Charles L. Scott, Plaintiff in Error, v. The State of Florida, Defendant in Error, 64 Fla. 490

Whitfield, C. J. Scott was convicted of murder in the first degree and took writ of error. At the trial the sanity of the accused at the time of the homicide was a material issue, and the court was liberal in admitting evidence in behalf of the defendant. It is contended that alleged errors in charges given misled the jury. A number of non-expert witnesses expressed their opinions as to the defendant’s sanity based upon facts and circumstances testified to by them.

The court charged the jury that: “In this case the defendant has put in issue tile question of his sanity or insanity at the time of the commission of the alleged crime. The court instructs you that you are the judges of the defendant’s sanity or insanity at the time, according to the facts and circumstances of the case as they are in evidence before you.

Non-expert witnesses who know the defendant and are conversant with his acts and doings are allowed to give their opinions, based upon their knowledge of the facts and circumstances of the case, as to the defendant’s mental condition; but at the same time you should bear in mind that such evidence is merely for your enlightenment and consideration and you are the sole judges, yourselves, of all the facts and circumstances and evidence in the case as to the defendant’s sanity or insanity, at the time of the commission of the alleged offense.” In Armstrong v. State, 30 Fla. 170, 11 South. Rep. 618, 17 L. R.

A. 484, this court held that: “Non-expert witnesses cannot express a general opinion as to sanity, nor can they give an opinion independent of the facts and circumstances within their own knowledge; but they can detail the facts known to them which show insanity, and thereupon express opinion as to the sanity of the person whose mental condition is being investigated.

The value of such testimony will depend largely upon the opportunities of the witnesses for correct observation of the appearances and conduct, of the person whose mind is claimed to be unsound, as well as the character of such appearances and conduct.” The following language is contained in the quoted charge: “but at the same time you should bear in mind that such evidence is merely for your enlightenement and consideration,” in the connection in which it is used, may fairly he construed to mean that the opinions of non-expert witnesses as to the sanity of the accused, though based on facts known to the witnesses, have little if any probative force, which is a charge on the weight of the evidence in violation of the statutory provision that the judge “shall charge the jury only upon the law of the case.” In addition to this, the charge is not in accord with the rule announced in the Armstrong case that the opinions of non-expert witnesses based on facts known to them and testified to by them, together with the facts so testified to, are evidence which the jury should consider; and that the probative force or “the value of such testimony (both as to opinions and the facts) will depend largely upon the opportunities of the witness for correct observation of the appearances and conduct of the” alleged insane person.

Similar defects appear in the charge numbered 20 that was given as follows: “20.

The jury in considering the evidence in the case will bear in mind that there is a distinction between facts and circumstances sworn to, and inferences and opinions drawn therefrom, you are not bound even to believe (lie facts and circumstances as sworn to, but you may, if you think they are true, but as to the inferences and deductions and opinions drawn by the witnesses.from the facts sworn to' that is a matter of their belief and opinion, and you are not bound thereby, but should draw your own deductions and conclusions and opinions from the facts and circumstances as related by the witness should you believe them.” The following charge was given: “Moral depravity or moral insanity, so called, which results, not from any disease of the mind, but from a perverted condition of the moral system, where the person is mentally sane, does not exempt from responsibility for crime committed under its influence.” There is no evidence in the record of “moral depravity or moral insanity,” or of a “perverted condition of the moral system” of the accused, and the language of this charge does not appear to have been essential or appropriate to a definition of insanity as it was in issue in this cage.

A charge defining a reasonable doubt contains this: “it is such a doubt as would spontaneously arise from the evidence or lack of evidence.” The use of the “spontaneously” may not be harmful error in every case, but the word is not used in the

definitions of reasonable doubt that have been approved by this court. See Lovett v. State, 30 Fla. 142, 11 South. Rep. 550, 17 L. R. A. 705. On the record in this case it cannot be said that the errors and inaccuracies pointed out in the quoted charges, were cured by other charges given or that they could not .reasonably have misled the jury. ' Where the insanity of the defendant is a real issue in a criminal prosecution, the court should charge the jury that if the defendant is acquitted on the ground of insanity, they should so state in the verdict in order that appropriate action may be taken by the court under

section 3992 of the General Statutes of 1906. See Johnson v. State, 57 Fla. 18, 49 South. Rep. 40. The judgment is reversed and a new trial awarded. Taylor and Hocker, J. J., concur.