Opinion of the Court-Leonard, J.

mitted suicide; that defendant was insane and that he was drunk at the time. There was no proof tending to establish the fact of suicide; none to show insanity at the time, beyond that which is the immediate effect of excessive drinking. On the contrary, there was the testimony of many witnesses who saw the defendant for days prior to the homicide, establishing the fact that he was at all times conscious of his acts and knew good from evil. Under such circumstances we need not repeat what has been so often decided by this court, that upon this ground the judgment of the court below will not be reversed.

Third. Appellant claims that the court misinstructed the jury in a matter of law, in this: At the instance of defendant's attorney the court instructed the jury as follows: "In every crime or public offense there must be a union or joint operation of act and intention or criminal negligence. That intention is manifested by the circumstances connected with the perpetration of the offense and the sound mind and discretion of the person accused. A person shall be considered of sound mind who is neither an idiot nor a lunatic, or affected with insanity, and who hath arrived at the age of fourteen years, or before that age, if he knows the distinction between good and evil. Drunkenness shall not be an excuse for any crime, unless such drunkenness be occasioned by the fraud, contrivance or force of some other person or persons, for the purpose of causing the perpetration of an offense."

At the instance of the district attorney, the court gave the following instruction to the jury:

"It is a well-settled rule of law that drunkenness is no excuse for the commission of a crime. Insanity produced by intoxication does not destroy responsibility when the party, when sane and responsible, made himself voluntarily intoxicated; and drunkenness forms no defense whatever to the fact of guilt, for when a crime is committed by a party while in a fit of intoxication, the law will not allow him to avail himself of his own gross misconduct to shelter himself from the legal consequences of such crime. Evidence of drunkenness can only be considered by the jury for the pur

Opinion of the Court-Leonard, J.

pose of determining the degree of the crime, and for this. purpose it must be received with caution." Counsel for appellant urge that the last instruction conflicts with the former upon the question of insanity. We do not think so. The first treats of settled insanity, the last of temporary insanity produced immediately by intoxication.

An eminent writer upon criminal law thus states the established principles upon this subject:

"Settled insanity, produced by intoxication, affects the responsibility in the same way as insanity produced by any other cause. Temporary insanity, produced immediately by intoxication, does not destroy responsibility where the patient, when sane and responsible, made himself voluntarily intoxicated. While intoxication per se is no defense to the fact of guilt, yet, when the question of intent or premeditation is concerned, evidence of it is material for the purpose of determining the precise degree." (Wharton on Homicide, sec. 587 et seq.)

Another author says: "When a man voluntarily becomes drunk, there is the wrongful intent; and if, while too far gone to have any further intent, he does a wrongful act, the intent to drink coalesces with the act done while drunk, and for this combination of act and intent he is liable criminally. It is, therefore, a legal doctrine, applicable in ordinary cases, that voluntary intoxication furnishes no excuse for crime committed under its influence. It is so, even, when the intoxication is so extreme as to make the person unconscious of what he is doing or to create a temporary insanity." (Bishop's Crim. Law, sec. 400.)

In United States v. McGlue (Curtis' C. C., vol. 1, p. 13), the court say: "If a person suffering under delirium tremens is so far insane as I have described to be necessary to render him irresponsible, the law does not punish him for any crime he may commit. But if a person commits a crime under the immediate influence of liquor, and while intoxicated, the law does punish him, however mad he may have been." (Cornwall v. State, 4 Cooper's Ed. Tenn. 496.)

The testimony in this case shows that appellant, prior to January 2, 1877, drank very considerably, and sometimes

Points decided.

excessively, for several years; that a year or two before that time he had the delirium tremens. But there is no testimony tending to show that he was so afflicted at the time of, or within two years before the death of McRavy. All the testimony shows that he drank so much as to be under the influence of liquor for several days prior to January 2, and on that day he was so affected. The testimony further shows that prior to the homicide he was conscious of what he did, although under the influence of liquor. Under such circumstances, any instruction upon insanity, beyond that which is the immediate effect of intoxication, would have been improper, and would have been harmless had it been given, because there was no evidence to which it could have applied.

Temporary insanity produced by intoxication does not destroy responsibility if the party when sane and responsible made himself voluntarily intoxicated. We are satisfied the jury must have understood the instruction in that sense, and that under the testimony it made no difference if they did not.

This instruction was copied verbatim from one given in the case of People v. Lewis (36 Cal. 531), and also in People v. Williams (43 Cal. 345), and it was declared correct in each

case.

We think the instructions, taken together, fairly presented the law of the case.

Finding no error on the part of the court below, its order and judgment are affirmed, and the district court is directed carry its sentence into execution.

to

[No. 799.]

ABRAHAM BANTA, RESPONDENT, v. L. C. SAVAGE, APPELLANT.

FRAUDULENT REPRESENTATIONS-ADMISSIONS IN ANSWER.-In an action to recover damages for alleged false and fraudulent representations in the sale of land, the plaintiff, among other things, alleged that defendant represented that all the waters of Thomas creek "belonged to him, to use and appropriate as his own, upon the Geller ranch; that said representations were false, and were made to deceive plaintiff, and to induce him

Argument for Appellant.

to purchase said ranch. The defendant in his answer denied that he ever made any such representations, and, among other things, alleged that no water, water rights, or privileges of any kind were mentioned in his deed to plaintiff, "nor were they appurtenances of said ranch or land:" Held, that the plaintiff, under the pleadings, was not required to offer any proof that the waters of Thomas creek did not belong to, or were not appurtenant to the Geller ranch, and that the defendant was estopped by the averments and admissions in his answer from relying upon any such defense.

REPRESENTATIONS WHEN FRAUDULENT-—No representations, however false, amount to a fraud in law, unless it be of a fact, which fact is material to the contract or transaction.

IDEM-EXPRESSIONS OF OPINION OR FACT.-The mere expression of an opinion which does not involve the assertion of a fact, although the opinion be incorrect, will not make the person expressing it liable in an action for false and fraudulent representations.

IDEM-PROVINCE OF A JURY. It was the province of a jury, under the facts and circumstances of this case, to decide whether the representations as made by defendant were intended as the statement of a fact and whether they were so received and acted upon by defendant, or were mere expressions of opinion.

APPEAL from the District Court of the Second Judicial District, Washoe county.

The facts are sufficiently stated in the opinion.

R. M. Clarke, for Appellant:

I. The court erred in denying the second instruction asked by the defendant. What defendant expressed was a mere opinion for which he is not responsible in law. (2 Pars. on Cont., 275-76, notes j k; 1 Story on Cont., sec. 637; Long v. Woodman, 58 Maine, 52; Holbrook v. Conner, 60 Maine, 578; Cooper v. Lovering, 106 Mass. 77: Mooney v. Miller, 102 Mass. 217.

II. The court erred in denying defendant's fourth instruction. If the water of Thomas creek below the Bowker ranch, in fact belonged to the Geller ranch, and the plaintiff suffered the farmers above to divert it, and deprive him of its use, then he can have no action. It was not the defendant's duty to make the water flow to plaintiff's land or to protect his estate against trespassers.

III. The court erred in denying defendant's fifth and giving plaintiff's first instruction. The answer is not an admission that the waters of Thomas creek do not belong

Argument for Respondent.

to the Geller ranch; because Thomas creek is a natural watercourse, and as such is not "appurtenant" but "parcel" of the land. (Vansickle v. Haines, 7 Nev. 266; Angell on Watercourses, secs. 6, 8, 9, 92.)

Furthermore, the cause was tried upon the theory that it was a vital issue whether Thomas creek belonged to the ranch or not, and upon this issue proofs were admitted and arguments made. And the rule established after the case was closed, and when too late to amend, was a surprise and injury to the defendant which the court ought not to tolerate.

Ellis & King, for Respondent:

I. The declaration of the defendant to the plaintiff, that there was water enough or plenty of water to irrigate the ranch at any time, or to flood the ranch in two hours, was not the mere expression of an opinion. There is nothing

problematical or conditional in it. The existence of a fact was the subject of conversation and of inquiry; that fact was the most natural one to be ascertained. Upon the existence of a state of facts, as by the defendant asserted, a bargain was to be effected. That state of facts was not only asserted to exist at all times, but was then illustrated by defendant.

In all respects this declaration is unlike the giving of a mere opinion. It is not the language of "puffing." (1 Story on Contracts, sec. 637, note 2, and cases cited; as to whether this was merely the expression of opinion, 18 Vt. 176; 1 Story on Contracts, sec. 636, note 3, and cases cited; 1 Parsons on Contracts, 578.)

II. The court did not err in refusing the fourth instruction of the defendant which is assigned as error. The pleadings settle this question. It is asserted in the answer, that the waters of Thomas Creek do not belong to the Geller ranch, so, also, the complaint alleges. There is in the answer no denial of this allegation in the complaint. (15 Cal. 638; 12 Cal 403.) As to the admissions in the answer, and their effect against general denials therein contained: Fremont v. Seals, 18 Cal. 434.