At the trial, after the prosecution and defense had introduced their testimony, and while the prosecution was introducing testimony in rebuttal, counsel for the defendant asked leave to recall, for further cross-examination, L. D. Hauser, the prosecuting witness, for the purpose of laying a foundation for impeaching said witness, by showing that he had declared, soon after the shooting, that defendant did not fire the pistol to hit him, etc.

Counsel claimed that he only received information of the existence of the declaration on the morning of the day the offer was made.

The court denied the request, and the action is assigned as error.

The Penal Code, section 1093, provides that, after the prosecution and defense have respectively offered their testimony, "the parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case."

Section 1094 provides that in any case, for good reasons, the court may, in its sound discretion, depart from the order prescribed in the preceding section.

The matter being confided to the discretion of the court, an appellate court cannot review the action of the trial judge, except where it is apparent there has been an abuse of such discretion. (Wright v. Wilcox, 9 Com. B. 650; People v. Cook, 8 N. Y. 67; 59 Am. Dec. 451; Williams v. Sargeant, 46 N. Y. 482.) Our own decisions are full upon the point to like effect.

The reason

There is no abuse of discretion shown. given by the court was sufficient to authorize the refusal, and, if no reason had been given, this court could not reverse the ruling in such a case without an affirmative showing of an abuse of discretion. It follows that the error is not well assigned.

There was no error in the ruling of the court in permitting the prosecution to ask the defendant, who was a witness in his own behalf, on cross-examination, to

identify a revolver shown him, "and to tell the jury whether or not it was his revolver."

Upon his direct examination, he had stated that the reason he had a revolver on the day of the difficulty was that he had purchased it a few weeks earlier, and carried it nights when he went home with his money from his fruit-stand, and laid it on a shelf in the morning when he came back, but that morning (the day of the difficulty) had forgotten to leave it, etc.

Having thus testified as to a revolver, it was proper to ask him to identify it. (People v. Gallagher, 100 Cal. 466.)

Defendant's counsel asked a witness on cross-examination the following question in reference to the manner in which defendant walked up the street after the shooting: "He walked up the street very leisurely, did he not?" To which the witness answered: "No, sir; he walked as though he was a little anxious."

Defendant moved to strike out the answer as not responsive, which was refused, and an exception noted.

The first part of the answer was responsive to the question, and the remainder, if indefinite, might easily have been explained by a question as to the meaning of the terin used by the witness. The real point of the inquiry related to the condition of the defendant as to sobriety or drunkenness at the time, and it may well have been that the witness used the expression as indicating the presence of reasoning faculties. In any event, it was of little importance.

When counsel for the defendant objected to a question asked of a witness for the prosecution in rebuttal, as to the witness having passed the place of business of Cherry within the last year or two, the court stated. "I do not see any materiality in it anyway," and sustained the objection.

I agree with the court in saying that there was no materiality in the proposed testimony, and the court had an undoubted right to give the reason for its ruling. Had the question been confined to the time

when Cherry had testified to his passing his place, it might possibly have been relevant, though of little importance.

E. J. Lewis, a witness for defendant, had testified in chief that he had known the defendant for about three years, and knew his general reputation for peace and quietness in that community during that time, and that it was good.

Upon cross-examination the district attorney asked this question: "Don't you know, as a fact, that his wife procured a divorce from him on account of cruelty and inhuman treatment within the last two years?"

An objection was sustained to the question, and the jury instructed to give no heed to it.

The point is still made that the conduct of the district attorney was prejudicial to the rights of the defendant, tended to prejudice the jury against him, and that the judgment for that cause should be reversed.

The case of People v. Wells, 100 Cal. 459, probably goes as far in the direction pointed out by appellant as any well-considered case extant.

That was an aggravated case, in which the court evi dently believed the public prosecutor had wantonly and repeatedly transcended the limits of a fair investigation, with the object of prejudicing the rights of the defendant and poisoning the minds of the jurors, and this court reversed the judgment.

The case here is very different, no evidence of a desire or design to do injustice to the defendant is apparent. At most, all that can be said is that the district attorney asked an improper question, which was objected to, the objection sustained, and the jury instructed to disregard it. The fact that the question was improper seems to be tacitly conceded.

The rule is as follows: If evidence of good character is given in behalf of the prisoner, evidence of bad character may be given in reply; but in either case the evidence must be confined to the prisoner's general reputation, and the individual opinion of the witness as to

his disposition, founded on his own experience and observation, is inadmissible.

There is no doubt that when a witness is put upon the stand to attack or defend character, he can only be asked on the examination in chief as to the general character of the person whose character is the subject of the inquiry, and he will not be permitted to testify to particular facts either favorable or unfavorable to such person. To this extent it is believed there is no divergence of opinion among authors or jurists.

But there are many respectable authorities to the effect that when the witness who has thus testified is subject to cross-examination, he may then be asked, with a view to test the value of his testimony, as to particular facts; having testified as to the defendant's general good character, his opinion and the value of it may be tested by asking the witness, on cross-examination, whether he has ever heard that the person in question has been accused of doing acts wholly inconsistent with the character which he has attributed to him. (3 Rice on Evidence, 604, 605; State v. Merriman, 34 S. C. 16; Jackson v. State, 78 Ala. 471; Steele v. State, 83 Ala. 20; 1 Taylor on Evidence, sec. 352; Oliver v. Pate, 43 Ind. 132; State v. Arnold, 12 Iowa, 480; Leonard v. Allen, 11 Cush. 241; Carpenter v. Blake, 10 Hun, 358.)

In such cases it is not the truth of the particular facts, but circulating rumors of them, which form a part of the general repute, and go to make up one's good or bad character.

The doctrine is illustrated by the case of Reg. v. Wood, 5 Jur. 225, where a witness for a defendant charged with highway robbery, having testified to the good character of the prisoner, was asked on cross-examination whether he had not heard that the prisoner was suspected of having committed a robbery in the vicinity a few years before. It was objected that this was a particular fact raising a collateral issue.

Baron Parke overruled the objection, and remarked: "The question is not whether the prisoner was guilty

of that robbery, but whether he was suspected of having been implicated in it. A man's character is made up of a number of small circumstances, of which his being suspected of misconduct is one."

If, therefore, we concede the district attorney was wrong in putting the question, he was in such good company and backed by such an array of authority that no inference of intended oppression or injustice to the defendant can be presumed, and to suppose that the jury was unduly influenced thereby is to place a very low estimate upon their intelligence and capacity.

The court instructed the jury on its own motion, and at the request of counsel for the defendant gave nineteen out of twenty-three instructions presented by him. Those given presented the case in as favorable an aspect on behalf of defendant as the law would warrant.

Three of the four refused related to the intoxication of the defendant at the time of the commission of the alleged crime, and sought to establish the proposition that if defendant was in such a condition of mind from intoxication at the time of the alleged commission of the offense as to be incapable of forming an intent to commit the offense, or that he committed the act without being conscious thereof, or that the jury entertained a reasonable doubt as to his condition in those respects, they should acquit.

In lieu thereof the court instructed the jury in the language of section 22 of the Penal Code, and then instructed them that in the charge of an assault to commit murder, the specific intent to take life is a necessary element of the crime, and that in considering the ques tion whether the defendant is guilty or not of this offense they should take into consideration the question of his intoxication, etc., but that the charge also involved the charge of an assault with a deadly weapon, and that in this last charge no specific intent is necessary to constitute the crime, and hence as to that charge the question of intoxication was improper to be considered.