ing his opinion, for the jury would be as well prepared to draw conclusions as the witness; but where, as in questions of insanity, an opinion must be based upon peculiarities of conduct, of speech, of looks, and other exhibitions, many of which are quite indescribable, a witness is allowed to help out his inability to reproduce these causes to the jury, by stating what impression they made upon him, the jury finally judging of the intelligence and candor and value of the opinion by the matter by which and the manner in which it was testified; but in the case before us the witness had disclosed no fact bearing upon the mental condition of defendant. That in the judgment of witness defendant did not attend to his duties to his satisfaction does not of itself afford the slightest evidence of sanity or insanity. We are not told whether he failed to perform his duties totally or partially, or whether there was some suggestive peculiarity in the manner in which he discharged them. To accept his opinion predicated upon that meaningless fact would be equivalent to taking his abstract unsupported opinion as to defendant's insanity. We think there was no error in striking out the answer. The witness was then asked particularly to "state how he acted while he was there, -his acts and conduct, "-and his answer was: "His acts were insanity, I say. I took him the first night he arrived at my place to be insane, and I didn't want him there." If this answer had been designedly artful it could not have more completely avoided an intelligent response to the call of the question for facts as to the conduct of defendant. "His acts were insanity." This was not a statement, nor an attempt at a statement of his acts or conduct, but the expression of the witness' opinion as to acts which he did not disclose. It was properly stricken out. This witness afterwards testified that the defendant was incoherent in his conversation, and that he had scarcely any clothes when became there. Whether or not these two facts being testified to would have justified the court in taking the witness' opinion as to defendant's insanity, we do not stop to consider, for his opinion was not thereafter asked for. So far as an opinion was expressed in his former answer, "I took him to be a man of insanity,' it had been properly stricken out, because the witness had then given no evidence which would authorize him to express an opinion. His subsequently giving such evidence, if he did, would not have the effect to restore to the record his expunged answer. We do not think defendant can complain of any ruling of the court in connection with the witness Lindsay.

J. G. Barnes, being called as a witness for the defendant, testified that he had known the defendant about five years; that defendant got angry upon very slight provocation, and when angry would deal in the wildest absurdities; that he made gestures with his hands, and spoke in a short, jerky manner; and that his appearance was slouchy. He was then asked the question: "Now, from facts within your personal knowledge, that you have related upon the witness

stand, what was your opinion as to the sanity or insanity of the defendant, John B. Leehman, at those times?" To this question the state objected as incompetent. The objection was sustained, and defendant excepted. If the testimony of this witness stopped here, a different question would be presented than is presented by the entire record. Insanity is not a legal term. In law books and in judicial opinions it is used in its popular sense, and signifies an unsoundness of mind-a derangement of the intellect. It may be complete or partial. Insanity is not always and necessarily a defense to a charge of crime. Whether it excuses from responsibility or absolves from guilt depends upon its degree. U. S. v. Faulkner, 35 Fed. Rep. 730; State v. Nixon, (Kan.) 4 Pac. Rep. 159; State v. Pagels, 92 Mo. 315, 4 S. W. Rep. 931; Leache v. State, (Tex.) 3 S. W. Rep. 544. In most of the states the test is whether a man has sufficient capacity and reason to enable him to distinguish between right and wrong; whether he is conscious that the act he is doing, or is about to do, is a wrong and forbidden act, and one that he ought not to do. In a very few of the states, where "moral insanity" is recognized as a defense, it is held to excuse responsibility for crime if the person charged, although perceiving the moral character of the act, had not the capacity of resistance, as where there was an entire destruction of the freedom of the will; but this distinction is not important in connection with the particular question now being considered. With these observations as to the test and degree of mental insanity which will excuse, let us look further at the testimony of this witness, and see if the defendant could possibly have been prejudiced by the ruling of the court. The next question to this witness was: "From facts within your personal knowledge, that you have testified to, you may state your opinion as to whether defendant, Leehman, was rational or irrational at those times." His answer was: "During the times that I have seen him I have always considered him irrational when excited." We are unable to apprehend the distinction between these two questions which the learned counsel for plaintiff in error seeks to maintain. It is true that "sanity" and "insanity" are terms more frequently found in the books than "rational" and "irrational," but we suspect that it is more the result of habit and convenience than because of any inherent or substantial difference in their meaning. Webster gives "rational” and “irrational" as synonyms for "sane" and "insane. In People v. Conroy, 97 N. Y. 62, defendant was convicted in the trial court of the crime of murder. One of the defenses was insanity. On the trial a witness, having testified to a conversation with the defendant shortly before the homicide occurred, was asked: "Were his acts at eight o'clock that night, in your judgment, rational or irrational?" The question, being objected to by the state, was disallowed by the trial court, and such ruling was held to be reversible error; the appellate court saying: "The evidence

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called for by this question was pertinent upon the issue of defendant's insanity, and the witness was competent as to the character of the conduct and conversation which he had observed." Possibly it may be true that the adjectives "rational" and "irrational" are more often applied to the acts of a person, as in the above case, than to the person, as in the case at bar, but when both are applied to the person, as in the two quoted questions in this case which we are considering, we think they mean the same thing; and that, when the witness testified in answer to the second question, that he considered defendant "irrational when excited," he meant, and the jury understood him to mean, precisely the same as though in reply to the first question he had answered he considered him "insane when excited." Upon cross-examination the witness was asked as follows: "State from what you know of him and have seen of him, whether he would be apt to know right from wrong. The defendant objected on two grounds: (1) As not being proper crossexamination, and (2) that it was for the jury to say whether he knew right from wrong. The objection was properly overruled. The witness had testified that in his opinion defendant was at certain times and under certain circumstances "irrational." The object of the direct testimony was to show that defendant was not responsible for his acts, but that, as we have already seen, would depend upon the degree or extent of his irrationality. The excusing degree would be incapacity to distinguish right from wrong, and so the witness was very properly asked in cross-examination, if, in his opinion, the irrationality that he had testified to was of such character or extent as to inca pacitate the defendant from knowing right from wrong. To have disallowed this question would have been to disallow the only test by which it could be determined whether the evidence was of any value or not; for, although at times or in a degree irrational or insane, in the opinion of the witness the important question was, what was his capacity for knowing "the wrong. fulness" of the act charged against him? As in the cases cited supra, this is the test of responsibility adopted by our Criminal Code, (section 6215, Comp. Laws.) The witness answered, "I think he knows right from wrong.' "Taking these several questions and answers together, we perceive no error in the rulings of the court in respect to them which could have prejudiced the defendant. Upon the redirect examination of this witness he was asked this question: "Is it your opinion that an irrational man can always know right from wrong?" The state objected that it was incompetent, and the objection was sustained. This was not cross-examination, calculated to probe the intelligence or the candor of his opinion already expressed, but the direct evidence of a witness called by defendant. He was not an expert. The object of evidence is to assist the jury in the correct and intelligent determination of the questions before them. The answer of this witness to this question, whether in the affirmatve or negative, could not

help the jury. Their opinion upon the abstract proposition covered by the question would have been as good as that of the witness. Whatever he might be able to tell them about that particular case would be of interest and helpful to them, but his cpinion as a layman upon an abstruse question in mental philosophy was clearly incompetent, and properly excluded. It is, however, suggested in argument that the excluded evidence would be competent as tending to explain the inconsistency of the two opinions that defendant was at times irrational, and that he still knew right from wrong; but the two answers were not inconsistent, but entirely consistent with each other, and needed no explanation to make them both intelligible to the jury. As we have before seen, the mental insanity which does not destroy the capacity to distinguish between right and wrong constitutes no defense.

The witness Lindsay was then recalled, and testified that be first saw the defendant on the night of July 13, 1889,-which would be two days after the homicide. It will be remembered that this witness had already testified to the acts, conduct, and peculiarities of defendant, from which, as appears by his answer, which was stricken out by the court, he "took him to be a man of insanity." He was then asked: "Did you ever see anything strange in his conduct, conversation, or demeanor? If so, you may state what. Answer. Yes, sir; quite." By the Court. That is, after the homicide? A. Yes, sir." Counsel for state objected to the testimony, and the objection was sustained. Defendant's counsel then offered to show by this witness "that the same condition of mind existed since the commission of the crime that did exist before the commission of the crime, and at the commission of the crime charged; and we desire to introduce witnesses for that purpose. The offer was overruled. That evidence of the subsequent acts and conduct of a person is often competent as bearing upon his mental condition at a prior time, is too reasonable and well established to be questioned, but it is not always competent. In Com. v. Pomeroy, 117 Mass. 143, this question was discussed at length. The court said: "Upon the question of sanity at the time of committing an offense the acts, conduct, and habits of the prisoner at a subsequent time may be competent as evidence in his favor. But they are not admissible as of course. When admissible at all it is upon the ground, either that they are so connected with or correspond to evidence of disordered or weakened mental condition preceding the time of the offense as to strengthen the inference of continuance, and carry it by the time to which the inquiry relates, and thus to establish its existence at that time; or else that they are of such a character as of themselves to indicate unsoundness to such a degree, or of so permanent a nature, as to have required a longer period than the interval for its production or development. It is for the court

* *

or judge presiding at the trial to determine, in the first instance, whether the facts offered to be proved would, if estab.

lished, fairly justify any inference_relating back to the time of the alleged offense. This inquiry always and necessarily involves not only the question of intervening time and occurrences, but also the character of the manifestations and the circumstances under which they were observed." There is no reason for believing, and it cannot be presumed that this witness would have testified differently upon this same subject-matter, to-wit, the conduct and appearance of defendant, than he had already. Its repetition could not have changed the state or force of the evidence. The acts of defendant so testifed to were very plainly, "of no special sig. nificance as indicating mental disease. They would have had no appreciable probative force if located at a time immediately preceding the homicide. The claim of error would be more meritorious if the rejected evidence would have tended, even moderately, to show a subsequent insani. ty; but it did not, and so the offer to show that the mental condition of the defendant was the same at the time of the commission of the crime as it was shown to be since, was not and did not involve an offer to show any other than a normal and rational mental condition. If defendant had been allowed to prove and had proved all his offer covered, it would not and could not have helped his defense of insanity. There was, then, no error in rejecting the testimony and the offer.

On the part of the state, in rebuttal, Dr. John Long was examined as a witness. After testifying that he had “heard all the evidence in this case upon the question of insanity," he was asked this question: "Now, from what you have heard detailed by the witnesses, what have you to say as to whether the defendant, John B. Leehman, knows moral good from evil, and right from wrong?" To this question defendant objected, “so far as it relates to knowing moral good from evil, as moral insanity is no defense to crime. The objection was overruled, and the ruling excepted to. The witness answered, "Yes, sir; he would." We cannot help regarding both the question and the objection to it as unfortunately phrased. Whatever may be the merits of the discussion as to whether moral insanity should or should not be recognized as a defense from crime, we do not think the question calls for an opinion as to the moral insanity of the defendant. The question is specifically directed to the capacity of the defendant to know or distinguish "moral good from evil, and right from wrong." In his Dictionary of Law, (page 550,) Anderson says: "Moral insanity describes a mind which, while undisturbed by hallucina. tion or delusion, and qualified to judge between right and wrong, is yet powerless to control conduct according to knowledge; as in kleptomania." In the very limited number of states where moral insanity is recognized as a defense the term is applied to and means the condition of incapacity to resist an impelling inclination, although there is present the consciousness that the act to be committed is wrong; in other words, the incapacity of self-control, so that there is no longer

freedom of the will. This condition is illustrated by GIBSON, C. J., in Com. v. Mosler, 4 Pa. St. 267: "But there is a moral insanity # 營 consisting of an irresistible inclination to kill, or to commit some other particular offense. There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees, but cannot avoid, and placing it under a coercion which, while its results are clearly perceived, is incapable of resistance." See, also, Spencer v. State, (Md.) 13 Atl. Rep. 814; Leache v. State, (Tex.) 3 S. W. Rep. 539. It is very evident that the question objected to did not relate to, nor call for the opinion of, the witness as to the moral insanity of defendant. What, then, was the effect of the objection? The ground of the objection was specifically stated, and was that moral insanity was no defense to crime. The objection was not relevant to the question. The objection was not to the witness expressing an opinion as to the mental insanity of defendant, which the question distinctly called for, but to the expression of opinion as to his moral insanity, which the question did not call for. The objection was misdirected, and must fail. The ground of the objection having been particularly stated, all other grounds were waived. People v. Manning, 48 Cal. 335; Floyd v. State, (Ala.) 2 South. Rep. 683; Larrison v. Payne, 5 N. Y. Supp. 221; Brackett v. Nikirk, 20 III. App. 525; Cox v. Cody, 75 Ga. 175. Nor will a party on appeal be permitted to change the ground of his objection. Tooley v. Bacon, 70 N. Y. 34; People v. McCauley, 45 Cal. 146. This discussion covers all the exceptions appearing on the record. We find no error, and the judgment of the court below must be affirmed. The cause is remanded, with directions to carry the judgment into effect according to law. All the judges concurring.

SMITH V. LAWRENCE et al.1 (Supreme Court of South Dakota. June 19, 1891.) ELECTIONS PARTIES IN MANDAMUS COUNTY BOARD OF CANVASSERS-DUTIES CERTIFICATES OF ELECTION OFFICERS CORRECTED ABSTRACT OF RETURNS-TENURE OF CANVASSER'S OFFICE. 1. When mandamus proceedings are instituted to redress a private wrong or enforce a private right, the party beneficially interested should be named as plaintiff.

2. When a plaintiff in mandamus proceedings demands greater relief than he is entitled to on the facts stated in his affidavit, he will not thereby be precluded from obtaining less relief, to which he is entitled under the facts stated.

3. Under section 1, c. 84, Laws 1890, a mahaving five commissioners, duly taken to the asjority of the county commissioners in a county sistance of the county auditor, constitutes with such auditor a legal board of canvassers, whether the county auditor is a candidate for office or not; such county auditor, however, acting only as clerk of said board in case he is a candidate for office. The provisions of section 18 of said chapter are called into exercise only in case the county auditor is a candidate for office, and he has taken to his assistance a majority of the county commissioners in a county having three commis. sioners, or only two of the other officers named 'Rehearing refused.

in section 1, except so far as it defines his duties as clerk of the board.

4. When returns are made by the proper offcers of a precinct in a county to the county auditor, within the proper time, it is the duty of the county board of canvassers to canvass and abstract the vote of such precinct, and, when such board fails or neglects to count, canvass, and abstract the vote of such precinct, it fails to perform a clear, plain, and specific duty imposed upon it by law, and mandamus is the proper proceeding to compel such board to perform its duty.

5. The fact that a board of canvassers has filed its abstract of the votes cast in a county with the county auditor, and adjourned sine die, and that the county auditor has issued a certificate of election to the person appearing by such abstract to have the highest number of votes for the office of sheriff, is no ground for a refusal of the writ, when it is shown that a part only of the returns have been canvassed, and the omitted part would have changed the result.

6. On the trial a document purporting to be signed by the judges of election, and taken with the poll-book from the sealed envelope forwarded to the county auditor from precinct No. 26, was offered in evidence by counsel for defendants, objected to, and excluded by the court. The document purported to detail the proceedings of the judges of election in reference to the votes of nine soldiers of the United States who were allowed to vote at said election in said precinct. Held, that this document was properly excluded by the court; that judges of election are not required or authorized to make or inclose any such document with their returns; and that it could have no force or effect, and was therefore incompetent, irrelevant, and immaterial. Held, further, that the certificate of officers not required or authorized by law has no more force or effect than the certificate of private persons. Held, further, that when votes have been received and deposited by the judges of election in the ballot-box, they have no further control over them except to count them, and include them in the entries they are required to make in their poll-books, and that any other statement by such judges in regard to such votes is beyond their powers as judges of the election, and clearly improper, and should have been entirely disregarded by the board of

canvassers.

7. The duties of boards of canvassers are purely ministerial. They are vested with no authority to take evidence, or hear or determine any question relative to the validity or regularity of any election, or as to the qualification of any voter who may have voted, or the eligibility or non-eligibility of any candidate voted for. Their duties are to open the returns, and make abstracts of the votes from all the precincts appearing by said returns, and to sign and certify to such abstracts.

8. Questions of the regularity of the election, qualification of the voters, fraud in the election, etc., are matters exclusively for the court in proper proceedings, and are not matters which boards of canvassers have authority to hear or determine.

9. The fact that, since mandamus proceedings have been instituted in this case, Faust, the opposing candidate for sheriff, has entered upon the discharge of the duties of sheriff of said Sully county, is no ground for refusing the writ.

10. The plaintiff is entitled to have the abstract made and filed with the auditor show who received the highest number of votes for the office of sheriff of that county, and, if the returns of Sully county show that plaintiff has the highest number, he is entitled to the benefit of such a corrected abstract, and the certificate to which such abstract shows he is entitled.

11. It not appearing that the county auditor has refused or neglected to perform any duty imposed upon him, he is not an indispensable party to these proceedings. The court will presume that he will perform the duties of clerk of the board of canvassers when convened, and file any

amended abstract that may be made by it, as county auditor, and issue the proper certificate

thereon.

12. Mateer, a member of the board of canvassers, was a member of the board of county commissioners of Sully county at the time he was taken as such canvasser. His term of office as county commissioner expired in January, 1891. Held, that he still continues a member of the board of canvassers for the performance of such duties as were imposed by law upon the board, and which it neglected to perform as such board of county canvassers, and can be properly required to meet with the other members of the board, and complete the canvass of the vote of Sully county.

13. Where the duty of the board of canvassers is clearly and specifically imposed by law, and it has neglected to perform that duty, no special demand is necessary. "The law itself makes the demand, and the omission to perform is the refusal."

(Syllabus by the Court.)

Appeal from circuit court, Sully county. Crawford & De Land and D. M. Anderson, for appellants. Walter C. Fawcett, and John F. Hughes, for respondent.

CORSON, J. On the 27th day of December, 1890, Daniel M. Smith, plaintiff and respondent, applied to the circuit court of the sixth circuit, sitting in vacation, for a peremptory writ of mandamus, to be directed to the defendants, commanding them to reconvene as a board of canvassers of Sully county, and to complete said board by calling to its assistance another county officer, as provided by law, and to proceed to count, canvass, and abstract all the votes cast in said county, including precinct No. 26. Notice of the application was duly served, with a copy of the affidavit on which the application was to be made annexed thereto. The affidavit is, in substance, as follows: That on the 4th day of November, 1890, a general election was held in the county of Sully, for the election of state and county officers and for members of congress; that at said election the respondent, Daniel M. Smith, and one Albert A. Faust were candidates for the office of sheriff of said Sully county; that there were in said county 28 precincts or polling places, from all of which returns were duly and regularly made prior to November 8, 1890,-one properly scaled up and forwarded to the county auditor of said county, and one deposited with the chairman of the board of county commissioners of said county, as provided by law; that upon said day the auditor of said county called to his assistance a majority of the board of county commissioners of said county who were not candidates for office at said election,-being the three persons named as defendants herein, -there being at that time five commissioners in said Sully county duly elected and qualified, and acting as such commissioners; that H. E. Kimmel was county auditor of said county, and was a candidate at said election for re-election to said office, and that he did not otherwise act in the canvass of the votes of said county than as clerk to said board of canvassers; that the defendants Lawrence, Maxwell, and Mateer immediately proceeded to canvass the vote of said county without calling to their assistance one of the officers of said

county who was not a candidate for election to any office at said election, and without calling to their assistance any other person; that said Lawrence, Maxwell, and Mateer, as such board of can. vassers, proceeded to count and canvass the votes as returned to said auditor for each of the election precincts of said county, with the exception of those returned from precinct No. 26 in said county, and that the result of said count and canvass was that said respondent, Daniel M. Smith, received 289 votes for the said office of sheriff, and said Albert A. Faust received for the same office 296 votes; that said canvassing board refused to count, consider, or canvass the votes returned from precinct No. 26; that the poll-book of said precinct No. 26 contained the names of every person voted for at said election, and that from said poll-book it appears that Daniel M. Smith, respondent, received 37 votes, and said Faust received 20 votes, as candidates for the office of sheriff of said county; that had said votes from precinct No. 26 been counted and canvassed by the said board, as by law required, the count and canvass should and would have shown that said Daniel M. Smith received as candidate for sheriff 326 votes, and said Faust 316 votes for the same office, thereby giving said Smith a majority of 10 votes over the said Faust, and, had said board been fully organized, entitled said Smith to a certificate of his election as sheriff of said county; that said Smith was fully qualified to act as sheriff of said county, and that, although the defendants have often been requested, they have utterly failed and refused, and still do refuse, to do their duty as such county canvassers in the premises, and have ordered the county auditor of said county to issue a certificate of election to said Faust, showing him to be elected sheriff of said county, and which certificate has been issued to him by said auditor.

The proceedings were originally commenced in the name of the state, on the relation of Daniel M. Smith, but, on motion of the defendants, the name of the state was stricken out, and the case has since proceeded in the name of the plaintiff, Daniel M. Smith, who is the real party in interest, and is, we think, the proper party plaintiff. When the proceeding is to redress a private wrong, as was evidently the object of this proceeding, the party beneficially interested should be named as the plaintiff. Linden v. Alameda Co., 45 Cal. 7; Damrell v. San Joaquin, 40 Cal. 158; Hagerty v. Arnold, 13 Kan. 367. Counsel for the defendants filed a motion to dismiss the application on certain grounds therein stated, which being denied, the defendants interposed a demurrer to the application, upon substantially the same grounds as stated in the motion; the sixth ground of said demurrer being "that the affidavit presented for said peremptory writ of mandamus does not state facts sufficient to justify the court in granting said writ." The demurrer was overruled, and from the order overruling the demurrer an appeal was taken to this court, and is now pending. But as the

sufficiency of the pleading is raised by the objection to the affidavit taken in this court, as well as by the demurrer, we will consider the sufficiency of the affidavit on this appeal from the judgment, reserving the question argued on appeal from the order, as to whether or not an appeal can be taken from an order overruling a demurrer to the affidavit in this class of cases, for future consideration.

Does the affidavit state facts sufficient to authorize a court to issue the writ? It is contended by counsel for appellants that the writ should not issue for the reason that the facts disclosed by the affidavit show that the board of canvassers was properly organized by the county auditor, performed its duties as such, and adjourned prior to the institution of this proceeding, and that as a part of the relief demanded by the plaintiff is that the three canvassers, defendants herein, shall call to their assistance another county officer, as provided in section 18, c. 84, Laws 1890, and which relief the court will not grant, therefore it will not grant any relief in the premises.

While we agree with the counsel in their contention that the board of canvassers was legally and properly constituted, we do not agree with them in their conclusion that the court is precluded from issuing the writ because it cannot grant plaintiff all the relief asked. But we are of the opinion that, though plaintiff may have demanded greater relief than he is entitled to by law, the court may grant him the relief to which he is entitled under the facts stated. State v. Crites, (Ohio,) 26 N. E. Rep. 1052; State v. Board, 36 Ohio St. 409; Ross v. Board, 42 Ohio St. 379. It appears from the affidavit that in Sully county there were five county commissioners duly elected and qualified, and that the auditor took to his assistance in canvassing the vote of said county, a majority of said board. It also appears that the auditor was himself a candidate for re-election. This renders necessary the construction of sections 1, 18. c. 84, Laws 1890. Section 1 of that chapter provides: "On or before the tenth day after the close of any election, or [as] soon thereafter as all the returns are re│ceived, the county clerk or auditor shall take to his assistance a majority of the county commissioners of the county, or the county treasurer, judge of the county court, and one county commissioner, none of which persons so called shall be candidates for office, unless there is not sufficient of said officers who are not such candidates, and shall proceed to open the returns from the various voting precincts in said county, and make abstracts of the votes in the following manner. And section 18 provides: "If the county auditor or county clerk, as the case may be, is a candidate for office, he shall take no part in the canvass, but shall act as a clerk of said board of canvassers for the county, and the two officers called to the assistance of the county clerk or auditor to make the county canvass shall call to their assistance one of the officers of said county, who is not a candidate, and, if there is none of said officers remaining who is not a candidate, then they shall