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 shows 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 enab'ing 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 of 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. Reinhart, 39 Cal. 449; People v. Russell, 46 Cal. 121; Com. 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. Laws, p. 101, § 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 crossexamination 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.

NOTE.

Drunkenness is no excuse for crime. Cross v. State, (Wis.) 12 N. W. Rep. 425; U. S. v. Claypool, 14 Fed. Rep. 127.

Drunkenness, voluntarily brought on, is, of itself, no excuse for crime. People v. Blake, (Cal.) 4 Pac. Rep. 1. See, also, Cook v. Territory, (Wyo.) 4 Pac. Rep. 887.

It may be said to be the universal rule that simple intoxication is no excuse for crime. See Tidwell v. State, 70 Ala. 33; State v. Bullock, 13 Ala. 413; Friery v. People, 54 Barb. 319; People v. Robinson, 1 Parker, Crim. R. 649; State v. Thompson, 12 Nev.

140; Shannahan v. Com., 8 Bush, 464; State v. Turner, Wright, (Ohio,) 20; Boswell v. Com., 20 Grat. 860; State v. Mullen, 14 La. Ann. 570; Rafferty v. People, 66 Ill. 118; McKenzie v. State, 26 Ark. 335; People v. Williams, 43 Cal. 344; State v. Hurley, 1 Houst. Crim. Cas. 28; Mercer v. State, 17 Ga. 146; Shannahan v. Com., 8 Bush, 463; Schaller v. State, 14 Mo. 502; State v. Harlow, 21 Mo. 446; Kelly v. State, 3 Smedes & M. 518; Kenny v. People, 31 N. Y. 330; O'Brien v. People, 48 Barb. 274; People v. Rogers, 18 N. Y. 9; People v. Garbutt, 17 Mich. 9; Golden v. State, 25 Ga. 527; Com. v. Hart, 2 Brewst. 546; Com. v. Dougherty, 1 Browne, 20; Com. v. Hawkins, 3 Gray, 463; State v. Bowen, 1 Houst. Crim. Cas. 91; People v. Fuller, 2 Parker. Crim. R. 16; Marshall v. State, 59 Ga. 154; Estes v. State, 55 Ga. 30; People v. Willey, 2 Parker, Crim. R. 19; People v. Porter, Id. 14; Choice v. State, 31 Ga. 424; State v. Keath, 83 N. C. 626; U. S. v. Forbes, Crabbe, 559; Respublica v. Weidle, 2 Dall. 88; U. S. v. McGlue, 1 Curt. 1; U. S. v. Drew, 5 Mason, 28; State v. McCants, 1 Speer, 393; Cornwell v. State, Mart. & Y. 147; Reg. v. Cruse, 8 Car. & P. 546; Rex v. Grindley, 7 Car. & P. 145; Rex v. Meakin, Id. 297; Burrow's Case, Lew. Cr. Cas. 75; Reniger v. Fogossa, Plowd. 19; 1 Russ. Cr. 12; 2 Bl. Comm. 25; Coke, Comm. 274a.

Intoxication is no defense to a prosecution for crime; but in some cases evidence of intoxication is admissible to show that no crime has been committed, or to show the degree or grade of the crime. Cline v. State, (Ohio,) 1 N. E. Rep. 22.

Drunkenness is no excuse for crime, and in the instances in which it is resorted to to blunt moral responsibility it heightens the culpability of the offender. U. S. v. Claypool, 14 Fed. Rep. 127.

The old English writers lay it down that drunkenness is always an aggravation of the crime, and it has been said that there are expressions in some of the cases in the United States to the same effect. See Com. v. Hart, 2 Brewst. 546: U. S. v. Forbes, Crabbe, 559. But this has been disputed by later authorities, McIntyre v. People, 38 Ill. 515; Ferrell v. State, 43 Tex. 503, and is not now looked upon as the law in this country.

It is said in a recent case that where a person, having the desire to do another an unlawful injury, drinks intoxicating liquors to nerve himself up to the commission of the crime, that the intoxication is held to aggravate the offense; but that the rule that intoxication aggravates crime is confined to this class of cases. Cline v. State, (Ohio,) 1 N. E. Rep. 22. Where the prisoner, at the time of the commission of the alleged offense, is so frenzied from the excessive use of liquor that he was incapable of knowing what he was doing, this fact will be a defense to a prosecution therefor. Cross v. State, (Wis.) 12 N. W. Rep. 425.

Voluntary intoxication is no excuse for crime; but on the trial of one charged with murder in the first degree his intoxication may be taken by the jury as a circumstance to show that the act of killing was not deliberate and premeditated. Schleenker v. State, (Neb.) 1 N. W. Rep. 857.

Insanity produced by protracted overindulgence in intoxicating liquors may be said not to be an excuse for crime, but a defense in prosecution therefor. People v. Blake, (Cal.) 4 Pac. Rep. 1. See, also, Fisher v. State, 61 Ind. 435; Bradley v. State, 31 Ind. 492; Cluck v. State, 40 Ind. 263; Carter v. State, 12 Tex, 500; Beasley v. State, 50 Ala. 149; O'Brien v. People, 48 Barb. 274; Erwin v. State, 10 Tex. App. 700; State v. Dillahunt. 3 Har. (Del.) 551; State v. Hurley, 1 Houst. Crim. Cas. 28; State v. Till, Id. 233; Maconnehey v. State, 5 Ohio St. 77; U. S. v. Clarke, 2 Cranch, C. C. 158; Golliher v. Com., 2 Duv. 163; State v. McGonigal, 5 Har. (Del.) 510; Real v. People, 42 N. Y. 270; Schlencker v. State, 9 Neb. 241; S. C. 1 N. W. Rep. 857; Bailey v. State, 26 Ind. 422; Boswell's Case, 20 Grat. 860; U. S. v. Drew, 5 Mason, 28; Rennie's Case, Lew. 76; Reg. v. Dixon, 11 Cox, 341; Reg. v. Leigh, 4 Fost. & F. 915.

It cannot be said as a rule of law that, because a man is a drunkard, he is of unsound mind. Estate of Lang, (Cal.) 2 Pac. Rep. 491.

Where irresponsible drunkenness is relied on as a defense to a prosecution for crime, the burden of proving such drunkenness is on the defendant, and he must establish it beyond a reasonable doubt. The contrary rule commented on and disapproved. State v. Grear, (Minn.) 13 N. W. Rep. 140.

In some cases evidence of intoxication is admissible to show that no crime has been committed, or to fix the grade of the crime. When the offense charged embraces deliberation, premeditation, some specific intent, or the like. evidence of intoxication at the time the deed was done may be important. Cline v. State, (Ohio,) 1 N. E. Rep. 22. Evidence of drunkenness is admissible on the question of intent, when the intent is an element in the constitution of the offense, and without which the offense could not be committed; and if the accused was in such a condition of mind from intoxication as to be incapable of forming such intent, it will be a complete defense. People v. Blake, (Cal.) 4 Pac. Rep. 1: Cook v. Territory, (Wyo.) Id. 887.

In a prosecution for maliciously shooting with intent to wound, evidence that the defendant was so much intoxicated that he could not form or have such intent is admissible. Cline v. State, (Ohio,) 1 N. E. Rep. 22.

Where the defendant was so drunk that he was incapable of forming an intent to ravish the prosecutrix, such drunkenness is a defense to à prosecution for attempted rape. State v. Donovan, (lowa,) 16 N. W. Rep. 206.

It is said that intoxication or drunkenness on the part of the defendant cannot, in a murder trial, form a legitimate matter of inquiry as between the crime of murder in the second degree and that of manslaughter; for manslaughter is the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation. People v. Langton, 7 Pac. Rep. 843. The court say in this case that the question is not a new one to the court, but that it was passed upon and the same doctrine held in the case of People v. Nichol, 34 Cal. 215, and add : ""In the case of Pirtle v. State, 9 Humph. 663, the supreme court of Tennessee say that, as between the two offenses of murder in the second degree and manslaughter, the drunkenness of the offender can forin no legitimate matter of inquiry."

The supreme court of Minnesota say, in case of State v. Grear, 13 N. W. Rep. 140, that "upon the subject of intoxication as a defense to a criminal charge the court instructed the jury to the effect that if the defendant was at the time of the shooting in such a condition of mind by reason of intoxication that he did not know what he was doing, or whether his acts were right or wrong, then he is irresponsible, and incapable of entertaining a criminal intent, and must be acquitted. We are by no ineans prepared to concede the correctness of the general rule thus laid down with respect to the effect of voluntary drunkenness in relieving of criminal responsibility. Certainly no such rule prevailed at common law. See Com. v. Hawkins, 3 Gray, 463; People v. Rogers, 18 N. Y. 9; Hopt v. People, 104 U. S. 631. It is at the same time true that there may be a degree of intoxication which will render a person incapable of entertaining the actual specific intent to do a certain thing which is by statute made a necessary ingredient of certain offenses. State v. Garvey, 11 Minn. 154, (Gil. 95.) So, also, it may be material for the prisoner to show intoxication where the charge is of murder, and there are different degrees of that crime, according to defendant's state of mind at the time the offense was committed."

In a recent Ohio case, Cline v. State, 1 N. E. Rep. 22, the late Judge OKEY, one of the most learned and able judges that ever sat upon the Ohio or any other bench, says that "where the offense charged embraces deliberation, premeditation, some specific intent, or the like, evidence of intoxication may be important, and it has frequently been admitted. Pigman v. State, 14 Ohio, 555; Nichols v. State, 8 Ohio St. 435; Davis v. State, 25 Ohio St. 369; Lytle v. State, 31 Ohio St. 196. The leading case of Pigman v. State has been repeatedly cited with approval, People v. Robinson, 2 Parker, Crim. R. 235; People v. Harris, 29 Cal. 678; Roberts v. People, 19 Mich. 401; State v. Welch, 21 Minn. 22; Hopt v. People, 104 U. S. 631; State v. Johnson, 40 Conn. 136; and no doubt the law upon the subject is correctly stated in that case, and that the rule as there expressed is humane and just; but there is always danger that undue weight will be attached to the fact of drunkenness, where it is shown in a criminal case, and courts and juries should see that it is only used for the purpose above stated, and not as a cloak or justification for crime."

This may be said to be the prevailing rule of law throughout the country. See U. S. v. Drew, 5 Mason, 28; S. C. 1 Lead. Crim. Cas. (2d Ed.) 131, note; Regina v. Davis, 14 Cox, Crim. Cas. 563; S. C. 28 Moak, 657, note; Swan v. State, 4 Humph. 136; Pirtle v. State, 9 Humph. 663; Haile v. State, 11 Humph. 156; Cartwright v. State, 8 Lea, 376; Lancaster v. State, 2 Lea, 576; State v. Johnson, 40 Conn. 136; State v. Johnson, 41 Conn. 585; Jones v. State, 29 Ga. 594; Hopt v. People, 104 U. S. 631; People v. Lewis, 36 Cal. 531; People v. Nichol, 34 Cal. 212; People v. King, 27 Cal. 507; People v. Williams, 43 Cal. 344; People v. Belencia, 21 Cal. 544; Curry v. Com., 2 Bush, 67; Kelly v. Com., 1 Grant, Cas. 484; Keenan v. Com., 44 Pa. St. 55; Jones v. Com., 75 Pa. St. 403; Colbath v. State, 2 Tex. App. 391; People v. Odell, 1 Dak. 197; Lanergan v. People, 6 Parker, 209; People v. Batting, 49 How. Pr. 392; State v. Edwards, 71 Mo. 324; State v. Harlow, 21 Mo. 446; State v Cross, 27 Mo. 332; State v. Hundley, 46 Mo. 416; State v. Dearing, 65 Mo. 530; State v. Tatro, 50 Vt. 483; Wood v. State, 34 Ark. 341; State v. Bell, 29 Iowa, 316; Scott v. State, 12 Tex. App. 31; Roberts v. People, 19 Mich. 401; State v. Welch, 21 Minn. 22; People. v. Harris, 29 Cal. 678; State v. Maxwell, 42 Iowa, 208; Wenz v. State, 1 Tex. App. 36; Loza v. State, Id. 488; U. S. v. Bowen, 4 Cranch, C. C. 604; State v. Schingen, 20 Wis. 74; State v. Coleman, 27 La. Ann. 691; State v. Trivas, 32 La. Ann. 1086; Henslie v. State, 3 Heisk. 202; State v. Garvey, 11 Minn. 154, (Gil. 95.)

(2 Ariz. 69)

TERRITORY Y. NELIGH and another.

Filed March 18, 1886.

1. CRIMINAL LAW-BILL OF EXCEPTIONS.

A transcript of the notes of a stenographer, certified by him to be the testimony in a cause, cannot have the effect of a bill of exceptions.

2. SAME-APPEAL-RECORD.

The certificate of the clerk must show that the transcript is the record of the action, and it is not sufficient for him to certify to portions of the record. 3. SAME TRIAL-INSTRUCTIONS MUST BE BASED UPON THE EVIDENCE.

It is impossible for the court to pass upon an instruction unless the evidence to which it is applicable be before the court.

4. SAME-ACCOMPLICE.

The uncorroborated testimony of an accomplice is not sufficient to sustain a conviction.

Appeal from district court, Graham county.

The opinion states the facts.

Clark Churchill, Atty. Gen., for the Territory.

P. J. Bolan and B. H. Herreford, for appellants.

PER CURIAM.

The defendants were convicted of the crime of grand larceny, at a session of the district court in and for the county of Graham, on the thirteenth day of September, A. D. 1884. They now bring error, and ask a review by this court of the proceedings upon such trial.

The case is in no shape to present any of the questions, if we saw fit to rule upon them. There is no bill of exceptions at all, but simply a mass of papers which are stated by the stenographer of the court to be the testimony in the cause. Such papers, it is needless to say, cannot have the effect of a bill of exceptions. The papers presented to us are defective in other respects. The certificate of the clerk does not show that the record of the action is sent up, but only such portions thereof as are mentioned by him in his certificate. Of course, such papers could not have the effect of a bill of exceptions. We have, however, looked through this mass of testimony returned, and have satisfied ourselves that the defendants had a fair and impartial trial, and that no exceptions to rulings were taken that have any merit to them at all, or that in the slightest degree prejudiced the rights of the defendants.

Two instructions were given, which, it is insisted, were wrong, and the giving of them was such error as should work a reversal of the conviction. These were as follows:

(1) "The jury are further instructed that when a witness swears to a certain fact, at a certain time, and afterwards swears differently at another time, his whole evidence must be looked upon with suspicion."

(2) "The jury are instructed if they believe from the evidence that the witness Sloan was an accomplice, then he must be corroborated by other evidence."

As to the first request, it is not necessary to say whether it is good or bad law. The testimony is not here so that we could see, so we