procuring one, the alleged refusal is immaterial.

But we do not think that the evidence tends to show that Blythe repudiated the contract, or even refused to sell the stock as he had agreed. The only testimony on this subject is that of plaintiff's witness Ledden, who testified that he took to Blythe a letter from plaintiff stating that plaintiff had sold the stock in London for $500,000, and that the money was ready in London to pay for it; that Blythe thereupon became angry, and "said he would not sell it." The witness asked "if he was going to carry out the conditions of the letter, and he said, 'No.' He said that the amount was too small, or something to that effect; that he had to divide up the amount that he was to get with several parties; and that he would not carry out the condition. He said that perhaps other arrangements could be made that would be satisfactory to him, or something to that effect." The witness remembered nothing further as to the contents of the letter, though he thought it contained something more. The only other testimony concerning the contents of the letter was that of the plaintiff and the witness Wand, neither of whom could state anything further concerning it. It is evident that that testimony, if believed, proved nothing, unless in connection with the contents of the letter referred to. If that letter contained nothing beyond the bare statement testified to by the witnesses, Blythe's language amounted to nothing, for there was nothing for him to act upon. If, on the other hand, it contained a statement of the conditions of the sale, as the witness Ledden seems to imply, then, without knowing what were the conditions so stated, it is impossible to determine whether Blythe's refusal was justified or not. It appears by the testimony of plaintiff's witness Borgen, the supposed purchaser, that the money was to be payable in London. If the letter so stated, then Blythe was justified in refusing to accept the proposition; for, under his contract, he was entitled to payment in San Francisco. It should be observed that, on the former trial, the witness Ledden testified that Blythe said that "if the money was in hand he would not accept it"; and we considered that such a statement would excuse the plaintiff from sending or tendering the money to him at San Francisco. But the witness did not so testify on the last trial, and there is now nothing in the testimony to show that Blythe in any way repudiated his contract, certainly nothing tending to show any act on his part which could have prevented plaintiff from procuring a purchaser. The evidence is also insuf-, ficient to show that the supposed purchaser had the ability to purchase the stock at the price named. The only evidence on that point is his own testimony. He did not claim that he himself had any property or

means adequate for that purpose; but he said that he made the purchase on behalf of a "syndicate," and expected to obtain the necessary funds from that syndicate. His testimony, taken most favorably for plaintiff, was that he had never had the money in his hands, that no persons had ever actually subscribed the money, but that, through that syndicate, he "would have been prepared" when the time arrived "to complete the purchase," "to find the money required." That testimony amounted to nothing more than a statement of his belief that persons not bound by contract to do so would have advanced the money; and it is clearly not such evidence as, under section 1835, Code Civ. Proc., would justify the jury in finding that he had the ability to pay. Moreover, he testified that he was unable to remember the name of a single one of the persons forming the syndicate, and that, since the commencement of this action, he had destroyed all memoranda by which he could have refreshed his memory on the subject. Under these circumstances, his testimony was clearly not "satisfactory," within the meaning of section 1835, and should not have been submitted to the jury. There are many other serious objections urged against the evidence given for plaintiff, which it is not necessary to consider, as those already mentioned are sufficient for the purposes of this appeal. It is enough to say that the evidence was not sufficient to support plaintiff's case on any material issue.

3. The court, at the request. of plaintiff, instructed the jury that "evidence of the oral admissions of a party ought to be received with caution by the jury." This instruction was evidently predicated upon certain testimony introduced by defendant, tending to prove oral admissions by plaintiff that he had never found a purchaser for the stock. It is in the precise language of subdivision 4, § 2061, Code Civ. Proc., which authorizes the court to give it "on all proper occasions." Counsel for defendant contend that, under the decision in Kauffman v. Maier, 94 Cal. 269, 282, 29 Pac. 481, it was a charge with respect to a matter of fact, and therefore forbidden by the constitution. It is not necessary to consider that question in this case, for we are of opinion that this was not a "proper occasion," within the meaning of that section, for the giving of such an instruction. The plaintiff's case depended entirely upon oral testimony as to transactions with the deceased Blythe. That testimony was of such a nature as to make direct contradiction absolutely impossible. No documents of any kind were produced to substantiate it, nor was it corroborated by any independent fact. Plaintiff's claim was never heard of until more than a year after the appointment of an administrator on Blythe's estate, not even by parties who were jointly interested in the al

leged commissions. Under such circumstances, the only kind of evidence which defendant could possibly obtain was testimony of the kind referred to in this instruction. That testimony was of at least as high a character as that produced by plaintiff. Indeed, plaintiff's whole case rested upon the unsupported testimony of a single witness as to a conversation between Blythe and himself when they were alone. No weaker kind of testimony could be produced; and it was clearly not a proper occasion for the court, under such circumstances, to give to the jury an instruction in disparagement of the testimony by which alone defendant could meet the testimony adduced by plaintiff.

4. The court erred in sustaining plaintiff's objections to the questions propounded by defendant to the witness Hart. It was competent for defendant to show that the stock was kept in the hands of a third person for delivery to any purchaser whom plaintiff might procure under the contract. That would be a circumstance tending to contradict the claim that Blythe had repudiated his contract. While it is true that defendant could not be permitted to prove the mere declarations of the deceased in his own favor, he was certainly entitled to prove his acts under the contract, and any declaration made at the time, and characterizing those acts as a part of the res gestae. Some other points are urged by appellant, some of which are sufficiently covered by what has been said, and others will not probably arise on another trial. The appeal from the judgment, having been taken more than one year after the entry of judgment, is dismissed. The order denying a new trial is reversed, and the cause remanded for new trial.

We concur: MCFARLAND, J.; FITZGERALD, J.

GAROUTTE, J. (concurring). The evidence in the record is wholly insufficient to support plaintiff's complaint. Of the many elements of the case absolutely necessary to be proven in order to establish a cause of action, hardly one is sufficiently made out. Yet plaintiff has recovered a judgment for more than $100,000 upon this evidence, and insists that the validity of such judgment be ratified by this court. To obviate the results which would necessarily flow from this dearth of evidence, to wit, a reversal of the judgment, the principle of the law of the case is invoked, and a former decision of this court relied upon, wherein it is said that "the plaintiff produced testimony tending to prove his side of the case." Citing the testimony, Mattingly v. Roach, 84 Cal. 207, 23 Pac. 1117. Conceding the evidence to be the same upon both appeals, still I do not think this declaration of the court should be held equivalent to a declaration that plaintiff by the evidence established a prima facie case for a

recovery. At that time the matter under consideration was the validity of an instruction, and the sufficiency of the evidence only incidentally arose upon the discussion of that question. While in a certain sense the language of the court is not obiter, still it is closely allied to it. The sufficiency of the evidence was not the direct question with which the court was dealing, and it is entirely apparent from the context that the court, in making the statement quoted, never intended to so pass upon the sufficiency of plaintiff's evidence as to forever foreclose a trial court, or this court, from declaring it insufficient to establish a prima facie case. If the court did not intend to make any law of that kind for the case, to hold that such law was made would be treating the doctrine here invoked most kindly and liberally, while, upon the contrary, it has been recognized always and everywhere as a harsh doctrine, and one which has nothing to commend it to the favor of courts. I concur in the judgment.

1. On a prosecution for murder, the defense did not claim that defendant was insane at the trial, and objected to a statement by the prosecution that the jury must find that defendant "is insane," in order to acquit. The court instructed that the jury should consider all defendant's acts "at the time of, before, and subsequent to the alleged commission of the offense," but should consider him as sane at the time of the trial. Held, that such instruction was not error, as taking from the jury the power to consider the question of his insanity at the time of the trial as bearing on his sanity at the time the offense was committed.

2. A statement by the prosecuting attorney that the court will instruct that, to acquit, the jury must find that defendant "is insane," is not ground for reversal, where, on objection being taken, the court, in its charge, stated that the issue was as to defendant's sanity at the time of the commission of the offense.

3. Where a witness has testified that before the homicide he considered defendant insane, it is not error to refuse to permit him to testify that he had told deceased that defendant was insane.

4. Statements by deceased that she considered defendant insane, being merely hearsay, are inadmissible.

5. A ruling of the trial court that a witness was qualified to express his opinion as to defendant's sanity will not be held erroneous, unless it clearly appears that the decision was

HAYNES, C. Appellant was charged with the murder of Mrs. Charlotte Gardemeyer, alleged to have been committed November 17, 1893, and was found guilty by the jury of murder in the first degree, with the penalty of imprisonment for life. The fact that defendant committed the homicide was not controverted, the defense being that he was insane; and this appeal is from the judgment, and from an order denying a new trial. The motion for a new trial is based upon alleged errors in the admission and exclusion of evidence, and upon instructions given and refused, and upon a statement of law made to the jury by the district attorney during his argument. The errors specified in the record are very numerous. Appellant's brief discusses only a few of them, and these we shall first notice:

1. That the court erred in giving instruction No. 26, the material part of which is as follows: "And, as I am about to conclude my instructions to you, it may aid you if I give a brief summary of the principal matters you must consider and decide. You are not to consider whether or not the defendant is insane at the present time, but you are to consider him as now sane. A person charged with crime cannot be legally tried for such crime unless he be sane at the time of the trial. The defendant has presented the issue to you that, at the very time of the alleged commission of the homicide, he was insane. As I have already told you, the burden of proving his insanity at that time rests upon him, because the law presumes he was then * sane. * *." Appellant contends that this instruction invaded the province of the jury, and was equivalent to a finding of the fact that the defendant was then sane, and took from the jury the power to consider the question of the insanity of the defendant at that time as evidence tending to show that he was insane when he committed the homicide. I think the instruction could not have been so understood. No suggestion was made during the trial that he was then insane, nor any witnesses examined as to his sanity at that time. The court had before that instructed the jury that they were to

consider "all his acts and conduct at the time of, before, and subsequent to the alleged commission of the offense, as shown by the evidence." No issue as to his sanity at the time of the trial had been submitted to the jury under section 1368 of the Penal Code; and hence, for the purposes of the trial, he was to be considered sane, the issue being whether he was sane at the time he committed the homicide. This instruction was given by the court of its own motion, and though no suggestion had been made on behalf of the defendant that he was then insane, or that it was improper to proceed with the trial for that reason, it was proper, in view of a statement made to the jury by the district attorney in the course of his argument to the jury, and which is also specified as one of the errors for which a reversal is sought. The language used by the district attorney was this: "You will be instructed by the court that you must find by a preponderance of the testimony that the defendant is insane before you can acquit him." Counsel for defendant at once objected and excepted to the statement, and asked the court to instruct the jury then that the statement was not law, to which the court replied that he would instruct the jury at the proper time. The mistake of the district attorney was thus corrected by the court; and, in view of the correction, it cannot be held that the jury were misled by his

error.

B. W. H. Harstromberg, a brother of the deceased, was called by the defendant, and testified to his acquaintance with the defendant; the change in his demeanor from the time he first knew him; that the last time he saw him was about two years prior to the homicide; and that he (the witness) then considered the defendant insane. The witness was then asked by counsel for defendant whether he ever had any talk with Mrs. Gardemeyer regarding the sanity or insanity of the defendant. He answered that he had, and was asked to state what it was. He commenced to answer, and was stopped by the court. Counsel for defendant then offered to prove by the witness "that at different times he went to Mrs. Gardemeyer, and told her, to look out for Peter Schmitt; that he was crazy, and liable to become violent, and to look out for him,-and that she answered that she knew he was crazy, but she I could handle him." An objection to the offer was sustained, and defendant excepted. I see no error in the ruling. The witness had already testified what his opinion was. If he had been permitted to testify that he had expressed that opinion to his sister two years before the homicide, it could not strengthen his testimony, since whether he entertained such opinion at that time, or had expressed it, must each have stood upon his testimony alone; and, as to what his sister said, it was mere hearsay, and besides, not being accompanied by a statement of the

facts upon which she based that opinion, the opinion itself could not be received. What nas here been said also disposes of the errors assigned upon the questions put to Swan Segerstrand, viz.: "Do you know whether or not Mrs. Gardemeyer knew that defendant was crazy?" and "Did Mrs. Gardemeyer ever tell you that the old fool was crazy, but that she could handle him?"

Ellington, a witness called by the prosecution in rebuttal, was permitted, against defendant's objection, to testify that in his opinion the defendant was sane. Whether the witness had such acquaintance with the defendant, and opportunity of observing him, as to qualify him to express an opinion as to defendant's sanity, was a question necessarily to be determined by the trial court, in the first instance; and, while this court has the unquestioned right to review the ruling in that regard, it will not be held er roneous upon a mere difference of opinion, but it must clearly appear that his decision upon the point was wrong. Something must be conceded to the intelligence of the witness, and his habits of observation, and of these qualifications the trial court can better judge. People v. Pico, 62 Cal. 50. Upon the facts stated by the witness, his opinion was entitled to some consideration, as it tended in some measure to show the mental condition of the defendant down to a time shortly before the homicide, the weight to be given it by the jury being controlled by the facts upon which his opinion was based.

It is also contended that the court erred in refusing to give the following instruction requested by the defendant: "I further instruct you that, if you find from the evidence in this case that the defendant was insane at a period before the homicide in question, then and in that case his insanity is presumed to have continued up to the time of the homicide, provided the exciting cause of such insanity also existed up to and at the time of the homicide." This instruction was properly refused. In People v. Francis, 38 Cal. 183, there is an instruction identical with the one under consideration, if the latter clause, commencing with the word "provided," had been omitted. The court there said: "If the term 'insanity,' as employed in these instructions, is to be construed as referring to a general unsoundness of the mind, and not to an aberration of a temporary nature, proceeding from some transient cause, then the instructions correctly stated the law. If it be shown that the intellectual faculties were so impaired as to produce a general, habitual derangement of them, not traceable to some temporary cause, the law would presume the mind to have continued in the same condition until the contrary was shown. In Whart. Cr. Law, § 55, the rule is thus stated: 'When habitual insanity is proved to have existed prior to the commission of an act, it will be presumed to have continued, unless the con

trary be proved, down to the specific time. It is otherwise, however, when the proof is of temporary or spasmodic mania."" The language used by the court, above quoted, is subject to criticism so far as it refers to insanity "produced by a temporary cause" or "transient cause," since permanent or long-continued insanity may result from a transient or temporary cause, while a continuing cause may produce only temporary insanity. The point of the opinion, however, is right. To establish the basis of a presumption that insanity, once shown to have existed, continues to exist, it must appear to have been of such duration and character as to indicate the probability of its continuance, and not simply the possibility or even probability of its recurrence, as would be the case if its existence appeared to be temporary. Because the request was not qualified as above indicated, it was properly refused. See, also, People v. Smith, 57 Cal. 130.

Exceptions were also taken to the twentysecond, twenty-third, and twenty-fourth instructions given at the request of the prosecution. These instructions introduce the word "delusion," but the connection in which it is used shows that it was intended as an equivalent expression for "partial insanity." The twenty-second instruction starts with the expression, "When partial insanity is relied upon," etc.; the twenty-third uses the expression, "partial insanity or delusion"; and the twenty-fourth, "in cases of partial delusion." It is also clear that by "partial insanity" is there meant insanity upon a particular subject, or as to a particular matter. The twenty-third instruction explains this meaning very clearly, as follows: "In cases of partial insanity or delusion as to certain facts and matters, and the accused, as to other facts and matters, is sane," etc. If the defendant was insane, it was not a case of insane delusion, but the cause was an existing fact. There was evidence, however, tending to show that the defendant had "spells" when he did not appear or act as he did on other occasions; and, as appeared from the testimony of the witness Ellington, that when engaged in assisting him in repairing the pump, on the several occasions mentioned, he acted intelligently, and he considered him perfectly sane. The use of the word "delusion," while it had no proper application to the facts of the case, could not have misled the jury, since the evidence. and the connection in which the word was used, made clear the sense in which it was used.

The exception to the twenty-first instruction is not well taken. It is true this instruction did not refer to the degrees of the crime charged in the information; but the court explicitly instructed the jury upon that subject, and defined the different degrees of murder, and expressly informed them that the defendant might be convicted of either,

or—if, in their judgment, the facts warranted it-of manslaughter. It is not required that the court shall repeat such instruction in every possible connection in which reference could be made to the degrees of the offense. If once clearly and expressly given, it is sufficient.

No other points are discussed in appellant's brief, though other errors are specified in the record. A careful examination of them, however, discloses none requiring a reversal of the judgment or order appealed from. The facts disclosed by the evidence must appeal strongly to the sympathies of any one who reads the record, and justify the earnestness and evident sincerity with which the learned counsel for appellant have presented his case. The statement in appellant's opening brief that the condition and mental state of the defendant is "daily nearing the hopeless shores of idiocy" is not noticed in respondent's brief; and, in appellant's closing brief, counsel say: "As matter of fact, at the very time of the trial the defendant was rapidly approaching dementia, and at the present time lies in the county jail of Sutter county, under sentence, a gibbering and demented idiot." Assuming this to be true, it is probable that the defendant was not responsible at the time of the homicide, and, if so, should have been acquitted; but it is equally true that, notwithstanding his present condition, the mental disease may not have so far progressed at that time as to relieve him from the fearful responsibility of his acts. This court, however, cannot act upon the evidence furnished by his present condition, and upon that ground reverse a judgment otherwise legal. The humanity of the law has, however, provided for such cases. A person, though adjudged to punishment, cannot be "punished for a public offense while insane." Pen. Code, § 1,367. His conviction and sentence do not exclude him, from the state insane asylum, and, beyond that, executive clemency has power to relieve even where the courts cannot. I advise that the judgment and order appealed from be affirmed.

WILLIAMS v. CUNEO. (No. 15,747.) (Supreme Court of California. Feb. 7, 1895.) Department 1. Appeal from superior court, city and county of San Francisco; James M. Troutt, Judge.

Action by one Williams against one Cuneo. Plaintiff had judgment, and defendant appeals. Affirmed.

Horace W. Philbrook, for appellant. J. C. Bates, for respondent.

PER CURIAM. Upon the authority of Fletcher v. Prather, 102 Cal. 413, 36 Pac. 658, White v. Harris, 103 Cal. 528, 37 Pac. 502, and Byrne v. Luning Co. (Cal.) 38 Pac. 454, the judgment and order appealed from are affirmed.

1. Under Code Civ. Proc. § 1881, subsec. 4, limiting the privilege of a physician to civil cases, a physician may testify as to communi cations by a patient in criminal cases.

2. Defendant, a physician, accused of having caused the death of a patient by procuring for her a miscarriage by unlawful means, called as a witness another physician, to prove that deceased applied to him before she did to the defendant, and what her condition was at that time. Held an error to exclude his testimony.

Commissioners' decision. In bank. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge.

Eugene F. West was charged with the murder of one Addie Regent Gilmour. From a judgment of conviction, and an order denying motion for a new trial, defendant appeals. Reversed.

J. N. E. Wilson, Myer Jacobs, and Robert Ferral, for appellant. Atty. Gen. Hart, for the People.

BELCHER, C. The defendant was charged with the murder of one Addie Regent Gilmour, and found guilty of murder in the second degree. The judgment was that he be punished by imprisonment in the state prison for the term of 25 years, from which judgment, and an order denying his motion for a new trial, he appeals. It is contended for appellant that the court committed several errors of law in its rulings as to the qualification of certain parties to sit as jurors in the case, and in the admission and exclusion of evidence, but, in view of the conclusion reached, only one of these alleged errors need be considered.

The theory of the prosecution was that the deceased, Miss Gilmour, was pregnant, and went to the defendant, who was a physician in San Francisco, to have him procure for her a miscarriage, and that defendant by some unlawful means did procure the miscarriage, and thereby cause her death, a few days later. The theory of the defense, on the other hand, was that the miscarriage was effected by some one else before the de: