By Mr. Thomas: The proof varies from seven to seven six. And it is incorrect in assuming facts not established upon the evidence, that he cut her repeatedly to the extent of about twenty-four times with a knife; and in those respects to which I have called your Honor's attention, the question is improper, in that it assumes facts not proven, that it is improper in form, and the concluding paragraph, with reference to which I have called your Honor's attention, is improper and incompetent; and that the question is incompetent in that it does not call upon the witness to express an opinion as to the knowledge of the defendant of right and wrong, or his knowledge of the nature and quality of the act in killing the deceased. By Mr. McIntyre: That is a question, if your Honor please, which was passed upon yesterday. By the Court: I suppose it is preliminary to some extent, as far as this information is concerned. By Mr. McIntyre: It is precisely the same as yesterday, but the question has had some additions. By the Court: Was that indicated by the last part of it? By Mr. McIntyre: Yes, sir. By Mr. Thomas: He should be asked, "Can you now form an opinion assuming all these facts?"... _Q._ Now, Doctor, assuming all these facts contained in the hypothetical question to have been established by evidence in this case, from your experience in the treatment and knowledge of imbeciles and idiots, from your knowledge and skill as an expert, can you express an opinion as to the condition of Jean Gianini at the time of the killing of Lida Beecher on the 27th day of March, 1914? Same objection By the Court: Objection overruled. He may answer. _A._ I can. _Q._ What is your opinion? Same objection. By the Court: I think it should conform now to the language of the statute, shouldn't it? By Mr. McIntyre: Well, I have, your Honor; I first asked him if he could express that opinion. Now if he doesn't express an opinion that comes within the provisions within the statute, why then of course his opinion is incompetent in this case. Now let's look at the code. Will you give me the section, please? Section 1120. "Offense committed by an idiot or lunatic. An act done by a person who is an idiot, imbecile, lunatic, or insane is not a crime. A person cannot be tried, sentenced to any punishment, or punished for a crime while he is in a state of idiocy, imbecility, lunacy or insanity, or is incapable of understanding the proceeding or making his defense. A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person except upon proof that at the time of the committing of the alleged criminal act he was laboring under such a defect of reason as not to know the nature and quality of the act he was doing or know the nature of the act as wrong." By the Court: Well, now, my suggestion is why not embody that in your question. By Mr. McIntyre: That is the second question, your Honor....