committing, or if he did know it, that he did not clearly understand that what he was doing was wrong, then they should acquit him upon the ground of insanity. This was as far as the court could possibly go in favor of the appellant, under the law. It was cer tainly as liberal as his counsel could reasonably ask.

The point attempted to be made by the appellant's counsel that the evidence was insufficient to justify a verdict of murder in the first degree, is clearly untenable. The counsel contends that the evidence did not show such a deliberation and premeditation as is necessary to constitute that degree of murder, and refers us to section 519, criminal code, the latter portion of which provides that "deliberation and premeditation, when necessary to constitute murder in the first degree, shall be evidenced by poisoning, lying in wait, or some other proof that the design was formed and matured in cool blood, and not hastily upon the occasion." This clause of said action evidently requires that there shall be proof in such a case that the accused not only designed the killing, but that the design was formed and matured iu cool blood, and not hastily upon the occasion. In cases of poisoning or lying in wait, the facts themselves are sufficient proof that the design was so formed and matured. In this case there was clear proof of lying in wait. The circumstances proved at the trial strongly indicated that the appellant intercepted his wife and the deceased when going home from the ball, and deliberately shot deceased and shot at his wife; and it was shown by testimony that he had declared openly while the ball was going on that he would kill the man who should take his wife home that night. His counsel does not contend that the design was formed and matured hastily upon the occasion, or that it was not a deliberate and premeditated act; but he claims that the evidence shows that the appellant did not intend the killing of the particular person he did kill. And the circuit court charged the jury that "if they had any reasonable doubt as to whether the intention might not have been to kill the defendant's wife, or some person other than Alfred Jenke, and that, missing his aim, the defendant killed Alfred Jenke by mistake, then the crime is murder in the second degree." I am unable to understand how the fact claimed by counsel and suggested by the court in the charge could possibly have lessened the degree of appellant's guilt. That was not the rule at common law: See Wharton's American law, 965. And I cannot see that the statute has changed it. Providing for two degrees of murder does not necessarily change the rule. The peculiar characteristic of the crime is malice. That must exist in either case, but in the case of murder in the first degree it must have been deliberate and premeditated. The term "malice," however, as used in connection with the crime, "is not restricted to spite or malevolence, but is understood to mean that general malignity and recklessness of the lives and personal safety of others which proceed from a heart void of a just sense of social duty, and fatally bent on mischief:" See vol. 3, sec. 144, Greenleaf's evidence.

The assassin who lies in wait, harboring in his bosom a murderous design to slay a human being, cannot extenuate his offense because he did not kill the particular person he designed to. All the circumstances constituting murder in the first degree are present, and if he is guilty at all, he is guilty of that crime, and there is no more reason for lessening the degree of the crime in consequence of that circumstance than there would be in acquitting him out and out. He has exhibited the same malignity and recklessness in the one event he would have displayed in the other, and the consequences to society are just as fearful. But if the views of appellant's counsel and of the circuit court, as manifested in the part of the charge referred to, were correct, we would have no right to disturb the verdict of the jury. There was evidence in the case tending to show that the appellant intended to kill any man who should go home with his wife that night, irrespective of the person it might be, and their verdict that he intended to kill Jenke is final upon that point. The exclusion of the evidence of Smith, Mendenhall and McGuire, witnesses produced on behalf of the defendant as to what was said in the respective conversations which they had with him, was not error. His counsel could not claim, as a matter of right, the privilege of calling out statements the appellant made in the various talks they had with him. The statute permitting the opinion of an intimate acquaintance to be given respecting the mental sanity of a person, does not contemplate that. The section referred to, section 696, civil code, provides that evidence may be given on the trial of the following facts:

10.

*

*

* the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given."

Under this subdivision of the section the inquiry will be first, whether the witness is acquainted with the person, and the character of that acquaintance. Second, what the opinion of the witness is respecting the mental sanity of the person; and, third, the witness' reason for his opinion. The reason may be based upon the peculiar appearance of the person, his change of demeanor, the strange manner of his conversation, or any other singular feature he exhibits. Such inquiry does not necessarily extend to the subject of the conversation or to the words used by the parties to it, unless called out upon the cross-examintion. The appellant's counsel has cited us to several authorities in support of the right to call out the statements made in such conversations as they occurred. Among them note 4 to section 440, 1 Green. Ev., which says that "when the witness has had opportunities for knowing and observing the conversation, conduct and manners of the persons whose sanity is in question, it has been held, upon grave consideration, that the witness may depose not only to particular facts but to his opinion or belief as to the sanity of the party formed from such actual observations." The other authorities to which he refers do not seem to be in point, and I can not see that this goes farther than we have indicated

above; the language quoted from the note implies no more than the witness may describe the conversation, conduct and manner of the person whose sanity is in question. To undertake to detail all the conversations a witness has had with such person, or to give his statements literally or in substance, would be protracting a trial to an unnecessary length and be likely to elicit a great amount of irrelevant and immaterial matter. The substantive part of this character of evidence is the opinion of the witness that usually has been formed from many circumstances that would be difficult to describe, but they have impressed the mind of the witness, and to great extent have influenced his belief; the reason for the opinion may not be clear and satisfactory, but the fact that he has been an intimate acquaintance with the person, has been able to observe any striking difference in his manner and conduct, to mark the changes exhibited and to compare his habits and actions with those of his past life, adds great weight to his testimony on that question. If the witness has discovered any singularity in the style of the person's conversation, or incoherency in his manner of talking, he can testify to it without detailing what was said at the time. There was no necessity of dragging out the trial of the case longer than it was. It certainly occupied time enough without that.

The testimony of Lyon, Bradstedter and Almon Smith was properly excluded. The question to Lyon as to what he knew of the mental temperament of appellant, and as to whether it was mild or not, that to Bradstedter as to whether he had the same opinion then he had before concerning the sanity or insanity of the appellant, and that to Smith as to whether he remembered any conversations he had with appellant about appellant's wife and what statements he made, so far as we are able to discover, were immaterial; and the question to Smith as to how the appellant's conduct upon the night of the homicide compared with the conduct and actions of a rational man, called for the opinion of a non-professional witness, which was not admissible, except under the circumstances provided for in the statute above referred to. The admission in evidence of the opinions of Dr. Plummer, Samuel Smith and William Hickey was objected to in each case upon the grounds of the incompetency of each of said witnesses to give an opinion upon the subject. The only question raised by the objection was as to whether these witnesses were intimate acquaintances of the appellant within the sense and meaning of said subdivision 10 of section 696, civil code; the meaning of the word "intimate," as used in said provision of the statute, is close friendship or acquaintance, familiarity. It is there employed to qualify the word acquaintance, and the legislature evidently intended by the terms "intimate acquaintance" that the witness, in order to be competent to give an opinion in such a case, should be more than a casual or an ordinary acquaintance of the person whose sanity was drawn in question. The preliminary examination of these witnesses disclosed the fact that each of them had been acquainted with the appellant for several years and been upon familiar terms with him.

Dr. Plummer testified that he was an intimate acquaintance of the appellant; that he was engaged in the sale of drugs, paints, oil and glass, and that appellant had dealt with him for several years; thought he had met him during the last year fifty times; that appellant had done work for him; had painted his barn; that he talked with him probably a dozen times about the work while it was being done. Samuel Smith testified that he had been acquainted with the appellant about four years and a half; that he knew him very well; that during a time about three years before, he met him very often; that within the last year he had seen him every Sunday at a certain beer garden; had passed and repassed him on the street, and had conversations with him frequently; had met him often; talked with him at the beer garden and heard him converse with others; met him nearly every Sunday afternoon and evening during the past summer at the beer garden; noticed that he had a little girl with him at one time and a dog at another; thought they had been at the beer garden on as many as twenty Sundays.

William Hickey testified that he had been a policeman in Portland off and on for the last fourteen years; that he had known appellant since 1867; became acquainted with him about five years ago at the St. Louis hotel; was intimate with him; had lived near him; had met him a great deal, and had conversations with him every time he met him; had charge of the beat in which appellant lived. The testimony of neither of these witnesses is entirely satisfactory as to his qualifications to give an opinion respecting the appellant's mental sanity. They each, however, show a state of facts from which it might be inferred that they, severally, were such acquaintances, as the statute prescribes; and the question as to whether or not they maintained that relation to the appellant had ultimately to be determined by the jury. The circuit court may have believed the jury better qualified to pass upon the question than the court was, and as the evidence tended to show that the witnesses were intimate acquaintances of the appellant concluded to leave it to them. Again, the circuit court was a better judge of the question than this court can be. The witnesses were before that court and it could form a better idea as to their competency in that particular than this court is able to, not having seen and heard them testify. In view of these circumstances we do not believe we would be justified in interfering with the conviction of the appellant upon this point. The appellant's counsel also urged at the hearing as an objection to the admission of the said opinions that the reasons upon which they were formed were not given. That objection. should have been made at the trial. The witnesses could have been required to give the reasons for their opinions, and if that were refused it should have been made a special ground of objection, which does not appear to have been done. A point has also been suggested in regard to the admission of evidence of appellant's excessive drinking during the year preceding the time of the homicide. That evidence may have been material to explain or account

for appellant's change of conduct and peculiarity of manner during that time regarded by his witnesses as evidence of his insanity, and we presume that it was admitted for that purpose. We are unable to discover any such error in the record as would require a reversal of the judgment of conviction, and we therefore affirm it.

Let the usual judgment of affirmance be entered herein applicable to this class of cases.

DALTON ET AL. v. EAST PORTLAND.

Filed December 8, 1884.

TAXATION-COMMON COUNCIL OF EAST PORTLAND-RAISING ASSESSMENT.-The common council of East Portland, while it has power to equalize the assessment for municipal purposes, has no power to list and value the taxable property of the city for the purpose of making an assessment, nor to add real or personal property to the assessment already made, which may have been omitted, nor to raise the aggregate assessed value of each and every assessment a given per cent. above the value as assessed and certified to them.

APPEAL from Multnomah county. The opinion states the facts. E. 0. Doud and Ira Jones, for the appellant.

S. R. Harrington, for the respondent.

LORD, J. The property of the plaintiffs was levied upon and advertised to be sold by the defendant, for the payment of taxes. The object of this suit is to enjoin such sale, and the collection of the taxes upon which it is predicated. The question to be decided arises upon a general demurrer to the sufficiency of the complaint as a cause of suit. That portion of the complaint to which the controversy is mainly directed, and out of which the disputed question arises, is, in substance, that for the levy of the city taxes for 1884, the city recorder took from the assessment roll of Multnomah county a list of the taxable property of the city of East Portland. That on the third day of December, 1882, he certified this list to the committee on ways and means of the common council. That said committee estimated the value of the property contained in said list from the city assessment of 1883, with twenty per cent. added thereto, etc. It is the raising by the city council the assessed value of all the property assessed in the city twenty per cent, which constitutes the alleged ground of error or illegality. In the solution of this question the principle must not be lost sight of, that in constituting a grant of power to tax, made by the state to one of its municipalities, the rule of strict construction applies: Cooley on Taxation, 209; Dillon on Mun. Corp., sec. 605. The reason of the rule is obvious. The source of the power is wholly statutory, and, as its exercise may result in the divestiture of the citizen's property, it is primarily essential that the authority to exercise it should be given. The authority "to assess, levy and collect taxes," is expressly conferred upon the city of East Portland (subd. 2, sec. 2, art. IV, city charter), and by pursuing the mode prescribed, and through the agencies authorized by its charter, the city may lawfully