Opinion Per CHADWICK, J.

[58 Wash. or behavior on the part of Mr. George or of Mrs. George with the children that would indicate that there was any great affection existing between them? Mr. Murphy: I object to the question as calling for a conclusion. The Court: Sustain the objection. Mr. Horner: Save an exception. Exception allowed. Q. What loverlike action, if any, did you ever observe between Mr. and Mrs. George? Mr. Murphy: Same objection. The Court: Objection sustained. Exception allowed."

These witnesses and others had testified that appellant had spent every Sunday with his wife and children, meeting the children at Sunday school and taking them for a walk and afterwards remaining for dinner with the family. This is sufficient to show the attitude of the court towards the theory of the defense. Appellant was not only denied the privilege of showing that there was in fact no apparent ill feeling between him and his wife, but, when called as a witness in his own behalf, was interrogated on cross-examination by the state's attorney as to the grounds for the divorce; and it was made to appear to the jury that the divorce had, in fact, been granted upon the grounds of cruelty, the trial judge saying, over the objection of appellant, that it was proper to go into the grounds for the divorce, upon the cross-examination of appellant, to test his credibility as a

witness.

If we could agree with the learned trial judge as to the grounds upon which this testimony was admitted, it might be that it would not be error. But the purpose and it was not in any way concealed by the state-was to show that appellant had been cruel to the deceased, so that the jury might infer premeditation, deliberation, and malice. Clearly, appellant had a right to rebut this evidence. It requires no argument to show that, if the state could show ill feeling existing nearly three years before the tragedy, to show probable premeditation, thus raising the presumed crime from murder in the second degree to murder in the first degree, appellant should have the right to give evidence of good will

June 1910]

Opinion Per CHADWICK, J.

for a period of a year or more, to hold the crime to the legal presumption of second degree murder, or to reduce it to a lower degree. He was denied this privilege because, in the opinion of the trial judge, the questions asked called for the opinions of the witnesses. The feeling or apparent mental attitude of people who are in frequent association can be proved by the opinions of those whose acquaintance is of such character and duration as to give them an opportunity to observe and measure their emotions.

"In ordinary human dealings, the formation and expression of estimates as to another's mental state is constant and necessary. There is no good reason why testimony about it, based on personal observation of the other person's conduct, should not be admissible, so far as the opinion rule is concerned; for it is clearly impossible to remember and restate to the jury all the minute data of conduct and words which have served to convey the impression. Such was the orthodox common-law view; and such is the rule today perpetuated in most jurisdictions." 1 Greenleaf, Evidence (16th ed.),

§ 441h.

See, also, 2 Jones, Evidence, 362; 1 Wharton, Criminal Evidence, 511; Lawson, Ex. & Opinion Evidence, 520; Blake v. People, 73 N. Y. 586; State v. James, 31 S. C. 218, 9 S. E. 844; Commonwealth v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401; Trelawney v. Colman, 2 Stark. 191; State v. Marsh, 70 Vt. 288, 40 Atl. 836.

In McKee v. Nelson, 4 Cowen (N. Y.) 355, 15 Am. Dec. 384, a leading case, a question was put to a certain relative of plaintiff who had had an opportunity of observing her deportment, if in her opinion she was sincerely attached to defendant. The court said:

"We think the judge's decision founded in good sense, and in the nature of things. We do not see how the various facts upon which an opinion of the plaintiff's attachment must be grounded, are capable of specification, so as to leave it like ordinary facts, as a matter of inference to the jury. It is true, as a general rule, that witnesses are not allowed to give their opinions to a jury; but there are exceptions, and we

Opinion Per CHADWICK, J.

[58 Wash. think this one of them. There are a thousand nameless things, indicating the existence and degree of the tender passion, which language cannot specify. The opinion of witnesses, on this subject, must be derived from a series of instances passing under their observation, which yet they could never detail to a jury."

In the Marsh case it was said:

"Such impressions upon the witness' mind, produced by observing appearances and acts, is more in the nature of a resultant fact than a mere judgment or opinion derived from an attempted description of the appearances and acts. Such description rarely can convey the full force of the impression made by his observation of them upon the mind of the witness."

Reference to the books will show that it is under the same rule that an opinion as to the intoxication of an individual may be received. Although not the exact case, the principle upon which the proffered testimony was offered was affirmed by this court in State v. Dolan, 17 Wash. 499, 50 Pac. 472. The same principle sustains the case of Higgins v. Nethery, 30 Wash. 239, 70 Pac. 489, wherein it was held that opinions as to the mental condition of a testator could be given, where the witnesses were acquainted with him in his lifetime and had means and opportunity to draw a just conclusion. There are cases holding to the contrary: Leckey v. Bloser, 24 Pa. St. 401; State v. Brown, 86 Iowa 121, 53 N. W. 92; and Carney v. State, 79 Ala. 14. In the last case the court admits the rule, but denies its application in the particular case. These cases are opposed to the overwhelming weight of authority, and, in our judgment, are unsound in principle.

It is also urged that the court erred in refusing a change of venue. A strong showing was made by the appellant in this behalf. We do not feel called upon to decide this point. There may have been a subsidence of the alleged hostile feeling toward appellant by this time. Inasmuch, however, as the showing seems to be prima facie sufficient, we feel warranted in suggesting that, in the event of a renewal of the

motion upon a new trial, if it be in King county, common prudence would dictate a counter showing on the part of the state.

Misconduct of court and counsel are also urged. The observations of the court which are the subject of complaint will, in all probability, not occur on a retrial; and the remark of counsel, "It is my sincere belief that defendant is guilty of murder in the first degree," made in argument to the jury, would not constitute reversible error under the authority of Buckles v. Reynolds, ante p. 485, 108 Pac. 1072.

Error is predicated upon the refusal of the court to give certain instructions. The subject-matter of the instructions refused was covered by other instructions, and appellant cannot complain.

Other errors assigned by counsel have become of no consequence in view of our holding. Judgment reversed, and the cause remanded for a new trial.

RUDKIN, C. J., GOSE, FULLERTON, and MORRIS, JJ., con

cur.

[No. 8791. Department One. June 10, 1910.]

In the Matter of the Application of J. W. PUTNAM for a Writ of Habeas Corpus.1

HABEAS CORPUS-GROUNDS OF RELIEF-UNCONSTITUTIONALITY OF STATUTE ILLEGALITY OF PROCESS. Under Rem. & Bal. Code, § 1075, providing that on application for a writ of habeas corpus no inquiry shall be made into the legality of process whereby a party is in custody upon a warrant issued from the superior court on indictment or information, one in custody under a warrant issued upon an information for violating a statute is not entitled to release on habeas corpus on the ground that the statute is unconstitutional.

Appeal from a judgment of the superior court for King county, Ronald, J., entered April 12, 1910, denying an application for a writ of habeas corpus to release a person held 'Reported in 109 Pac. 111.

Opinion Per FULLERTON, J.

[58 Wash.

in custody upon a charge of selling intoxicating liquor without a license, upon sustaining a demurrer to the petition. Affirmed.

William C. Keith and Blaine, Tucker & Hyland, for appellant.

George F. Vanderveer (The Attorney General and W. F. Magill, Assistant, of counsel), for respondent.

FULLERTON, J.-This is an appeal from a judgment of the superior court of King county, denying an application for a writ of habeas corpus.

The petition for the writ was as follows:

"(1) That your petitioner is unlawfully imprisoned, detained, confined and restrained of his liberty by one Robert T. Hodge, sheriff of King county, Washington. That such restraint and detention is not by reason of any final judgment of a court of competent jurisdiction or by reason of any order adjudging your petitioner to be in contempt of any court, officer or other tribunal.

"(2) That your petitioner is illegally and unlawfully imprisoned, detained, confined and restrained of his liberty by the said Robert T. Hodge, sheriff of King county, Washington, under and by virtue of an alleged warrant of arrest. That said illegal warrant of arrest was issued by virtue of an illegal information filed by the prosecuting attorney of King county, Washington, in the superior court of said county, illegally and unlawfully charging your petitioner in said information with the offense of selling intoxicating liquors without first obtaining a license so to do from the state of Washington.

"(3) That the said information was filed by the prosecuting attorney for King county, charging your petitioner with the offense of selling intoxicating liquors, under and by virtue of an act of the legislature of the Laws of 1907, chapter 194, page 119, which said act is entitled 'An act relating to the sale of intoxicating liquors, fixing a state license fee and providing a punishment for the violation thereof."

“(4) That said act of the legislature of 1907 is unconstitutional and illegal as applied to your petitioner in his