
    The People, plaintiffs in error, against Eastwood, defendant in error.
    On the question whether a person was intoxicated, it is competent to ask a witness who saw and observed him on the occasion referred to, whether, in his judgment, he was then under the influence of intoxicating liquor.
    The question does not call for an answer in violation of the general rule which excludes the opinions of witnesses.
    That a prisoner charged with the crime of murder was intoxicated at the time he caused the death, may he material to explain his conduct at and prior to the time; and also, in reference to the design with which the act was perpetrated. Per Mitchell, J.
    The defendant Eastwood was indicted, jointly with one La Rock, for murder, in killing Edward Brereton. The defendant, having demanded a separate trial, was tried at the Monroe county oyer and terminer, in May, 1855, and convicted. The defendant sued out a writ of error, returnable in the supreme court, and a general term of that court in the seventh district, reversed the judgment of the court of oyer and terminer, and ordered a new trial. Thereupon a writ of error was issued on behalf of the people, returnable in this court. Several questions were presented by the record of conviction and the bill of exceptions taken by the defendant on the trial; this court passed upon but one, which was the exception hereinafter stated. It was proved by the prosecution that, in January, 1855, the deceased, Edward Brereton, and a relation by the name of Daniel Brereton, were driving cattle along the highway, and while so engaged an affray occurred between them and the prisoner and La Bock, in which none of the parties received serious injuries, although considerable violence was used. After this occurrence the Breretons proceeded along the road with their cattle, the prisoner and La Bock following them; the prisoner using profane and violent ’language, and making threats that lie would kill deceased. Soon after the first affray they came up to the deceased, having clubs in their hands, and Edward Brereton was struck and injured, from the effects of which he soon died. The witnesses for the people described the conduct of the prisoner immediately preceding the fatal encounter as rude and violent towards other persons whom he met in the highway. After the prosecution rested, one Green was called for the prisoner, and testified that he arrived at the scene of the affray soon after the deceased was knocked down; that he then saw Eastwood, with whom he was well acquainted, and who was his relative; that he was accustomed to see men under-the influence of liquor and intoxicated; and that the prisoner appeared as though something was the matter with him. The counsel for the prisoner then put the following question to the witness: From his conduct and deportment, and other facts connected with it, state whether, in your judgment, he was to any considerable extent under the influence of intoxicating liquors ? The counsel for the prosecution objected to this question on the ground that it was not competent for the witness to state his opinion; that, he must be confined to a statement of the facts. The court sustained the objection, and the defendant’s counsel excepted. The witness then testified to some facts tending to prove that the prisoner was intoxicated.
    
      E. A. Raymond, district attorney, for the plaintiffs in error.
    
      T. Hastings, for the defendant in error.
   Mitchell, J.

The prisoner and La Bock had, a short time prior to the fatal affray, quarreled with Brereton, the deceased, and another Brereton, who were driving cattle • along the road, and had been discomfited; they, or one of them, probably received some very severe blows ; they still continued, after this, walking near the Breretons, interfering with them and keeping up the quarrel; they also used language which indicated a design to kill the Breretons. Still it was a question for the jury, whether the words were used according to their ordinary import, or were the expressions of men accustomed to the use of language much more severe than they intended to carry out, or even whether it was the comparatively unmeaning and intemperate language of intoxicated men. A witness was accordingly asked whether, from the prisoner’s conduct and deportment, and' other facts connected with them, he was (in the judgment of the witness) to any considerable extent under the influence of intoxicating liquors. Objection was taken, that it was not competent for the witness to state his opinion; the question was on this account excluded, and the defendant excepted. Still the witness did testify to facts tending to show that the prisoner was probably intoxicated. The materiality of the condition of the prisoner was not disputed by the judge, although it now is by the counsel for the people; and he contends that the prisoner can never show intoxication, in defence or excuse; that intoxication is only an aggravation of the offence.

For one to drink, that he may drown his conscience and the better nerve himself to commit a crime, is to aggravate his offence; but if one has lost his senses, and become insane, he has ceased to be accountable to the criminal law, whether the loss of intellect was caused by misfortune or his own imprudence in the use of intoxicating liquors, or by any willful act of his own. The loss of intellect takes away the faculty of possessing that “design” which is an essential part of the offence of murder. So if any other condition of the man deprives him of the power of knowing what he does, or of entertaining a design in acting, he cannot commit any offence of which design is an essential. If he willfully brought himself into that condition, he may be morally accountable for all his acts while thus degraded; but to make him liable to the criminal law, his offence must be brought within the definition of that law.

The question, whether the prisoner was intoxicated was also, material, that the jury might judge (as before stated) whether the threats used were the deliberate words of sober and bad men, or the idle and coarse language of drunken men; accordingly, the facts to show intoxication were received, not in this instance alone, but other witnesses also testified to them. Seth Keyes said, “ They appeared to be intoxicated.” Osborn Hanford said, “ I should think Eastwood had been drinking at the time, but I did not see him stagger.” The prosecutor, on the other hand, had, before this, proved that before either affray Eastwood and La Eock - had rudely interfered with other travelers, thus tending to exhibit them as ready for a row or a fight, and the first to provoke it. He showed that Eastwood took hold of the horse’s bits of a traveler, and shoved the horse of an old man off the track, claiming the track for himself; that he next had talk with men passing in a wagon ; and after that, had the first affray with the Breretons. The jury might believe this, if done by sober men, showed a deliberate design to do every kind of bodily harm, but if done by intoxicated men, might consider it merely a temporary excitement, without such design.

The objection was accordingly to the form of the question, as if it sought the witness’s opinion. If the opinion of the witness had been asked as to facts, not within his own observation, the objection would have been good ; as to such facts, opinions can be given generally only as to matters of science or art, and by men of the particular science or art. The court of oyer and terminer were probably misled by the form in which the question was put. The inquiry was not intended to bring out an opinion, but to lead the witness to answer to a fact which he saw. If the- question had been (as it might have been) direct, “What was the condition of the prisoner as to sobriety at that time?” it probably would have been answered (as it had been before, by other witnesses) without objection. It did not become incompetent by adding the words, “ in your judgment,” while the judgment was restricted to what the witness saw. A child six years old may answer whether a man (whom it has seen) was drunk or sober; it does not require science or opinion to answer the question, but observation merely; but the child could not, probably, describe the conduct of the man, so that, -from its description,' others could decide the question. Whether a person is drunk or sober, or how far he was affected by intoxication, is better determined by the direct answer of those who have seen him than by their description of his conduct. Many persons cannot describe particulars; if their testimony were excluded, great injustice would frequently ensue. . The parties who rely on their testimony will still suffer an inconvenience, for the court and the juiy are always most impressed by those witnesses who can draw and act a living picture before them of what they have seen, so that if there is any controversy as to the fact, such witnesses control; if there is no controversy as to it, the general testimony answers all useful purposes. The supreme court was right in granting a new trial on this ground; and the judgment and order granting such new trial should be affirmed.

Judgment accordingly.  