was not the most appropriate that could have been given in reference to the legal evidence before the jury. Excluding the portion that was illegal, but which the circuit court admitted, and applying the charge to the legal evidence alone, it was calculated to mislead the jury.

Let the judgment be reversed and the cause remanded.

DECLARATIONS ARE ADMISSIBLE IN PARTY'S FAVOR as part of the res gesta, when they accompany an act, and were made at a time when he could not have anticipated the circumstances which make them material: See Deming v. Carrington, 30 Am. Dec. 591; Ross v. Bank of Burlington, 15 Id. 664. DECLARATIONS OF TENANT, ADMISSIBILITY OF, TO ESTABLISH JOINT OWNERSHIP: See Darling v. Bryant & Walker, ante, p. 162.

DECLARATIONS OF PERSON IN POSSESSION, WHETHER AS TENANT OR PROPRIETOR, as to the manner in which the land was occupied, are admissible against himself and those claiming under him: See Beecher v. Parmele, 31 Am. Dec. 633.

TENANCY IN COMMON IS CREATED IN HOGS, where one person delivers them to another to fatten on shares: See Sheldon v. Skinner, 21 Am. Dec. 161.

TENANCY IN COMMON IS CREATED IN CROP, where two persons plant and cultivate it, with the agreement that it shall be divided; and neither can defeat the title of the other by taking a conveyance of the land from their landlord: Lowe v. Miller, 46 Am. Dec. 188.

POSSESSION OF ONE TENANT IN COMMON IS POSSESSION OF ALL, but where one co-tenant enters and claims the entire property in severalty, it constitutes adverse possession, and the statute of limitations will commence to run against the others. See Gillaspie v. Osburn, 13 Am. Dec. 136; see further, as to adverse possession: Coleman v. Hutchenson, 6 Id. 649; also Vaughn v. Bacon, 33 Id. 628, and note.

MCALLISTER V. THE STATE.

[17 ALABAMA, 434.]

WHERE JURYMAN'S NAME, WRITTEN UPON SLIP OF PAPER, falls from the hat before being drawn, and the defendant objects to its replacement and the objection is sustained, he can not afterwards assign the sustain. ing of such objection as error.

EVIDENCE BY MEDICAL EXPERT AS TO HIS OPINION OF SANITY or insanity of a prisoner, founded upon his appearance while on trial, should be admitted.

INQUIRY INTO MENTAL CONDITION OF PRISONER, both before and after the

commission of the act, is admissible under the plea of insanity.

TO RENDER DEFENSE OF INSANITY AVAILABLE, the evidence must be suffi cient to convince the minds of the jury that at the time the act was committed the accused was not conscious that in doing that particular act he was committing a crime.

WOUND WHICH UNDER FAVORABLE CIRCUMSTANCES MIGHT HAVE HEALED, but which ultimately caused death, is sufficient to constitute the crime of murder in him who inflicted it.

1

INDICTMENT for murder, and conviction. The defendant appealed. The opinion states the facts.

Buford, for the plaintiff.

M. A. Baldwin, attorney general, for the state.

By Court, DARGAN, C. J. The plaintiff in error was tried and convicted, in the circuit court of Barbour, of the murder of Samuel Moreland. On the trial a bill of exceptions was taken to the ruling of the court, which shows that after the original list of jurors was exhausted, and the jury not being complete, it was announced that the name of one Reeves, included in the list that had been served on the prisoner, had not been drawn from the hat and could not be found in it. The name was subsequently found in another place, and the clerk stated that they had been particular in putting all the names in the hat, and thought it must have fallen out by accident. The court proposed to the prisoner to allow the name then to be put in the hat and drawn, to which, by his counsel, he objected. The solicitor then moved the court to place the name in the hat and draw the same as the name of a juror, to which the defendant also objected, and his objection was sustained by the court. The court then proceeded to complete the jury according to the statute.

In the case of The State v. Marshall, 8 Ala. 306, it was held that the court may, in its discretion, reject one who is an unfit person to sit as a juror, although not disqualified by law, and if the prisoner be tried by an impartial jury, he has sustained no injury. Whether the court may set aside a competent juror against the wishes of the prisoner, without committing an error, it is not necessary to decide; but if the prisoner object to the juror, whether his objection is well founded or not, and the court sustains the objection, certainly he can not be heard to complain that the court erred. If there was error, it intervened at the prisoner's request and for his benefit.

It was shown that for some years prior to the commission of the offense the defendant's demeanor was strange, and his general appearance wild, and there was other evidence tending to show that the defendant was subject to sudden fits resembling insanity. The prisoner's counsel then offered a physician for the purpose of showing that it was his opinion that the prisoner then had an insane eye and an insane appearance. This opinion was formed from the appearance of the prisoner at the time of the trial. To this testimony thus offered, the state ob

jected, and the objection was sustained. We can not perceive on what principle the evidence was rejected. It is true that the evidence must show that at the time the act was done the mental condition of the deceased was such that he could not be held criminally responsible for his acts-he must have then been insane; but we presume there can be no doubt that it is competent to go into an inquiry of the mental condition of the prisoner, both before and after the commission of the act. This is the rule we announced in the case of McLean v. The State, 16 Ala. 672, and we are satisfied that it is as well sustained by authority as it is by reason.

It is laid down by Mr. Greenleaf, that evidence of the state or condition of the mind, both before and after the act is done, is admissible evidence: 2 Greenl. Ev., sec. 371. See also Grant v. Thompson, 4 Conn. 203 [10 Am. Dec. 119]; Norwood v. Marrow, 4 Dev. & B. 442. And I can not find it laid down in any of the common-law writers, that testimony tending to show insanity after the commission of the act should be rejected as illegal testimony. Nor could it be rejected on the ground that it was opinion merely, for the rule, we think, is entirely well settled that the opinion of medical men in reference to the diseased condition of the mind, founded on the facts detailed by other witnesses or from their personal observation of the party alleged to be insane, is admissible evidence: Roscoe's Cr. Ev. 137; Wharton's Cr. L. 15; The Commonwealth v. Rogers, 7 Met. 500 [41 Am. Dec. 458]; Clark v. State, 12 Ohio, 483 [40 Am. Dec. 481]; State v. Brinyea, 5 Ala. 241. We presume that the true reason why the evidence was rejected, was, that in the opinion of the court it was wholly insufficient to prove the defense set up by the prisoner. But it must be borne in mind that the duty of the court is to decide on the legality and admissibility of the evidence, and not its sufficiency. The sufficiency of the proof is a matter exclusively for the jury, and it will not be improper for the court to instruct them as to the degree of certainty that the evidence should produce upon their minds. When the plea of insanity is interposed to protect one from the legal consequences of an act which amounts to a crime, to render the defense available, the evidence must be such as to convince the minds of the jury that at the time the act was done the accused was not conscious that in doing the particular act he was committing a crime against the laws of God and his country. It he knew right from wrong, and knew that he was violating the law, he is then guilty, for it is this conscious knowledge, con

nected with the act, that constitutes the crime. This appears to me to be the result of all the cases upon this subject: See Winslow on Insanity, 2-10; Roscoe's Cr. Ev. 778, 786.

If, therefore, the accused insists that he was insane, he must adduce proof that will satisfy the jury that the act was not connected with the knowledge of its criminality, and this proof should be clear and satisfactory. It therefore follows that previous or subsequent insanity is no defense unless it existed at the time the act was done. Yet we can not reject evidence to prove insanity either before or after the act, for such evidence is proper to be weighed by the jury in coming to a conclusion whether insanity existed at the time the act was done. The opinion too of medical men is by no means binding on the jury, even when they have had the most ample opportunity to observe the character and phenomena of this disease. Indeed, some of the most eminent judges have rejected the mere opinion of physicians altogether. In the trial of the Earl of Ferrers, Lord Hardwicke said: "You may ask the witness what are the indications of insanity, but you shall not transfer the witness to the jury-box and ask his opinion whether insanity existed or not." But it is now settled that the opinions of medical men may be admitted as evidence to be weighed by the jury; but if the whole evidence does not satisfy their minds that insanity existed at the time the act was done, they should find the prisoner guilty, although the medical witnesses were of the opinion that the prisoner was insane.

The physician who attended the deceased stated that the wound inflicted by the prisoner at one time partially healed, and he thought the deceased recovering, and that he probably would have recovered had not a fresh hemorrhage occurred, which in his opinion resulted from some imprudent exertion. But there was no other evidence that the deceased made any imprudent exertion. The witness further stated that the wound caused the death. On this evidence the prisoner requested the court to charge the jury that if they believed that the deceased would have recovered but for some improvident act of his own, or from some other cause over which the prisoner had no control, then they could not find him guilty of murder. This charge the court refused to give. The law on this subject is thus laid down by Lord Hale: "If a man gives another a stroke which, it may be, is not in itself so mortal but that, with good care, he might be cured, yet if he dies of his wound within the year and day, it is homicide or murder, as the case is, and so it hath been always

ruled. But if the wound or hurt be not mortal, but with ill applications by the party, or those about him, of unwholesome salves or medicines the party dies, if it can clearly appear that this medicine, and not the wound, was the cause of his death, it seems it is not homicide; but then that must appear clearly and certainly to be so. But if a man receives a wound which is not in itself mortal, but, either for want of helpful applications or neglect thereof, it turns to a gangrene or a fever, and that gangrene or fever be the immediate cause of his death, yet this is murder or manslaughter in him that gave the stroke or wound, for that wound, though it were not the immediate cause of his death, yet if it were the mediate cause thereof, and the fever or gangrene was the immediate cause of his death, yet the wound was the cause of the gangrene or fever, and so consequently is causa causati:" 1 Hale's P. C. 428. Nor will neglect or disorder in the person who receives the wound excuse the person who gave it. Thus it was resolved that if one receives a wound who neglects to cure it, but is disorderly and does not observe that rule that a wounded person should, if he die, it is murder or manslaughter, as the case may be; because if he had not received the wound, he had not died: Rew's Case, Kel. 26; Roscoe's Cr. Ev. 574; 1 Russ. on Cr. 529; The Commonwealth v. Green, 1 Ashm. 289. If the death be owing truly to the wound, it signifies not that the deceased would have recovered under more favorable circumstances, or with more prudent care; the death being the result of the wound, the party inflicting it must be held responsible for it. This is the settled rule of law, and it shows that the court did not err in refusing to give the charge requested.

For the error we have pointed out, in rejecting the evidence offered, we must reverse the judgment, and the cause must be remanded for another trial.

OPINIONS OF PROFESSIONAL MEN ON QUESTIONS OF INSANITY, based upon facts proven at the trial, are competent evidence: See Commonwealth v. Rogers, 41 Am. Dec. 458; Doe ex dem. Sutton v. Regan et al., 23 Id. 466; McCurry v. Hooper, 46 Id. 280.

INSANITY MUST BE SHOWN BY CLEAR AND CONVINCING PROOF, but if the jury entertain a reasonable doubt of the defendant's sanity, they should ac quit him: See State v. Marler, 36 Am. Dec. 398, and note, where the subject, "insanity as a defense on an indictment for crime," is treated of at great length; also Commonwealth v. Rogers, 41 Id. 458, and note; McCurry v. Hooper, 46 Id. 280; Freeman v. People, 47 Id. 216.

FOR PRESUMPTIONS AS TO SANITY OR INSANITY, see Grabill v. Barr, 47 Am. Dec. 418; Rogers v. Walker, Id. 470.