These questions will be considered in their order.

1. As to the jurors. E. D. Waffle was called as a juror and questioned by the defendant's counsel, testified in substance that he was in Tombstone the day of the shooting and heard of that fact, and that he had some opinion as to the guilt or innocence of the defendant. And in reply to questions, he stated that the opinion he had was not a fixed or unalterable one; that notwithstanding such opinion, he could sit on the jury and give the defendant a fair and impartial trial; that he would decide the cause upon the testimony given, and not upon his former opinion or impression. And further, that the opinion which he had formed was one that would be changed by the testimony of witnesses upon the stand.

The

We think the juror was entirely competent to sit in the case. opinion of the juror did not seem to be founded on any evidence at all, and was nothing more than a mere impression based upon what he had heard in the street or read in the newspapers. Such an opinion can never be held to disqualify a juror at the present day: Stock v. Commonwealth, 74 Pa. St. 458; Reynolds v. United States, 98 U. S. 145.

In this latter case the question is quite fully discussed and the rule laid down, which we adopt as the law applicable to this territory upon this subject.

2. As to the error alleged in not continuing or postponing the trial upon the application of the defendant. The record discloses that the defendant was put upon his trial on the twenty-eighth day of May, 1885; that the jury disagreed, and that during the same term, and on the eighth day of June succeeding, he was placed upon trial again, in which trial a conviction was had. The defendant in due time filed an affidavit setting forth the absence of a material witness, and set out at great length what he expected to prove by such witness. The affidavit, in substance, alleged that the witness was present at the first trial of the cause, and gave testimony therein; that after he had so testified he left the territory, and went to New Mexico, to attend to business there; that immediately upon the court setting down the cause for trial the second time, the defendant procured a subpoena to be issued, and made every proper and possible exertion to secure the attendance of the absent witness, but that it was impossible to reach him, or to have him at the trial, and setting up the circumstances attending his departure, and the fact that the defendant would have him present at the next succeeding term of court. The affidavit then proceeds, and sets out at considerable length the facts the defendant expected to prove, and would prove, by the absent witness. Among others, that upon the night before the shooting, the deceased came to the house where the defendant was stopping and attempted to break into the house, and made threats against the defendant, among others, that he would take his life; and further, that the defendant, from the excessive use of spirituous liquors, was mentally incapacitated and weakened to such a degree as not to fully understand or be responsible for his acts or conduct. It was made to appear that the trial court had in

formed counsel for defendant that the defendant would not be put upon trial again during the then present term, and also that one of the counsel for defendant, who took an active and leading part in the first trial, had become sick, and confined to his bed at the time the case was set for trial the second time.

These facts, so shown, we think, entitled the defendant to a postponement of the trial, and the refusal of the trial court to continue the cause under the circumstances was such an abuse of discretion as authorizes this court to review the same, and his action therein. The motion for a new trial, based on this refusal, should have been granted. We do not propose by this to interfere with the settled doctrine that the right and power to grant continuances is lodged with the trial judge, but this principle is subordinate to and controlled by that other principle that where the trial judge has been guilty of an abuse of discretion in declining or refusing to postpone or continue a cause, this court, if satisfied of that fact, may review his action and grant a new trial: Churchill v. Alarn, 54 Mich. 100. Besides, the statute of this territory makes this refusal a ground of error in the supreme court: See Comp. Laws, p. 462, sec. 2785, par. 2, which provides in substance that an appeal may be taken to the supreme court from any order of the district court granting or refusing a new trial or which affects a substantial right in an action or special proceeding.

3. The testimony shows that shortly after the deceased was shot, and within two or three minutes thereafter, he was carried to a drug store a few feet from where he was shot, and instantly made a statement to the effect that the defendant called to him to get down on his knees, and that on his refusal to do so the defendant shot him. This testimony was objected to as incompetent and hearsay, but admitted by the court. We think the testimony was clearly competent and admissible. It was part of the res gesta: Hurd v. People, 25 Mich. 405.

In Harriman v. Stowe, 57 Mo. 93, it is held that where an accident happens and the injured party declares to the physician called soon after the accident, how it happened, such statement is admissible in evidence. In Commonwealth v. McPike, 3 Cush. 181, it is held that where a person immediately escaping from an assault declares who did it, such declaration may be received in evidence. So the declaration of the party assaulted made immediately after the assault, showing the character of the impression made at the time on his mind in regard to the nature of the attack is admissible: Monday v. State, 32 Ga. 672.

In the present case the testimony shows that the statements proved were made to persons who were eye-witnesses of the transaction itself and the shooting, and within two or three minutes after the shot was fired We think the statement clearly admissible.

4. The defendant alleges error with reference to the admission of testimony as to the effect upon his mind of the continuous use of intoxicating liquors. The defendant offered testimony tending to show that from a continuous use of ardent spirits his mind had become weakened, and that he was suffering at the time from an attack of

delerium tremens, or alcoholism. Both legal and medical writers recognize the fact that a continuous and excessive use of ardent liquors may result in such a state of insanity as to relieve from criminal responsibility for acts done while in a condition of mind produced and caused by such excessive drinking. It is very different from acts produced in a state of ordinary intoxication, and must be governed by wholly different rules and principles. The trials of causes as reported show that there is no species of insanity in which the mind is so completely filled with halucinations as that produced by this means.

In the case before us, the defendant claims that certain proof offered by him bearing upon this point was improperly excluded. It is said by the attorney-general, in reply to this, that although in the beginning the trial judge expressed the opinion that such proof was not competent, that still the question was gone into fully by the witnesses for the defendant, who answered such questions as were put to them on that subject. We think, from an examination of the record, that this is so, but we find further that the whole effect of this testimony was destroyed by the remarks of the district judge throughout the trial, to the effect that such testimony was of no importance at all, and could effect nothing on behalf of the defendant, unless it could be shown that he was in an actual state of intoxication; in other words, that he was drunk at the time of the shooting. We are of opinion that this was an error, equally as prejudicial to the rights of the defendant as if the judge had, in the first instance, excluded the testimony of the defendant bearing upon this point. There was no pretense that the defendant was actually drunk at the time of the shooting, nor was it necessary that there should be. The result of an examination of the criminal cases where this defense was made, as well as an examination of the medical authorities upon the subject, show that acts of violence on the part of the victim of this unfortunate habit of alcoholism are often committed while he is recovering from his debauch.

We do not, however, intimate that the facts in this case were such as to show the defendant in that condition of mind as not to be responsible for his acts, but we think he was clearly entitled to have all the facts and circumstances bearing upon his condition of mind fairly submitted to the jury, who must, under all these facts and circumstances, determine whether or not he was responsible for what he did.

This sort of testimony was for the consideration of the jury, and with a view of enabling them to determine the condition of the mind of the defendant at the time he fired the shot. Was he, at such time, by reason of his previous habits of intoxication, rendered incapable of forming the intention, or of exercising the deliberation and premeditation, which are essential to the existence of murder in the first degree, of which the defendant was convicted? Or, upon the contrary, was his mind so broken down and destroyed as to render him incapable of forming such an intention? It was important to determine these questions, for only by so doing could the jury come to the conclusion that

the offense was murder of the first or second degree, or manslaughter. It was defendant's right, therefore, to have all this testimony so offered given freely and fairly to the jury, so that from it they could pass upon the degree of the guilt of the defendant.

The defendant put upon the stand Dr. Dunn, a physician in active practice in Tombstone, and offered to show by him an injury or depression of the skull or brain of the defendant, and the probable effect of the continuous use of strong drink upon the defendant, in view of such depression or injury. The district judge excluded this testimony, upon the ground that the physician was not shown to have had experience in the treatment or care of insane persons, and was not an expert on the subject of insanity. We think this was error. It was perfectly competent to show by this physician the injuries offered to be proven, and what effect, in his judgment as a physician, in view of such a condition of the head and skull, as described by him, the use of spirituous liquors would have upon the defendant. To entitle him to give this testimony it was not necessary that the physician should have come from an asylum or had the care of insane patients. His position as a physician entitled him to give his experience and judgment on the matters and questions that were submitted to him.

5. Certain errors are alleged with reference to the cross-examination of the defendant, who went on the stand as a general witness on his own behalf. When upon the stand he was cross-examined as to what he thought and intended to do at the time that he fired the shot. This was clearly proper cross-examination. No question seems to have been asked beyond those indicated, and certainly the defendant could not complain so long as the questions were confined to that limit. The defendant went on the stand as a general witness in his own behalf, and testified fully as to the shooting as well as to the circumstances occurring the night before. In view of such fact the cross-examination might very properly have been extended beyond the point where it did actually stop had the prosecution seen fit to pursue it further: Stover v. State, 56 N. Y. 315; People v. Rineheart, 39 Cal. 449; People v. Russell, 46 Id. 121; Commonwealth v. Price, 10 Gray, 472; People v. Beck, 58 Cal. 212.

These California cases were under a statute which required the cross-examination to be confined to matters about which the prisoner was examined in chief. In our statute on the subject there is no such limitation: Comp. L., p. 101, sec. 408.

This rule does not violate the principle that a person accused of crime shall not be compelled to testify against himself. But this is a privilege which a defendant upon trial may waive, and when he does so, and goes upon the stand as a general witness in his own behalf, he may be examined and cross-examined as any other witness. In such case he voluntarily assumes the character of a witness, and cannot interpose his privilege and refuse to answer such questions as are put to him in a legitimate cross-examination, and this must be determined by the same rules applicable to the cross-examination of other witnesses.

This disposes of all the questions raised on the trial except those alleging error in the instructions given. We do not deem it necessary, however, to consider this branch of the case.

The sentence and judgment of the court below are reversed, and a new trial granted.

DECLARATIONS of Deceased, when Part of RES GESTE: People v. Wong Ah Foo, 10 West Coast Rep. 97; People v. Abbott, 4 Id. 132; People v. Cunningham, 5 Id. 742. Statements made some days after the infliction of the injury are not: People v. Wasson, 2 Id. 642; and so as to statements made three quarters of an hour after: People v. Dewey, Id. 812. But the admission of such statements, if not calculated to prejudice the defendant, is not error: People v. Sullivan, 8 Id. 156.

EXCESSIVE USE OF INTOXICANTS.-Evidence of is admissible as tending to show insanity: People v. Blake, 3 West Coast Rep. 38. The effect of a prisoner's inebriated condition, as bearing upon the intention with which he committed a crime, is a question for the jury: Cook v. Territory, 4 Id. 340.

DEFENDANT WITNESS IN HIS OWN BEHALF.-Examination of, to what extent limited: People v. O'Brien, 6 West Coast Rep. 245; State v. Linch, Id. 116. Where a defendant is a witness in his own behalf, the court may instruct the jury that in ascertaining the credibility of the witness, they may consider the situation in which he is placed: State v. Slingerland, 6 Id. 754; People v. O'Neil, 7 Id. 369. The court cannot instruct the jury to disregard the defendant's testimony if favorable to himself: State v. Maynard, 9 Id. 248.

TERRITORY v. RICHMOND.

Filed March 18, 1886.

RAPE-REPUTATION FOR CHASTITY.--In an indictment for rape, where the evidence shows that the prosecuting witness is a girl of thirteen years of age who lives alone with her mother, it is not error to refuse to permit evidence that the house in which they lived was of bad repute for chastity.

APPEAL from Graham county. The opinion states the facts.
Thomond, for the appellant.

Clark Churchill, attorney-general, for the appellee.

By COURT. This was an indictment charging Jerry Richmond with the crime of rape upon the person of Minnie Eichler. The cause was tried in Graham county, and he was found guilty and sentenced to a term of five years in the territorial prison. We have examined the evidence in the case, and are of the opinion that the evidence sustains the conviction. It is urged that the court erred in not permitting evidence to go to the jury on behalf of defendant that the house in which she lived was a house of bad repute for chastity. The record shows that she was thirteen years old; that she lived with her mother, and that no other person occupied the house with them. In such a case the general reputation of the house was not material. No other error is pointed out. The judgment is affirmed.