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-EVIDENCEMOTIVE 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 purpose, 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.

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

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long-continued indulgence in alcoholic liquors. "A sane man who voluntarily drinks and becomes intoxicated is not excused because the result is to cloud his judgment, unbalance his reason, impair his perceptions, derange his mental faculties, and lead him to the commission of an act which in his sober senses he would have avoided. Upon the other hand, if one, by reason of long-continued indulgence in intoxicants, has reached the stage of chronic alcoholism where the brain is permanently diseased, where the victim is rendered incapable of distinguishing right from wrong, and where permanent general insanity has resulted, then, and in such case, he is no more legally responsible for his acts than would be the man congenitally insane, or insane from violent injury to the brain." (People v. Fellows, 122 Cal. 233, 239, [54 Pac. 830, 832]; see, also, People v. Travers, 88 Cal. 233, 239, [26 Pac. 88]; People v. Rogers, 18 N. Y. 9, [72 Am. Dec. 484]; People v. Hower, 151 Cal. 638, 642, 643, [91 Pac. 507].)

While there can be no doubt that the case as made by the evidence justified the giving of an instruction upon settled insanity brought about by an incessant and excessive use of intoxicating liquors for a long period of time prior to the commission of the assault, we believe that those rejected instructions which purported to contain concrete statements of the law as applied to the present case were, under the evidence, framed in language entirely too general. The evidence strongly tends to show-indeed, there is no other character of showing upon that subject-that, to whatever extent the defendant's mentality had been impaired, his condition in that regard had been caused by the use of intoxicants, but some of the instructions proposed by the accused but rejected were so phrased as to have submitted to the jury, if given, the question, not whether the defendant was afflicted with settled insanity caused by the use of intoxicating liquors, but whether from any cause he was the victim of permanent insanity, as to which latter proposition there was no evidence presented or received. All the concrete instructions on the question of insanity in this case should have been, with proper qualifications, made applicable solely to insanity caused by the use of intoxicating liquors, so that the jury could not have been misled as to the recognized distinction in law between the mental derangement so caused which would not excuse a criminal act and the insanity so caused

which would, because of a defect of criminal or any intent necessarily the result of such insanity, excuse such an act. This is not to say, however, that an abstract or a general instruction on the question of insanity as applied to crimes should not have been given. To the contrary, we think such an instruction should have been submitted for the purpose of enlightening the jury upon the general proposition that one committing a criminal act while laboring under a state of "settled" insanity resulting from any cause whatsoever cannot be held liable for such act.

But we are of the opinion that the learned trial judge, ordinarily singularly accurate and correct in the statement of pertinent legal principles to juries, permitted himself to be led into error seriously prejudicing the defendant by giving an instruction in which, without qualification, it was declared: "On this subject [that of insanity] the appellate court in a recent decision uses this language, which I will read to you as a part of the instructions in this case: '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.'"'

The foregoing language was taken from the opinion in the case of People v. Bremer, 24 Cal. App. 315, 316, 317, [141 Pac. 222], and the principle stated thereby is unquestionably correct as an abstract proposition. But, as applied to the present case, the instruction plainly invaded the province of the jury. 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 one of the most important questions of fact involved in the case, and one, obviously, whose solution was solely and exclusively a function of the jury. It has been suggested, however, that, since the court declared that it was taken from an appellate court decision, the instruction, so far as it purports to deal with facts, must be viewed as having reference not to the present case but to the case from the opinion in which its language was taken, and that its effect, therefore, so far as this case was concerned, was merely to state the application generally of the rule relating to the effect of voluntary