, was correct. To sustain this, the case of Williams v. State, 37 Texas Grim. Rep., 349, is relied on. The evidence proffered in that case was rejected because there were no facts stated upon which it could be based. The court said: “Nothing is stated but the bare fact that they had known him, had spoken to and talked to him, and had some dealings with him. The character of the dealings, the subject of the conversation, whether he talked intelligently or not, in fact nothing of this sort is stated. It is important that the facts upon which the opinion of the witness is given should go to the jury in order that they may have some standard by which to test the value of the opinion given. If the act, conduct, or conversation detailed, to the ordinary understanding, was of a trivial character, it would serve to characterize the opinion given by the witness. On the contrary, if it was of an unusual, eccentric, or extraordinary character, it might be of great value to the jury in passing upon the sanity of the defendant. If the witnesses had stated any fact, such as the conduct of the defendant, conversations with him, some acts of the defendant, however meager they might appear, there would be something upon which to base the testimony—that is, the opinion.
¶9 Presiding Judge Hurt, in Burk’s case, 38 Texas Crim. Rep., 397; “This is not like the Williams case, 37 Texas Crim. Rep., 348. In that case no facts were stated by the non-experts as the basis of their opinion. Here the witnesses give full details of facts.
¶10 It seems apparent from these quotations, that the ruling in Williams v. State, was not based upon the absence of sufficient acquaintance, although it is said therein: “Some of the witnesses had known the defendant for only a brief time, simply acquainted with him, yet they were permitted to give to the jury their opinion as to his sanity without stating any act, conduct, or conversation with him.”
¶11 It is said by Mr. Underhill in his work on criminal evidence, page 311: “No rule can be laid down as regards the amount of knowledge which the non-expert witness must possess. The weight of the opinion is for the jury,” and further “the non-expert must have had some acquaintance with the accused, and some opportunity *495 to observe his conduct, upon which is based the opinion. If it shall appear prima facie that the witness did not have sufficient time for observation his evidence should be excluded.”
¶12 The Supreme Court of Indiana, in Colee v. State, 75 Ind. Rep., 511, said on the subject: “It is true that a non-expert witness must always state the facts upon which he bases his opinion as to the mental capacity of a defendant in a criminal prosecution, and it is also true that it must appear that he has some knowledge of he acts and conduct of the person upon whose mental condition he declares his opinion. The extent of this knowledge has never been defined, and we cannot frame any general rule which will determine just how much or how little knowledge will entitle the witness’ opinion to admission . . . The court cannot decide whether the opinion is of much or little weight; its duty is merely to decide whether such knowledge is shown and such facts stated as entitle the witness to express any opinion at all.”
¶13 In the state of California a statutory rule obtains to the effect that such opinion may be given alone by an “intimate acquaintance.” Construing this statutory rule, the Supreme Court of California has stated that no fixed rule can be laid down to determine who is an intimate acquaintance within the meaning of the statute; and the opinion of witnesses has been frequently admitted in that state, where accompanied with the facts supporting it, on the subject of sanity, when the acquaintance with the party in question extended over a very limited time. See People v. Susser, 142 Cal. Rep., 360; In re Budan Estate, 104 Pacific Rep., 443.
¶14 The question of what are adequate means of observation is not a technical one. Bishop’s New Crim. Procedure, sec. 679; Williams v. State, 37 Texas Crim. Rep., 351. The fact that no conversation with the appellant was detailed by the witnesses whose opinion was excluded is not controlling. This court, through one of its most accurate and learned judges, said: “The deportment, conduct, employment, manner of speech, habits, and all traits and demeanor” are proper elements in the predicate for non-expert opinions. See opinion of Judge Ramsey, Turner’s case, 61 Texas Crim. Rep., 97, 133 S. W. Rep., 1054. In this the previous decisions of this court are but emphasized. Cannon v. State, 41 Texas Crim. Rep., 467; Tubb v. State, 65 Texas Crim. Rep., 622; Lane v. State, 59 Texas Crim. Rep., 603; Burt v. State, 38 Texas Crim. Rep., 397. In fact, such was the view expressed in Williams’ case, supra, the court adopting a quotation, says: “After all, it is the facts which a witness details, the conduct which he describes, which chiefly and particularly constitute the testimony to be relied on.” See the case of People v. Manoogian, 141 Cal. Rep., 593.
¶15 In Holland v. Zollner, 102 Cal. Rep., 633, the court said: “The appearance of a person at a given time is one thing, the opinion of a witness as to his mental condition based upon an intimate *496 acquaintance with him, is quite another, ’ ’ and in People v. McCarty, 115 Cal., 255, a capital case, the jailer who saw the accused on the day of his arrest was permitted to testify that the appellant appeared rational at that time. Buswell on Insanity, p. 255, sec. 247, quotes with approval a decision which contains: “In the ease of insanity a witness may state facts, may give the look of the eye and the actions of the man, but unless he is permitted to tell what they indicate, or, in other words, be permitted to express an opinion, he cannot convey to the mind distinctly the condition of the man that such acts and looks portray.”
¶16 In the instant case, one of the witnesses would have testified that he observed the accused the day after the shooting; that in his eyes was a vacant stare; that they were almost expressionless; that he did not appear to be conscious of what was going on. Another said he appeared physically collapsed, nervous and weak, pale, and no color in his face; and based upon his close observation of him while he cared for him in his own house for several days, offered to express the opinion that his mind was unsound. Another said that he appeared collapsed physically, nervous, pale, not able to talk consecutively. It may be conceded that the facts and details set out in the bills of exception are meager. Not more so, however, than were those upon which the witnesses for the State were permitted to express the opinion that appellant was sane. One of these, Willburn, arrested the appellant after the shooting. Asked what appellant said, the witness replied: “Oh, nothing much, he said something like ‘I loved those two brown eyes better than I loved my own life;’ ” that he ran his hand in his pocket and said to Mr. Ellsworth: “I owe you $1.50, and here it is.” Another witness, Keller, said that on Saturday before the shooting on Sunday, appellant took supper with the witness and his wife, and later in the evening they took a drive in an automobile; that the appellant didn’t talk much, but talked some. Mrs. Keller also gave her opinion upon the same facts. Another witness saw the ap-. pellant at about 11 o’clock on Sunday preceding the shooting in the afternoon; testified that while she was otherwise engaged, appellant and her husband had a conversation together about. chickens and matters of that kind. The county attorney was asked the following question: “Of course, you took a statement from him that we expect to introduce in evidence here. Did you from his conduct and his conversation there, and his acts in general, notice anything about him that would indicate that his mind was at that time anything other than that of a normal person?”
¶17 All of these witnesses, upon the predicate mentioned, were permitted by the court to give their opinion, at least were permitted by the court to answer to the inquiry that they saw nothing to indicate that his mental condition was other than that of a normal person. The question as to the sufficiency of the predicate, is *497 primarily for the court. We confess our inability to discern in what sense the predicate condemned as insufficient with reference to the witness Estes and the witness Finney was inferior to that which prompted the court to admit the opinions of the State witnesses mentioned. The writer is of the opinion that the use of the word “normal” in the inquiry of the State witnesses was not of such consequence as to condemn the question, inasmuch as the jury doubtless understood the inquiry to be whether his appearance was that of a natural man. See Century Dictionary.
¶18 It was the theory of the appellant that his mind was rendered unsound on account of his weakened and nervous condition, resulting from sickness aggravated by family troubles threatening-separation from his wife and children. This theory was supported by the testimony of witnesses, including his physician. To rebut this theory, the State, among other evidence, used the testimony to which we have adverted. We are aware of no rule of evidence denying the appellant’s right to the testimony of Estes to the facts we have quoted, and his opinion thereon; and, considering the manner in which the case was tried, the evidence ol Finney should have been received.
¶19 From what has been said, it follows that the motion for rehearing should be overruled.
¶20 Overruled.