REHEARINGS DENIED. [Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.] Krebs Hop Co. v. Livesley & Co. (Or.) 104 P. 3. O'Neill v. Edson Keith & Co. (Or.) 104 P. 725. State v. Emmons (Or.) 104 P. 882. See End of Index for Tables of Pacific Cases in State Reports. THE PACIFIC REPORTER. VOLUME 105. STATE v. RUMBLE. (Supreme Court of Kansas. Nov. 6, 1909.) 1. CRIMINAL LAW (§ 452*)-EVIDENCE-NONEXPERTS-INSANITY-COMPETENCY. Although the trial court has some discretion in determining whether a nonexpert witness has had sufficient opportunity of observation to render admissible his opinion of the mental condition of one whose sanity is in issue, it is error to refuse to allow him to state it, where it is shown to be based upon a fairly intimate acquaintance with the subject of the inquiry extending over several years. [Ed. Note. For other cases, see Criminal Law, Čent. Dig. § 1054; Dec. Dig. § 452.*] 2. CRIMINAL LAW (§ 456*)-EVIDENCE-NONEXPERT INSANITY. It is error to exclude such opinion of a witness upon the ground that a number of instances of peculiar and unusual conduct on the part of the subject of the inquiry, to which he has testified do not in themselves justify an inference of insanity. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1045; Dec. Dig. § 456.*] 3. HOMICIDE (§ 81*) - DEFENSES - DRUNKEN NESS. Drunkenness may reduce a homicide from murder to manslaughter, if it is so extreme as to prevent the existence of an intention to kill. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 107; Dec. Dig. § 81.*] 4. HOMICIDE (§§ 28, 81*)-DEFENSES-DRUNK ENNESS. That drunkenness may have rendered one charged with a crime incapable of knowing the nature and quality of his act, or of distinguishing between right and wrong, does not constitute a defense. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 45, 46, 107; Dec. Dig. §§ 28, 81.*] (Syllabus by the Court.) Appeal from Court of Common Pleas, Wyandotte County; William G. Holt, Judge. Charles Rumble was convicted of murder, and he appeals. Reversed, and new trial ordered. D. J. Maher and Jacob S. Detwiler, for appellant. Joseph Taggart, for the State. The of the defense was that he was insane. state maintained that he was merely intoxicated. The most important assignments of error relate to the exclusion of evidence bearing upon the question of his sanity, and to the instructions given and refused regarding the effect of drunkenness. Witnesses were produced in behalf of the defendant who testified, in effect: That they had known him for several years and had had opportunity to observe his usual conduct; that they had noticed at different times peculiar and eccentric actions on his part, which they described in detail. They were then asked whether in their judgment he was sane or insane. Objections were sustained to all questions of this character. Ordinarily the rejection of such evidence is reversible error. State v. Beuerman, 59 Kan. 586, 53 Pac. 874. The state contends, however, that the testimony here excluded was objectionable or immaterial for some or all of these reasons. (1) It did not specifically refer to the condition of the defendant at the time of the homicide; (2) the witnesses said that the defendant bore a good reputation as a quiet and peaceable citizen, and this was inconsistent with the theory of insanity; (3) the witnesses were not shown to have had sufficient opportunity of observation to render their opinions of any value; (4) the facts detailed by the witnesses had no tendency to justify a belief that the defendant was insane. Of these propositions it may be said, in order: 1. The evidence rejected did not specifically relate to the precise time of the homicide; was obviously based on the theory that some but this was not necessary, for the defense form of mental derangement had existed for a considerable period. 2. A good general reputation was not necessarily incompatible with unsoundness of mind, manifested at intervals. 3. One of the witnesses had known the defendant more than six years, and had lived MASON, J. Charles Rumble was convict- near him for over four years, not immedied of murder in the second degree, and ap- ately prior to the homicide, however. Anpeals. It was admitted that he shot and other had known him for nine years and had killed, without any provocation or apparent worked with him at different times, once cause, a man who, so far as the evidence for two months eight years before the trial, shows, was a total stranger. The theory and once for an unstated period within a *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes year. This court has said that "whether | unusual conduct shall be stated, not necthere is a fair basis for an opinion must be essarily to render the witness competent, left largely to the trial court." Kempf v. but to aid the jury in placing a just value Koppa, 74 Kan. 153, 155, 85 Pac. 806, 807. upon his conclusions. "A statement of facts But clearly the acquaintance of each of detailed by the witness tends to affect the these two witnesses with the defendant weight to be given to his opinion, affording was sufficiently intimate for the formation the court or jury opportunity to judge of of a judgment as to his mental condition. his intimacy with the person about whom As was said in the same case: "The courts he is testifying, his facilities for observation, do not undertake to lay down a definite and the acuteness with which he has disrule as to how closely the witness must have cerned peculiarities which might escape the observed the person whose sanity is the sub- notice of others." Zirkle v. Leonard, 61 Kan. ject of inquiry in order to be qualified as a 636, 638, 60 Pac. 318. In Commercial Travwitness, as even a casual observer may dis- elers v. Barnes, 75 Kan. 720, 90 Pac. 293, cover mental manifestations that would the rule is thus stated: "Nonexpert witmake his testimony valuable." nesses shown to have had especial opportunities of observation are allowed to give opinion evidence of the mental condition of one under investigation in this respect, having first stated the facts upon which such opinions are based, or without stating such facts when opportunity is given to cross-examine in reference thereto.” This is in accordance with the weight of authority and the better reason. See 3 Wigmore on Evidence, §§ 1933, 1935, 1938, 1922. 4. The incidents detailed by the witnesses may not in themselves have justified a conclusion that the defendant was insane; but that was not necessary in order to renIder the evidence admissible. One of the cogent reasons for allowing a witness to give his opinion as to the sanity of the person the condition of whose mind is under investigation is that he cannot possibly place before the jury every circumstance that has influenced his judgment in the matter. As was said in Zirkle v. Leonard, 61 Kan. 636, 637, 638, 60 Pac. 318: "If all the facts on which the opinion is based could be placed before the jury, the latter could judge of the sanity or insanity as well as the witness; but there are certain indicia of mental disorder which are indescribable. Peculiar conduct, acts, and deportment of the person may create a fixed and reliable judgment in the mind of an observer which could not be conveyed in words to the jury. A person may appear to be sad, dejected, sick, or well, yet such appearance could not be described satisfactorily, and hence a conclusion is permitted to be given." The court has never decided that a lay witness who has had opportunity to observe the conduct of a person whose sanity is called in question may not give an opinion upon the matter without first stating in detail the facts that have been observed, although this has sometimes been assumed in a general statement of the rule. Baughman v. Baughman, 32 Kan. 538, 543, 4 Pac. 1003; State v. Beuerman, 59 Kan. 586, 589, 53 Pac. 874. A more accurate expression was formulated in Howard v. Carter, 71 Kan. 85, 91, 80 Pac. 61, 63, in these words: "It is well settled in this state that a nonexpert witness may be permitted to give his judgment as to the sane or insane state of another's mind after having detailed to the jury the extent of his opportunities to deduce a correct opinion and judgment thereon." See, also, Grimshaw v. Kent, 67 Kan. 463, 73 Pac. 92. A belief that a person is of sound mind could hardly be said to be founded upon any number of specific acts. Where an opinion has been formed that a person is insane, and testimony to that effect is A physician, who had examined the defendant a few months after the shooting, was asked to testify concerning his mental condition, but was not permitted to do so. The ground of this ruling is not clear; but in the brief of the state it is suggested that the question was too indefinite as to time. It seemed to relate, however, to the time of the examination, and on that theory was pertinent. State v. Newman, 57 Kan. 705, 47 Pac. 881, 16 A. & E. Encycl. of L. 614. The question of the defendant's guilt turned solely on whether he was insane. Inasmuch as he was not allowed to try to establish his insanity by the testimony of nonexpert acquaintances-one of the well-recognized means of proving such a fact-it cannot be said that he was given a fair opportunity to prove himself innocent. The trial court took the view that, to whatever extent the defendant may have been intoxicated, he was guilty of murder in either the first or the second degree, or was innocent; that his voluntary drunkenness might prevent his act from being first degree murder by rendering him incapable of deliberation and premeditation, but could not upon a similar principle prevent it from being murder in the second degree. This was evidenced by an instruction reading as follows: "If you find that the defendant committed the act of killing as charged in the information, and that at the time he did so he was in a state of intoxication, caused by his voluntary action, he is guilty of murder in the first degree, unless you further find that such intoxication was so extreme as to prevent his mind from the exercise of deliberation and premeditation, in which latter case he would be guilty of murder in the second degree." * fendant was so drunk as to have no capacity existence of a definite purpose impossible, | wrong." This was too favorable to the demay be a defense to any crime of which a fendant. "It can make no difference, where specific design is an essential element. "To no specific intent is necessary, that the deregard the fact of intoxication as meriting consideration in such a case is not to hold that drunkenness will excuse crime, but to inquire whether the very crime which the law defines has been in point of fact committed." 17 A. & E. Encycl. of L. 407. If a person is too drunk to form an intent to kill, he cannot be guilty of any offense for the commission of which such intent is necessary. State v. White, 14 Kan. 538. At common law murder may be committed without any actual design to take life (21 Cyc. 712), and therefore drunkenness can be no defense to that charge (12 Cyc. 174, note 77). Under some statutes which divide murder into degrees, an involuntary homicide may be murder in the second degree. 12 Cyc. 174, note 78. In Craft v. State, 3 Kan. 450, 482, it was inaccurately said that to constitute murder at common law an intention to take life must precede the killing, and that whatever act would have been murder at common law is murder under the Kansas statute, being classified as first or second degree according to whether or not it was done deliberately and with premeditation, but in State v. Young, 55 Kan. 349, 355, 40 Pac. 659, it was held, following the Ohio decisions, that the use of the word "purposely" in defining second degree murder implies the existence of an intention to cause death, and this is the interpretation elsewhere placed upon that language. Cyc. 712, note 50. It necessarily follows that drunkenness so extreme as to prevent the forming of a purpose to kill might, under our statute, reduce what would have been murder at the common law to manslaughter, and in a proper case instructions to that effect should be given. See cases cited in subdivision 5 of note in 36 L. R. A. 470, under subhead "Intent," and 12 Cyc. 172. It is to be borne in mind, however, that "the fact of intoxication, no matter how complete and overpowering, is not conclusive evidence of the absence of an intent to take life" (State v. White, 14 Kan. 538, syllabus), and, as said in Zibold v. Reneer, 73 Kan. 312, 320, 85 Pac. 290, 293: "For a person to be too drunk to entertain an intent to kill, it would seem that he would have to be too drunk to entertain an intent to shoot." 21 The court also gave this instruction: "If the defendant shot said Frank J. Emery, as charged in the information, and at the time of said shooting he was intoxicated, the mere fact that he may have been intoxicated at said time furnishes no excuse for the killing of said Frank J. Emery, unless his intoxication was of such a degree that he was incapable of knowing the nature and quality of the act of shooting said Emery, or of of distinguishing between right and The county attorney submits that the homicide could not constitute manslaughter, because in any view of the evidence the facts did not bring it within any of the statutory definitions. No reason, however, is apparent why an instruction might not properly have been given under section 12 of the crimes act (Gen. St. 1901, § 1997). State v. Spendlove, 47 Kan. 160, 28 Pac. 994. The objection made to the applicability of sections 18 and 26 is that they involve the element of "heat of passion." That term, however, has a wide range of meaning. Section 27 includes any inexcusable and unjustifiable killing of a human being not otherwise classified by the statute that at common law would have constituted manslaughter. It is not thought necessary to consider other assignments of error, as the questions to which they relate are unlikely to arise again. The judgment is reversed, and a new trial ordered. All the Justices concur. YOUNG et al. v. GIBSON. (Supreme Court of Kansas. June 5, 1909. On Motion for Rehearing, July 3, 1909. On Motion to Modify Order Allowing New Trial, Nov. 6, 1909.) 1. TAXATION (§ 769*) - TAX DEEDS-SECOND TAX DEED. of a tax deed are regular and legal, the holder "If all the proceedings up to the execution of the certificate is entitled to a deed in legal form, and carrying that prima facie evidence of the regularity of all prior proceedings which belongs to a statutory deed; and if through mistake or inadvertence a different deed, and one substantially departing from the statutory form, has been executed, the county clerk can be compelled by mandamus to, and may without it, execute and deliver a deed in correct and stat utory form. In other words, neither the power nor the duty of the county clerk is exhausted |