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(273 S.W.)

court has repeatedly held that you can in- and the explanation thereof, and under the terrogate the defendant while a witness up- circumstances of this particular case, that on the stand as to other felonies charged the state was authorized to introduce eviagainst him for the purpose of impeaching dence of the general reputation of said withis testimony and to affect his credibility. ness for truth and veracity. In Branch's P. This court has also held that it is improper C. § 184, it is stated: to go into the details of such cases, but in this particular instance we see no error from the qualification made on the bill by the court, as it appears that said witness volunteered said information as to his conviction and to having served said time in the penitentiary.

[3] The appellant complains of the action of the court in permitting the state's counsel to ask the witness Beard, the witness for the defendant, on cross-examination, if said witness did not testify on a former trial of this case, and if he did not say that the defendant was sick on November 20, when the defendant was charged with selling liquor to one Lillard Hill, and to the action of the said attorney in reading the names and the places to the said witness from said indictments; said objection being that the jury might consider same as original evidence of guilt. This testimony in effect was already in, as heretofore shown, relative to the defendant being indicted, and we fail to see any error in the action of the court in

this particular. Furthermore, the charge of the court limited the testimony to the other alleged charges of crimes and conviction of the defendant to impeachment purposes and to affecting the credibility of the defendant's testimony which should have removed all doubt from the minds of the jury as to the purpose for which such testimony was ad

mitted.

"Either side is entitled to prove the general reputation for truth of a witness who has been impeached, or sought to be impeached, by proof of contradictory or partly contradictory statements"-citing many cases, including Dixon v. State, 15 Tex. App. 272; Graham v. State, 57 Tex. Cr. R. 109, 123 S. W. 694; Myers v. State State, 66 Tex. Cr R. 270, 146 S. W. 916. (Tex. Cr. App.) 101 S. W. 1000; Dickson v.

Counsel for appellant complains of the action of the court in permitting the district attorney in his closing argument to the jury to state:

"I want to know in all good conscience if the time is coming in Lamar county, Tex., when 12 good white men like you will sit on the jury and believe 3 or 4 black negroes in preference to one good white boy."

court states that counsel for the appellant The qualification made to this bill by the in his argument to the jury stated:

"It is true in this case that the defendant is a negro, and that his witnesses are also negroes, but I would rather believe them than the white boy, Clyde Lewis, any time and in any manner. Just look at old black Tom Beard, a more truthful negro never lived; compare him with Clyde Lewis, who is white only in color. A year from now you will know which one is telling the truth about this transaction and you will find it to be these negroes instead of Clyde Lewis."

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And several other similar statements included in the explanation of the court, and, in reply to that, the court states that the district attorney stated to the jury that it was their privilege to believe any witnesses in the case, whether black or white, but that he did not believe that 12 men like them in Lamar county would disregard the white boy's testimony, as the defendant's counsel called him, and take the negroes' testimony

ter than the defendant's counsel had given in his argument.

[4] Appellant complains of the action of the court, as shown by bill of exception No. 4, in permitting the state's attorney to introduce witnesses showing the good reputation of the prosecuting witness Clyde Lewis, because it is stated that the state could not bolster up the testimony of said Lewis by proving his good reputation for truth and veracity. The court, in qualifying this bill, states that the defendant's counsel, on cross-in preference, without some good reason, betexamination of said witness Lewis, who was a boy 19 years of age, asked said witness about his brother, Dock, and if he (said witness) was not a witness in his brother's case, and if he had not been summoned in said case, and asked said witness about having been arrested by the officers himself for having liquor in his possession, and if he hadn't made a trade or offered a trade by the state that, if he would tell where he got the whisky, they would let him go, which the witness denied, and asked the witness relative to his father having been arrested for bootlegging, and gave the witness a severe crossexamination on alleged contradictory statements he had made in testifying on a former trial of this case. We believe from the bill 273 S.W.-55

We see no error committed in this particular, and we think that the argument made by appellant's counsel authorized the reply made by the attorney for the state.

After a careful examination of the record in this case, we are of the opinion that the defendant has had a fair trial, and no reversible error is shown, and that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing. MORROW, P. J. An examination of the motion for rehearing leaves us of the opinion that on the original hearing the proper disposition was made of the case.

We understand that the rule stated in Walker's Case (Tex. Cr. App.) 72 S. W. 401, was not transgressed. That case but exemplified the familiar rule that, when one is on trial for an offense, the proof of other offenses committed by him is not to be received, unless brought within some of the exceptions to the rule excluding such testimony. The rule does not exclude, but, as announced by many of the decisions of this court, expressly sanctions the proof of other offenses of the grade of felony or involving mòral turpitude upon cross-examination of the witness, whether the accused or not, for the purpose of discrediting his testimony. See Branch's Ann. Tex. P. C., § 168, and many cases therein collated; also Lights v. State, 21 Tex. App. 313, 17 S. W. 428.

In the present case, the evidence of other offenses, both as to the appellant and his witnesses, was adduced upon cross-examination. In the appellant's cross-examination of the witness Lewis, many misdeeds and self-contradictions were imputed to him; also the commission of criminal acts including a charge of violating the prohibition laws. In receiving evidence supporting the witness as to his good reputation for truth and veracity, we are of the opinion that the learned trial judge is sustained by the authorities. See Coombes v. State, 17 Tex. App. 264; Farmer v. State, 35 Tex. Cr. R. 270, 33 S. W. 232; Luttrell v. State, 40 Tex. Cr. R. 659, 51 S. W. 930.

[5] According to the bill of exceptions complaining of the argument of counsel, the question of the color of the witness was first adverted to by the appellant's counsel. If the remarks criticised are properly the subject of complaint, they are excusable upon the rule that they were invited. See Branch's Ann. Tex. P. C. p. 205, and numerous cases there cited, including Baker v. State, 4 Tex. App. 229; Pierson v. State, 21 Tex. App. 60,

17 S. W. 468.

The motion for rehearing is overruled.

BELL et al. v. BLACKWELL et al.
(No. 8646.)

(Court of Civil Appeals of Texas. Galveston.
April 1, 1925. Rehearing Denied
May 7, 1925.)

1. Evidence478(1)—Nonexpert witnesses properly permitted under facts to testify as to mental condition.

In will contest, nonexpert witnesses, who had long known testatrix, held properly per

mitted to testify that from their observations they had discovered nothing out of the ordinary in appearance of testatrix, her actions or conduct, as such matters related to her mental condition.

2. Evidence 478(1) Rule of nonexpert's testimony as to mental condition, stated.

One who has known testatrix intimately for long time with full opportunity to observe her appearance, action, and conduct may state, not only things which to them would indicate change in her mental condition for the worse, but, to show soundness of mind, that there was no change in her mental condition during his acquaintance with her.

3. Insane persons 2-How Insanity and unsoundness of mind shown by appearance and proof of acts and conduct, stated.

Insanity and unsoundness of mind may be shown by appearance and proof of acts and conduct out of the ordinary, which, to one of ordinary intelligence, would indicate abnormal state of mind, insanity, or unsoundness of mind.

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7. Wills 330 (1)—Charge defining "sound mind" held sufficiently comprehensive.

Where will contest was submitted on sole issue of testatrix mental capacity, charge that proponent had burden of proof to show she was of "sound mind," that is, that she had capacity to know and understand what she was

doing, and the effect of her act at the time she executed instrument, and that if she had such capacity her mind was sound, held, sufficiently comprehensive.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Sound Mind and Memory.]

(273 S.W.)

8. Appeal and error 1060(1)—Argument of proponent's counsel misstating law as to mental capacity to make will held not to require reversal.

In view of almost overwhelming evidence of testatrix's mental capacity to make will, error in overruling objection to argument of proponent's counsel that it was not necessary for her to comprehend nature and extent of estate or objects of her bounty and business she was about to transact held, not to require reversal.

Appeal from District Court, De Witt County; John M. Green, Judge.

In the matter of the estate of Sarah Jane Bell. Application of W. A. Blackwell and others for probate of will, contested by J. R. Bell and another.. Judgment for proponent, and contestants appeal. Affirmed.

Richard Waldeck, of Cuero, W. T. Bagby, of Hallettsville, Fly & Ragsdale, of Victoria, and Dougherty & Dougherty, of Beeville, for appellants.

John H. Bailey, H. W. Wallace, and Crain & Hartman, all of Cuero, for appellees.

LANE, J. Miss Sarah Jane Bell died on the 13th day of November, 1922. She left surviving her, as her sole heirs at law, J. R. Bell, a brother of the full blood, W. A. Bell, her nephew, a son of John Y. Bell, deceased, a brother of the full blood, W. A. Blackwell, Sr., a brother of the half blood, and Mrs. Myrtle Black, a niece. She left a will executed in manner and form as required by law, by which she made the following bequests: (1) To the Hillside Cemetery Association, $100. (2) To her half-brother, W. A. Blackwell, 320 acres of land, a part of the D. M. Stapp survey in De Witt county, 431 acres of land, a part of the Gardner survey in said county, two-fifths interest owned by her, in and to lots 5, 6, and 7 and eastern one-half of lot 4, block 75, in the city of Cuero, in De Witt county. (3) To Myrtle Black, her niece, a daughter of her deceased brother, John Y. Bell, and Cary Bell White, also a niece, a daughter of her brother Jas. R. Bell, jointly 2262 acres of land and a tract of 122 acres of land. (4) To Edwin Blackwell, a son of W. A. Blackwell, Sr., an undivided one-half interest in and to two tracts of land, one containing 640 acres, and the other 160 acres. Also all of a 150-acre tract and her home in the city of Cuero. (5) To her nephew W. A. Blackwell, Jr., son of W. A. Blackwell, Sr., an undivided interest in two tracts of land, one of 640 acres and the other of 160 acres. (6) To Jane Bell White and her brother John M. White, daughter and son, respectively, of her niece Cary Bell White, jointly, the sum of $500. (7) To Mrs. W. A. Blackwell, Sr., all of her silverware, which she might leave in her home at the time of her death. (8) To W. A. Blackwell, Sr., all the personal prop

erty which shall remain after a sale of a sufficient amount thereof to pay her debts and other personal bequests made in her will. The provisions of the fifteenth, sixteenth, and seventeenth paragraphs of the will are as follows:

"15. It is my will that in the event of the death of my half-brother, W. A. Blackwell, Senior, before my death, then all of the property in this will bequeathed or devised to him, shall pass to and vest in his heirs at law then living in the same way his separate estate

would vest under the Texas statutes of descent and distribution.

"16. My half-brother, W. A. Blackwell, Senior, has managed my property and affairs for some forty years, to my advantage and profit, and without charge. It is my will that no sort of accounting shall ever be required of him, and that in the settlement of my estate all matters between us shall be considered and taken as fully adjusted and settled and he shall not be held liable, or indebted or obligated to me or my estate in any way, on any account. I know that every transaction he has undertaken for me or in my name has been in the best of faith and without reward, and it is my will that he shall not be questioned in any way in regard to any transaction for me or in my behalf or in my name or any dealings between us, and he is by this will fully acquitted from any and every obligation to me or my estate.

"17. I name and appoint said W. A. Blackwell, Senior, as the executor of this my will, and direct that no bond or security shall be required of him as such, and it is my will that no other action shall be had in the probate court in relation to the settlement of my estate than to probate and record this will and return the inventory, appraisement and list of claims as required by law."

On the 6th day of January, 1923, W. A. Blackwell, Sr., the executor named in the will, filed an application in the county court of De Witt county for the probate of said will. Such application was contested by J. R. and W. A. Bell, upon the grounds: (1) That the testatrix was of unsound mind at the time of executing the will; (2) That the will was the result of undue influence exercised over testatrix by W. A. Blackwell, Sr.; (3) That the testatrix was under the insane delusion that W. A. Bell, generally known as "Al" Bell, was dead. On hearing in the county court, the will was admitted to probate, and the contest was carried by appeal to the district court of De Witt county. Upon hearing in said district court, the will was again admitted to probate. Contestants J. R. and W. A. Bell have appealed to this court.

The appellants admit that the evidence admitted was amply sufficient to support the finding of the jury that the testatrix was of sound mind at the time of the execution of the will, but they predicate their appeal on their contention that the court erred: First, in permitting several witnesses to give their opinion relative to the soundness or unsound.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ness of the mind of the testatrix; second, to give their opinion as to the feeling the testatrix had for W. A. Blackwell, Sr., and his sons, Edwin and W. A., Jr.; third, in giving an erroneous charge defining what would constitute an unsound mind in such cases; fourth, in refusing to give to the jury their requested charge defining what constituted a sound mind in such cases; and, fifth, that the judgment should be reversed because of certain argument made to the jury by counsel for the proponent.

Whether the will was executed in the manner and form as required by law, and whether it was the result of undue influence exercised over the testatrix by W. A. Blackwell, Sr., are questions not presented for our determination by the appellants. We shall therefore make no further mention of such matters.

By their first assignment, appellants insist that the court erred in permitting Berthold Schiwetz, over the objection of appellants, to answer, "There was nothing," to the following question: "Please state if there was anything out of the ordinary in the appearance of Miss Sarah Jane Bell, her action or conduct, with reference to whether she was a normal person and in possession of her mental faculties or not." The objection being that the question was leading and called for a conclusion of one who had not been shown an expert.

street and in the city of Cuero on which he and the testatrix had lived for 30 years; that he passed her house almost daily for many years, and had often had talks with her, and had had many business transactions with her; that he daily had conversations with the testatrix, and testified, without objection, that her mind was rational; that she was very alert and quick; that she was bright and emphatic. He also testified that he was a witness to her will; that testatrix, in his presence, discussed with her attorney, who prepared the will, its contents; and that at that time her mind was alert and quick.

Mrs. McClanahan testified that she had lived two blocks from the testatrix from 1890 to the time of the death of testatrix; that she had visited the testatrix often; that she would probably see her every three weeks and sometimes oftener; that she was at the home of the testatrix and saw her about three weeks before she died; that she never, on any of her visits observed any irrational conduct on the part of the testatrix; that at all times when she saw testatrix, her mind seemed perfectly clear; that she did not see anything that indicated in the least that her mind was not clear and that she was not at herself; that from her observations and her associations with testatrix, she thought the mind of testatrix was perfectly sound; that she never saw her when her mind did not seem perfectly sound; that she never saw her when her mind was anything but normal.

Mrs. Davidson testified practically the same as Mrs. McClanahan.

And by their second assignment, they complained of the action of the court in permitting W. K. Breeden, Mrs. McClanahan, Mrs. Davidson, Mrs. Seeligson, C. A. Waldeck, Mrs. Staerker, Mrs. Jones, Mrs. Breeden, Mrs. Cocke, Mrs. Donohue, and O. T. McAllister to Mrs. Seeligson testified that she had lived testify, over their objection, that they had not in Cuero 40 years or more about two blocks upon any of their visits to Miss Sarah Jane from where Miss Sarah Jane Bell lived, that Bell observed in her conduct or conversation she visited Miss Bell often, that she visited anything which led them to believe that there her during the year of 1922, and that she was something wrong with her mind, or any- conversed with her and observed her conthing out of the ordinary with reference to duct and demeanor and condition. She tesher mind; the objections urged to such testified that from her association with the testimony being that the same was the conclusion of the witnesses such as only an expert witness could give.

As the two assignments, 1 and 2, present practically the same question, we shall consider them together.

It is now insisted by appellants substantially that the witnesses mentioned should have been confined in their answers to the statements of whether from their observations and conversations with testatrix they judged her to be of sound or unsound mind,

and that they should not have been permitted to go further and state that she was a normal person in possession of her normal faculties and that there was nothing so far as they observed out of the ordinary in her appearance, her actions, or her conduct. There is no merit in appellants' contentions.

The witness Schiwetz testified that he was

tatrix, her observation of her, and her conversations with her in the spring of 1922, the mind of Miss Sarah Jane Bell was the same as ever as far as she could judge; that it was sound; that the witness saw nothing out of the ordinary about the testatrix during any of her visits; that the testatrix had never noticed any change in the mental faca very strong will power; and that witness

ulties of testatrix. She also testified that

Miss Bell loved Edwin Blackwell and W. A.
Blackwell, Jr., very dearly.

C. A. Waldeck testified that he had lived in Cuero about 6 or 7 years, and that his home was separated from that of Miss Sarah Jane Bell only by a fence; that he had known Miss Bell approximately 6 years; that during the 6 years he knew the testatrix he would see her once or twice a week

(273 S.W.)

that during all that time on an average of was cordial; that she visited the testatrix once a week he had frequent talks with tes- several times a year; that she visited her tatrix, and that from his knowledge of Miss in the year of 1922; that during this visit Bell, from the conversations he had with her, she and the testatrix discussed old pioneer and the different matters, in the opinion of days; that the testatrix spoke of Mr. W. A. the witness, the mind of the testatrix was Blackwell, Sr., with deep affection, and called sound; that he could not notice any mental him "Brother Willie"; that she told witness change in the testatrix during the 6 years that as a child W. A. Blackwell, Sr., had he knew her; that her mind was just as slept in her bed, and that now in her old age active the last time he saw her as it was the he was taking care of her and good to her; first time he saw her. that from her observation of Miss Bell and her acquaintance with her, and the conversation she had with her, in her opinion Miss Bell was in absolutely sound mind and that her mind was in this condition in March, 1922; that witness saw no mental change in the condition of testatrix from October, 1921, to that in March, 1922.

W. K. Breeden testified that he was 64 years of age; that he was engaged in the mercantile business, and had been so engaged for 35 years in the town of Cuero; that his home was just across the street from the home of Miss Sarah Jane Bell; that he had lived at that place for 43 years; that he had known Miss Bell for 30 years; that they were intimate neighbors; that he visited the testatrix during the year of 1922; that the mental condition of testatrix was perfectly good and sound in his judgment; that on his last visit to the testatrix, which was in the summer of 1922, a few months before her death, she talked to him about various and sundry subjects; that on that occasion he observed nothing out of the ordinary in regard to the mental condition of testatrix; that she was as natural as ever; that mentally she was as bright as she had ever been; that she was of a very resolute character and a woman of strong convictions. He also testified that he visited Miss Bell in 1914, at the time Miss Bell executed a formal will; that Miss Bell's mental condition was always, in his judgment, excellent, absolutely sound.

Mrs. Staerker testified that she lived in Cuero, and had lived there for 50 years; that she had known the testatrix for 45 years or more; that she and the testatrix were very intimate; that they had visited one another frequently; that she visited Miss Bell, the testatrix, in 1922; that at this time she was contemplating an early trip to Germany, and on that occasion she and the testatrix discussed many subjects; that testatrix expressed regret that witness would be gone on her trip so long; that from her observation of Miss Sarah Jane Bell and her conversations with her, there was never such a thought entered her mind that Miss Bell could be classed as of unsound mind; that she was as sane as she was; that when she saw her in May, 1922, her mind was in absolutely the same condition as at all times before; that she seemed quite as natural to her as she ever was; that on said last-mentioned visit she noticed absolutely no difference in the mental condition of Miss Bell as compared to what it had been for many

years.

Mrs. Jones testified that she had known Miss Sarah Jane Bell practically all her life; that she played at Miss Bell's home as a child; that the intimacy between them

Mrs. Cocke testified substantially to the same facts as did the witness above mentioned.

Mrs. Donahue testified that she had known Miss Bell, the testatrix, all her life; that she knew her some 30 years; that she had visited her many times, and in 1902 witness went to live in the home of Miss Bell and lived there for two years, and she felt towards Miss Bell as though Miss Bell were her own aunt; that after she removed from the home of Miss Bell, she had occasion to see her many times, the last time in July, 1921. She testified that she and Miss Bell had conversed on different things; that from her observation of Miss Bell in July, 1921, and from her conversations with her and knowledge of her, it was her opinion that the mind of the testatrix was absolutely sound; that there was nothing in the conduct, attitude, or conversation that made witness think that her mind was not natural or was unsound; that there was nothing on any of the visits out of the ordinary in the conversation and conduct of the testatrix indicating that she was of unsound mind; that testatrix was a very strong-willed person; that she knew her own mind absolutely and what she wanted to do; that she had a very deep love for W. A. Blackwell, Sr., and loved Edwin Blackwell like a son; that she also loved W. A. Blackwell, Jr., like a son; that she helped to bring the boys up; that she had been very much hurt with Jim Bell, Sr. (contestant), for many years.

O. T. McAllister testified he had lived in Cuero since 1894; that he was manager of the Electric Light Company; that he saw Miss Bell three or four months before her death; that he had business with her; that he had conversed with her about different matters; that he saw her about three months before she died; that, in his opinion, the mind of the testatrix was sound; that there was nothing that he could call to his mind that was in any way irrational.

There were many other witnesses who testified to practically the same facts as did

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