R, 334 ; Ewer v Ambrose, 3 b & C, 746 ; Fried- lander v London As S Co, 4 b & Aid, 195; Lawrence v bwlcer, 5 Wend, 305 ; Bradley v Ricardo, 8 Sing, 57 ; Jack- son v Leek, 12 Wend, 105 ; Stockton v Demuth, 7 Watts, 39 ; Srown v Bellows, 4 Pic&, 179 ; Rice v JV" 22%.

JtfaR In S Co, 4 Pic*, 439)3 The subsequent admission of the testimony of the wit- ness before the coroner in evidence, did not cure the error ex- cepted to; if she had been compelled to account upon the stand for the discrepancy between her testimony on the two occasions, it could not have failed to elicit the truth in regard to what took place between her and her husband at the very instant preceding the homicide, which produced the temporary frenzy under which he acted 4 Without such testimony, forming strictly a part of the very res gesta, the case is entirely without evidence showing any cause or motive for the acT 5 The witness had given affirmative declarations injurious to the prisoner, inconsistent with her previous declarations, which were favorable to hiM 6 The question was certainly proper, as tending to refresh the recollection of the witnes S v The court below erred in not allowing the question tt be put to Annisetto Lajeunechette as to his informing Sanchez of his wife's infidelity to hiM 1 The theory of the defence being that the act was com- mitted in an insane frenzy, which would, at least, reduce the offence from murder to manslaughter, the causes which pro- duced that frenzy, were, properly, matters of evidence in regard to his condition of mind, in the same manner as intoxi- cation, or any other condition of the man depriving him of the power of knowing what he does, may properly be inquired into in reference to the design with which the act was perpe- trated (The People v Eastwood, 4 Kern, 562 ; Swan v State, 4 Humph, 136)2 The fact that the prisoner killed the innocent and unof- fending father, with whom he had no quarrel, and against whom he bore no malice, affords additional support to the argu- ment, that the act was committed in an insane frenzy, caused by the sudden communication of his wife's infidelitY VI The court below erred in not allowing the question to be put to Tibulcio Aguillar as to his informing Sanchez of his wife's infidelity to hiM VII The court below erred in not allowing the question to be put to Tibulcio Aguillar, as to previous statements of facts, made by Annisetto Lajeunechette, differing from those made by him on the stand, by which the defence was taken by sur- prise VIII The court below erred in not allowing the question to be put to DR Ranney, as to his doubts in respect to the prisoner's mental capacity to form a premeditated design to take away life 1 This was a question involving the prisoner's state of mind at the time of the homicide, and was based as well upon a physiological examination made by the witness as to his men- tal temperament, as upon the facts of the case It bears directly upon the question, what effect a strong exciting cause would produce upon his mind, and upon the question, whether the homicide was murder or manslaughteR 2 The witness was an expert, who had made a careful exa- mination as to Sanchez's state of mind, and had heard part of the testimonY 3 It was decided in The People v Freeman (4th Denio), that if there be a doubt as to a prisoner's sanity, he is not in a fit state to be put upon his trial.

A fortiori then, doubts of experts as to the mental capacity of a prisoner to form a premeditated design at the time of the homicide, ought to go to the jurY 4 The course of examining experts, both as to the results of their own interviews with the prisoner, and upon the tes- timony evolved in the trial, in respect to the question of in- sanity, is sanctioned in the following cases : Lake v The Peo- ple, 1 Park Or R, 495 ; The People v Thurston, 2 Park Or 7?, 49 ; see also the Answer of the English Judges on this point, cited in 3 Oreenl on Ev, 5 5 The defence had introduced this course of examination, the prosecution making no objection, and it was not compe- tent for the prosecution to interrupt it, after once assenting to iT 1 The test of the sufficiency of an indictment is whether or not it describes the offence charged so as to constitute the crime, as defined by law, and to this end every particular or feature of the crime, as so defined, must be set forth with pre- cision, certainty and consistency, and the whole must fully describe the offence If this is done so as to present a com- plete description of the offence, as defined by law, or, in other words, so as to insure " the formality of the indictment," the indictment is good, and neither an omission, in a case of homi- cide, to allege any of the means by which the crime was accom- plished, as, for instance, the manner of holding the weapon, nor any deficiency in the description of the wound, nor a variance between the averments of the indictment and the proof to sustain it, unless by the variance the particular spe- cies of the crime proved, though it may nevertheless be of the same general character, differs from that described, or unless the accused is misled thereby, is fatal to a conviction (Com v Haines, 6 Penn Law J, 232) 1 Means of death If the variance doeo not show a differ- ence of operations in the means, it is immaterial.

Proof of a wound by a sword, or perhaps, in this State, by a pistol, will support an averment of one by a knife; and a blow by a stone, an averment of one by a stick ; but an averment of a wound by a stick or stone, will not permit proof of one by a knife or pistol.

So, also, proof of death by one kind of poi- son, will support an averment of a different kind of poison, though proof of death by starving will not support an aver- ment of poisoninG (R v Briggs, 1 Moody C C, 322 ; 2 Hale p C, 185 ; 1 EasT p C, 341 ; 3 Hawk p C, 330, 84, cap 25 ; Arch, 484, 485 ; WhaR Or L, 1059-62 ; 3 Chitty CR L, 734-736; 1 Stark.