the court upon this point, and it clearly appearing, by the evidence introduced by the prosecution, that twelve of the grand jury had concurred in finding the indietment, the defendant's motion in regard thereto falls to the ground, and requires no further consideration.

2. The position taken, that the defendant was put in jeopardy for the second time by this trial in the court below, is abandoned by his counsel on the argument in this court. It could not have been maintained if it had been insisted on, and needs no further consideration.

3. The next error assigned in the brief is the alleged alienage of the trial jurors Horsky and Steinbrenner. The record shows that Horsky arrived in this country. during his childhood, and his father was duly naturalized before this juror attained his majority. It also appears from the transcript that Steinbrenner was a naturalized citizen at the time he was impaneled on the trial jury. During the progress of the trial (it does not appear at what particular stage) counsel for defendant called the attention of the court to the fact that there were one or more persons on the jury who were not citizens of the United States. On examination, it appeared that the juror Horsky had come to America with his father when he was about two years old, and had been in this country thirty-two years, and had never taken out his naturalization papers. Thereupon, being afforded an opportunity by the court, he was naturalized in the proper form, and the trial proceeded. It then appears that at the time the jury retired to consider their verdict, and at the time the verdict was rendered, all the members of the jury were citizens of the United States, and the objection of alienage does not apply. But even if there had been aliens upon the jury, the record does not show that the objection was made by the defendant at the proper time. Upon the former appeal in this case the court used the following language: "The juror Doniothy, who was chal

lenged on account of alienage, was permitted by the defendant to sit in this case, through a failure to exercise his right of peremptory challenge, the accused having two peremptory challenges unexhausted when he accepted. the jury. He thereby waived the objection of alienage, if it were otherwise a good objection, and there was no error of which he could properly complain. It has been repeatedly decided that alienage is a disqualification of a juror which the defendant may waive, either expressly or by failure to object at the proper time." Territory v. Hart, ante, p. 42. This position was held by the court after thorough investigation and long consideration of the authorities. Territory v. Harding, 6 Mont. 326; Lum v. State, 11 Tex. 483; Presbury v. Commonwealth, 9 Dana, 203; State v. Elliott, 45 Iowa, 487; Benton v. State, 30 Ark. 340-344; Erwin v. State, 29 Ohio St. 190; People v. McGungill, 41 Cal. 430.

4. The next three objections urged by counsel in his brief relate to the admission of certain testimony which was claimed to be incompetent, but they were abandoned in the argument, and require no further notice.

5. The seventh assignment of error made by appellant is, that the opinions of certain witnesses who were not medical experts were permitted to be given in evidence to the jury upon the trial of this case. It appears, from the transcript, that non-professional witnesses were examined on the part of the defendant, and after stating their acquaintance with him, and certain actions of his, and other facts upon which their opinions were founded, were permitted to give their opinions as to his sanity. After that, other non-professional witnesses were called in rebuttal by the prosecution, and examined as to their acquaintance with the defendant, and testified as to his different acts, habits, and manners, as the same had fallen under their observation, and were thereupon questioned as to their opinions in regard to his sanity; to the

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giving of which opinions in evidence the defendant, by his counsel, objected. We will disregard the fact that the evidence objected to was given in rebuttal, and treat it in the same manner as if it had been offered in prov ing the case on the part of the prosecution before the defendant was permitted to introduce his evidence.

The question, then, presented by the record is, whether or not non-professional witnesses, who are acquainted with the defendant, and have observed his actions and manner of life, may give in evidence their opinions as to his sanity or insanity on a trial for murder. It is certainly one of the fundamental rules of evidence that witnesses are required to testify as to facts, and not allowed to give their individual opinions to the jury. And this rule must always be followed when the facts can be sufficiently and properly detailed, and the cir cumstances described in such a manner that the jury are able to form correct conclusions for themselves, unaided by the opinion, impressions, or judgment of the witness. But there many cases in which the line between facts and opinions is not very definitely drawn. It is often almost impossible for a witness of ordinary intelligence to state the facts and circumstances of a case, or any particular transaction, to a jury, without indicating his own opinions in regard thereto, and very few persons have sufficient descriptive powers to state any particular matter which has passed under their observation, before a jury, in a perfectly correct light, without intimating the impression that it produced upon their minds at the time, in the shape of an opinion more or less fixed. There are certain cases in which nothing but the opinion of the witness will give to the jury a due appreciation of the result of his observations. Judge Doe, of New Hampshire, gives a very excellent illustration of this in the following language: "In crim inal cases, it is often a question how nearly a foot-print in

earth or snow corresponded to the form of a shoe of the prisoner. A witness who has seen the foot-print and the shoe is allowed to give his opinion on the subject, because a mere description of forms would not be the best evidence. If a plaster cast of the track, or the origi nal impression itself, preserved by freezing, could be produced, this evidence of its form would be more satisfactory than any verbal description. So it is when an impression has been made upon the mind of a witness by the appearance and conduct of the prisoner indicating sanity or insanity; that impression is the best evidence the witness can give on the subject. His description of the appearance and conduct is, in fact, but indirect and imperfect evidence of the impression. When he gives the original impression itself, it is as if the foot-print were brought into court." Lawson on Expert Evidence, 493. Testimony in regard to sanity or insanity forms one of the most noted exceptions to the general rule which we have have heretofore adverted to. Whatever may have been the rule in former times, it can no longer be regarded as doubtful that "one not an expert may give an opinion, founded upon observation, that a certain person is sane or insane." Lawson on Expert Evidence, 476, subrule 4. It appears that this has been the generally received doctrine in the English courts, and it is said to have been received without debate in the courts of all the states except those of Massachusetts, Maine, New Hampshire, and Texas. The contrary doctrine has been greatly modified in Massachusetts, as an examination of the cases in that state will show. Barker v. Comins, 110 Mass. 477; Nash v. Hunt, 116 Mass. 237; Commonwealth v. Pomeroy, 117 Mass. 143. In New Hampshire, the rule announced had a long struggle for supremacy. It was first enunciated by Judge Doe in an able dissenting opinion in the case of State v. Pike, 49 N. H. 401. However, the

supreme court of that state, in the case of State v. Jones, 50 N. H. 369, and State v. Archer, 54 N. H. 468, adhered to the original proposition announced in the case of Hamblett v. Hamblett, 6 N. H. 333, and Boardman v. Woodman, 37 N. H. 133, and disregarded the dissenting opinion of Judge Doe. However, in the case of Hardy v. Merrill, 56 N. H. 227, Chief Justice Foster, in a very lengthy and able opinion, reviews all the decisions, and coincides with the general American doctrine announced in the rule above quoted. Thus we see that Judge Doe's dissenting opinion finally became the recognized rule of law in New Hampshire. What may be the current of opinion at the present time in the state of Maine, we have not had leisure to examine. The court of appeals of Texas has overruled the doctrine announced in Gehrke v. State, 13 Tex. 572, and now coincides with the general rule laid down by Lawson. Judge White, in a very able opinion, used the following language: "Whatever may have been the rules of evidence heretofore with regard to the character of proof admissible on the subject of insanity, the doctrine that non-professional witnesses should be allowed to state their opinion as to the sanity of the party, derived from their acquaintance with and observation of his conduct, appearance, and actions, has become too well settled to admit of doubt or controversy at this time. Holcomb v. State, 41 Tex. 125; McClackey v. State, 5 Tex. App. 320. We are aware that in Gehrke v. State our supreme court, following in the wake of the decisions in Massachusetts and New Hampshire, held otherwise. 13 Tex. 568. The subject has, however, of late years been more thoroughly examined and discussed; and in New Hampshire particularly, in the recent case of Hardy v. Merrill, Foster, C. J., in a most elaborate opinion, concurred in by the supreme court, reviews the previous decisions, and overrules them, which places that court in full accord with the English