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the appellate court must treat every conflict of the evidence as resolved in favor of the respondent, and must give him the benefit of every inference that can reasonably be drawn in support of his claim. (Kimic v. San Jose-Los Gatos etc. Ry. Co., 156 Cal. 273, 277, (104 Pac. 312].) It is admitted by counsel for respondent that under the first cause of action as stated in the complaint the damages for injuries from the assault and battery were limited at the time of the trial to a period of three months following the date of the transaction. This being so, it may be that the amount of the verdict under the evidence in this case would be excessive if applied to the first cause of action alone. But the plaintiff's recovery also includes the second cause of action, namely, for an unlawful imprisonment. The jury was instructed that it must not allow damages by way of example or penalty, and that as to the first cause of action the recovery must be limited to facts or circumstances arising within three months from the date of the assault. The second cause of action was submitted under the general instruction authorizing an assessment for actual damages only. There was evidence showing that the plaintiff was an unmarried woman about forty-five years of age and at that time in good health. She suffered much humiliation and distress of mind at the time and afterward, caused by being arrested and imprisoned in a caged wagon in the public street and in the presence of her neighbors. That this caused great nervous excitement and shock which seriously affected her health for a considerable time thereafter is indicated by evidence sufficient legally to warrant the verdict, and we are not justified in setting it aside as excessive, or as having been rendered as the result of passion or prejudice or anything other than a fair consideration of the evidence.

Objection is made to the eighth instruction given to the jury. That instruction defines an arrest and states that “for a private person to take another into custody, without legal justification, and restrain him of his liberty for a time and then turn him loose without taking him before a magistrate, or to a peace officer, is unlawful and constitutes a trespass upon the liberty of the one so restrained for which he may be compensated in damages." Appellants' criticism of this instruction is that the court failed to adequately explain the words "without legal justification,” and it is contended that

this omission was extremely prejudicial to the defendants as implying that under the circumstances of the case the plaintiff was entitled to damages. A sufficient answer is that in other instructions, to which no objection is made, the court gave instructions showing the circumstances under which an arrest or imprisonment is legal or justifiable and also the circumstances under which an arrest or imprisonment is not legal or justifiable.

The judgment and order are affirmed.

James, J., and Shaw, J., concurred,

[Crim. No. 350. Third Appellate District.-September 14, 1916.) THE PEOPLE, Respondent, V. FRANK GOODRUM,

Appellant.

CRIMINAL LAW-ASSAULT TO MURDER-INSANITY FROM USE OF ALCO

HOLIC LIQUORS—REFUSAL OF INSTRUCTION ON LAW OF SETTLED INSANITY PREJUDICIAL ERROR.--In a prosecution for the crime of assault to commit murder, it is prejudicial error to refuse an instruction proposed by the defendant on the law of insanity brought on by the use of intoxicating liquors that will excuse a criminal act, where it was expressly admitted by the people that the defendant was not intoxicated at the time of the assault, and there was evidence introduced which would support the theory that the alleged insanity of the defendant was the effect of long-continued intoxi.

cation prior to the commission of the crime. ID.-- CHARACTER OF MENTAL DERANGEMENT-ERRONEOUS INSTRUCTION

QUESTIONS OF FACT.-The reading to the jury, as a part of the instructions in the case, of the following language taken from a recent decision of the appellate court, to wit: "Defendant's normal condition was that of a sane man. His alleged mental derangement was not only transient in character, but such condition was the result of his voluntary acts in the use of alcoholic liquors. Under such circumstances, one prosecuted for the commission of a crime cannot urge such condition as a defense thereto,"—is prejudicial error, as the question whether the defendant's mental derangement was only of a transient character, and his condition the result of his voluntary acts in the use of alcoholic liquors, was a question solely and exclusively

for the jury. ID.-TEMPORARY AND SETTLED INSANITY_USE OF INTOXICANTS.--There

is a well-recognized distinction in law between temporary insanity

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or mental aberration brought on by voluntary intoxication and "settled insanity" superinduced by long.continued indulgence in alcoholic liquors. A sane person who voluntarily drinks and becomes intoxicated is not excused; but if one, by reason of long-continued indulgence in intoxicants has reached the stage of chronic alcoholism where the brain is permanently diseased and where permanent general

insanity has resulted, he is not legally responsible for his acts. ID.-TEMPORARY DERANGEMENT FROM USE OF INTOXICANTS—EVIDENCE

MOTIVE OR INTENT.—Mere temporary mental derangement resulting from the use of intoxicants, whether it manifests itself in the form of delirium tremens or in some milder form, cannot operate to absolve a person from liability for a criminal act, and testimony disclosing that precise mental state at the time the criminal act was committed is admissible only where the existence of a particular pur. pose, motive, or intent is a necessary element of the crime charged, and then it may be considered by the jury, not as the predicate for the full exoneration of the accused, but solely to enable or assist them in determining the purpose, motive, or intent with which he

committed the act. ID.-SCOPE OF DEFENSE-OPENING ADDRESS OF COUNSEL. A defendant

in a criminal case, in making a defense and proving his case, is not necessarily required to remain strictly within the literal scope of the defense outlined by his counsel in his opening address to the jury.

APPEAL from a judgment of the Superior Court of Tehama County, and from an order denying a new trial. John F. Ellison, Judge.

The facts are stated in the opinion of the court.

J. M. Lee, for Appellant.

U.S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

HART, J.—Under an indictment charging him with the crime of assault to commit murder, the defendant was convicted of the crime of assault with a deadly weapon, and was sentenced to imprisonment in the state prison for the term of eighteen months. This appeal is prosecuted by the defendant from the judgment and the order denying him a new trial.

The assault was committed on the wife of the defendant, in the city of Red Bluff, on the twentieth day of December, 1915.

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Domestic dissensions had led to the separation of the parties, and for some little time prior to the date of the assault the defendant had not lived with his wife.

The undisputed facts are: That on the said twentieth day of December, between the hours of 5 and 6 o'clock P. M., Mrs. Goodrum and her mother, Mrs. Harriet B. Reyon, who was then stopping at the home of the former, were on their way home from the business part of the city, when they were approached from the rear by the defendant. He placed his hand upon the shoulder of his wife and, addressing her, said: "Belle, I want to speak to you a minute." Both Mrs. Goodrum and Mrs. Reyon turned and faced him, and at the same time the defendant drew a revolver and pointed it in the face of his wife. Mrs. Reyon grabbed the weapon, a tussle ensued, and the weapon was discharged, no one, however, being struck by the bullet. Thereupon the defendant drew a knife and began cutting and slashing his wife about the head and left arm. Several ugly, though not serious, wounds were thus inflicted upon the head, left arm, and hand of Mrs. Goodrum. Mrs. Reyon called loudly for assistance, and finally the defendant desisted from his attack and stepped away a distance of twelve or fifteen feet and threatened and apparently attempted to commit suicide.

Mrs. Goodrum was taken to a drug-store near by, where she received the attention of a physician, and the defendant was placed under arrest, taken to the county jail, and subsequently, on account of a gash across his throat, inflicted by a knife, presumably by himself, and weakness resulting from said wound, was conveyed to the county hospital, where he remained for several weeks.

The defense interposed at the trial was that of insanity, and testimony was introduced to support it, a number of "intimate acquaintances” testifying that in their opinion the defendant was insane on the day upon which the assault was committed. And the defendant himself testified that he had no recollection of the assault or of any incidents connected with himself occurring on that day.

The complaint against the result reached by the jury is based solely upon certain instructions given by the court upon the issue of insanity and also upon the action of the court in rejecting certain instructions proposed by the defendant upon that question,

While it was expressly admitted in court by the district attorney that the defendant was not under the influence of intoxicating liquor at the time of the assault, it was the theory of the people at the trial that if the defendant's mentality was not wholly normal or was, to the extent of rendering him irresponsible, impaired on that occasion, such condition of mind was occasioned wholly by the use by him of intoxicating liquors for some period of time prior to the assault. And, in harmony with this theory, the court instructed the jury, basing its instructions upon that question upon section 22 of the Penal Code, which reads as follows: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act."

The court correctly instructed the jury, in accordance with the provisions of the foregoing section, that temporary insanity produced by the voluntary use of intoxicating liquor is no excuse for the commission of crime. It is claimed, however, that, since it was admitted that the defendant was not in an intoxicated condition on the day. that the assault was committed, there was, under the proofs, ample room for the theory that the alleged insanity of the accused was not of a temporary character as the result of his voluntary intoxication, but the effect of long-continued intoxication for a period prior to the time of the commission of the act, and was, within the meaning of the law, "settled insanity''; that the court should have instructed upon that theory, and erred to the prejudice of the defendant by refusing to do so.

In view of the fact that there was some testimony tending to show that the accused had, previously to the day of the difficulty, habitually imbibed intoxicating liquors to excess, and of the further fact that the people admitted that the defendant was not in a state of intoxication on the day of the assault, we think there is some force to this contention.

There is a well-recognized distinction in law between temporary insanity or mental aberration brought on by voluntary intoxication and “settled insanity" superinduced by

81 Cal. App.-28

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