Finally, if it be conceded that appellant cannot avail himself of the fact that the verdict and judgment are not sustained by the evidence, for the reason that, in the statement, it is not specified that the amount due appellant should be deducted from the amount of rents collected, still he would be entitled to have that sum deducted from the judgment, or a new trial, by reason of the instructions of the court excepted to and specified in the assignments of error, wherein the jury were charged not to deduct from the rents any sum on account of any debt which Adams owed defendant. Rehearing denied.

1. JURORS-QUALIFICATION OF.

Filed March 18, 1886.

The opinion of a juror which does not seem to be founded on any evidence, and which is no more than a mere impression, based on rumor and newspaper statements, does not disqualify a juror.

2. CRIMINAL LAW CONTINUANCE-REFUSAL TO GRANT, MAY BE GROUND FOR ERROR.

Where a cause is tried, and the jury disagree, and defendant is put upon his trial again at the same term, to refuse a continuance asked for on the ground of the absence of a material witness who was present at the trial, and who, without defendant's knowledge or consent, went out of the territory, and could not be reached by subpoena, is error.

3. EVIDENCE-RES GESTE-DECLARATIONS OF DECEASED.

Statements made by deceased two or three minutes after he was shot, and in presence of some of the eye-witnesses of the affair, as to how it occurred, are part of the res geste, and are admissible in evidence.

4. CRIMINAL LAW-INTOXICATING LIQUORS-EVIDENCE OF USE OF, WHEN ADMIS

SIBLE.

It is competent to show that a defendant charged with murder had, by a long and continuous use of intoxicating liquors, weakened his mind to a state of insanity.

5. SAME-INSANITY.

It is as competent to show a condition of insanity produced by excessive drinking as from any other cause.

It is competent to show that the defendant so charged was, at the time, suffering from an attack of mania a potu.

7. SAME-TRIAL-REMARKS BY COURT.

It is error for the trial judge, while competent testimony is being offered, to remark that such testimony is of no importance at all, and can effect nothing on behalf of defendant.

8. SAME-DRUNKENNESS.

If a defendant so charged was laboring under the effects of former excessive drinking, to the extent of insanity, it need not appear that he was drunk at the time of the homicide.1

9. EVIDENCE-EXPERTS ON INSANITY.

It is competent for any physician who knows the defendant to testify as to any injury he knows of, and to give his opinion as to the probable mental effect of the excessive use of intoxicating liquors by defendant, even though he may not have had especial experience with the insane.

10. WITNESS-CROSS-EXAMINATION.

Where a defendant charged with crime voluntarily goes upon the witness stand as a general witness to the transaction, he may be cross-examined, as any other witness, and may be asked what he thought and intended at the time.

Appeal from Cochise county. The opinion sufficiently states the facts.

Goodrich & Smith, for appellant.

Clark Churchill, Atty. Gen., for appellee.

1See note at end of case.

SHIELDS, C. J. The defendant in this case, on the eighth day of June, 1885, at a session of the district court in and for the county of Cochise, was convicted of the crime of murder in the first degree, the jury affixing thereto the death penalty. He brings the case to this court, alleging various errors both in the admission and exclusion of testimony, and in the charge of the court. It is not deemed necessary to a disposition of the case to go into any very full or detailed statement of the testimony therein, or the facts as disclosed by the testimony. It is sufficient to say that on the seventeenth day of January, 1885, the defendant shot and killed one Matthew Alexander, in the town of Tombstone. The shooting occurred upon the street on the morning of the day last mentioned. The theory of the prosecution was that the killing was wholly without excuse or justification, and that the defendant was guilty of murder in the first degree. Upon the trial the defense was rested upon two grounds: First, that the killing was done in self-defense; second, that the defendant was in such a state of mind, produced by a continuous and excessive use of spirituous liquors, as not to be in a condition to know what he was. doing or to be responsible for his acts. It is claimed that there are certain errors applicable to the case in general, and others bearing more directly upon the defense of insanity, that it is our duty to consider. Some of these it would be unnecessary to notice were it not that the case must go back for a new trial, and it is proper we should indicate our views on them.

The assignments of error, when grouped, present the following questions: First, were challenges to certain jurors by the accused improperly overruled? Second, was there an abuse of discretion on the part of the district court in declining and refusing to continue the cause? Third, should the testimony offered by the defendant, as to the effect upon his mind of his habits of intoxication, have been received. Fourth, was there error in the instructions given? 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. We think the juror was entirely competent to sit in the case. The 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 dis

qualify a juror at the present day. Staup v. Com., 74 Pa. St. 458; Reynolds v. U. S., 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 incapaci tated 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 informed 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.

Alpena Circuit Judge, 54 Mich 100; S. C. 23 N. W. Rep. 211. Besides, the statute of this territory makes this refusal a ground of error in the supreme court. See Comp. Laws, p. 462, § 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 drugstore 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 clearly part of the res gesta and admissible. 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 Com. 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 delirium 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 hallucinations 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