affirmatively made, on the part of the state, of the existence of malice in the heart of the perpetrator of the act, in order to put the accused upon his defense.

Ordinarily, when the act is committed deliberately, with a deadly weapon, and is likely to be attended with dangerous consequences, the malice requisite to murder will be presumed. But as a general rule it has been held in different states that the presumption which arises from a killing, unattended with such circumstances of violence, is that of murder in the second degree. And as under our law there are no grades or degrees in the crime of murder, the simple proof of a killing by the accused, unattended by any circumstances of malice, could raise no stronger presumption against him than that of manslaughter: 2 Wharton's Crim. Law, sec. 952.

But there are many circumstances from which malice may be inferred, other than the use of a deadly weapon; and Mr. Wharton instances "prior attempts to injure, though in other ways": 2 Wharton's Crim. Law, sec. 954.

The same author says: "Since malice cannot usually be directly proved, and the evidence of it, therefore, being circumstantial, any facts which go to afford an inference of its existence are admissible": 2 Wharton's Crim. Law, sec. 956.

The same author announces the rule to be, that "where the scienter or quo animo forms an essential or indispensable part of the inquiry, testimony may be offered of such acts, conduct, or declarations of the accused as tend to establish such knowledge or intent, . . . . notwithstanding they may in law constitute a distinct crime": Wharton on Homicide, secs. 701, 702.

....

Bishop puts the principle thus tersely: "The proof of criminal intent and of guilty knowledge, not generally admitting of other than circumstantial evidence, may often be aided by showing another crime attempted or perpetrated; and when it can be, it is permissible": 1 Bishop's Crim. Proc., sec. 1126.

In treating of what is admissible in proof of res gestæ, the same author says: "Therefore if two or more offenses are committed in one transaction, all the transaction- that is, all the offenses-may be given in evidence on the trial for one. And all the res gesta may be shown, though the transaction is a continuing one, or done in parts on different days": Bishop's Crim. Proc., sec. 1125.

Our predecessors recognized and enforced this precept of criminal law in State v. Patza, 3 La. Ann. 512, the rule being

stated thus: "The general rule is, as stated by counsel for the accused, that no evidence can be given of other felonies committed by the prisoner than that charged in the indictment. To this rule, however, there are exceptions, one of which is where it becomes material to show the intent with which the act charged was done. Evidence may be given of a distinct offense not laid in the indictment." See also State v. Thomas, 30 La. Ann. 600.

We have maintained the right of the state to offer such evidence as is here objected to in a recent and conspicuous case (State v. Vines, 34 La. Ann. 1081), in which we said: "Proof of a different crime from the one charged, though generally objectionable, is admissible when both offenses are closely linked or connected, especially in the res gestæ, and also when such proof is pertinent and necessary to show intent": State v. Mulholland, 16 La. Ann. 377; State v. Rohfrischt, 12 La. Ann. 382.

On this summary of authority we can safely rest our conclusion as to the correctness of the ruling complained of by the accused.

2. The defendant's counsel requested several special charges, which were refused by the trial judge, which we will consider separately.

(a.) That no evidence tending to establish the commission of other offenses not connected with the charge of murder, and not growing out of such charge, should be considered by the jury in forming their verdict in this case.

To this request the judge responds that it proceeds upon the hypothesis that there was evidence before the jury tending to establish the commission of other offenses not connected with the charge of murder; but he says: "There was no evidence before the jury respecting the commission of any offense by the accused which was not connected with the charge of murder, and which did not tend to show that the killing was done while the accused was engaged in the commission of an offense which was a felony."

On this statement of fact, the requested charge would have been misleading and superfluous if made, and the judge properly refused to give it to the jury.

(b.) That should the jury believe from the law and the evidence that the accused, being of sound mind, caused the death of the deceased in an unlawful manner, though not against the will of the latter; and should the jury also believe that the

result of the defendant's act showed negligence or gross imprudence, but no premeditation, no preconceived design to kill, and therefore no malice on his part, -it would be the duty of the jury to find for manslaughter, but not for murder.

The judge declined to give this special charge, on the ground that it was not a correct exposition of the law; insisting, on the contrary, that if the killing was shown to have been done while the accused was engaged in doing an act which was itself a felony, the absence of proof of premeditation or preconceived design to kill the deceased is insufficient to reduce the crime to manslaughter. He supports that view by reference to his written charge, in which similar ground is taken, viz.: “If the jury believe from the evidence, and are satisfied, that the deceased came to her death from any drug, or potion, or intoxicant furnished by the accused for the purpose of depriving her of consciousness or volition, to enable him thereby to have either sexual or unnatural intercourse, and not for the purpose of causing death, yet if in the perpetration of such unlawful design death ensue, such act is murder."

This requested charge is but a supplement to the objection urged to the admissibility of evidence, discussed in paragraph 1; for if it be permissible, on a trial for murder, to show the guilty knowledge and criminal intent by making proof of the commission of another crime attempted or perpetrated; if more than one offense may be proved to have been committed by the accused, when the two transactions constitute parts of the res gesta; if it be an exception to the general rule that where it becomes material to show the intent with which the act charged was done, evidence may be given of a distinct offense, not laid in the indictment, what becomes of the proposition that other proof of premeditation should be administered in order to make out a case of murder?

As we understand the proposition argued and determined, it is, that such proof is admissible for the purpose of showing premeditation and malicious intent; or that if offered and received, the proof of the commission of such contemporaneous crime, forming, as it does, a part of the res gestæ, would be accepted as sufficient proof of malice. Certainly, no argument can be required in support of the proposition that a homicide committed by an accused while he is actually engaged in the perpetration of a known felony, such as rape or sodomy, is murder.

(c.) That if the jury should believe from the law and the

evidence that the accused is guilty of felonious homicide, but that at the time of the commission of the offense he was suffering from such mental disease or such delusion that it overpowered his will and rendered him unable to distinguish between right and wrong as to the act actually committed, or made it impossible for him to elect between right or wrong, and that no reason or rational cause or motive for the perpetration of the deed is shown to have existed, and that, furthermore, the evidence adduced on the trial shows no ill-will, or malevolence, or evil intent on the part of the accused as against the deceased, the prisoner cannot be found guilty of murder.

The judge assigns as reason for refusing to so charge the jury that there was no proof offered with respect to the mental condition of the accused at the time of or previous to the perpetration of the crime charged. No evidence to that effect is found incorporated in the transcript. None is adverted in the defendant's bill of exceptions. How, then, was it possible for the jury to have believed "from the evidence" that the accused was suffering from mental disease or delusion sufficient to have overpowered his will and rendered him unable to distinguish between right and wrong at the time he did the fatal act? Of course they could not, as there was no such evidence adduced. On the contrary, the judge states that the coroner swore that the accused was sane before and after the homicide.

As the assumed insanity of the accused is the gravamen of the charge requested, and there was no such proof adduced, we need not prosecute this inquiry further; for it is an elementary precept of our criminal jurisprudence that a court cannot be required to charge the jury in matters of law upon a point which does not arise in the case, and which is not applicable to the facts in evidence: State v. Moultrie, 34 La. Ann. 489; State v. Thomas, 34 La. Ann. 1084; State v. Riculfi, 35 La. Ann. 770; State v. Garic, 35 La. Ann. 970; State v. Hamilton, 35 La. Ann. 1043; State v. Milton, 37 La. Ann. 77; State v. Ford, 37 La. Ann. 443; State v. Labuzan, 37 La. Ann. 489; State v. Simmons, 38 La. Ann. 41; State v. Primeaux, 39 La. Ann. 673.

(d.) That in circumstantial evidence every necessary link in the testimony, and every material and necessary fact upon which a conviction depends, must be proven beyond a reasonable doubt, and that if any of the facts or circumstances

established be inconsistent with the hypothesis of guilt, that hypothesis cannot be true.

To this request the judge inadvertently assigned no answer; but as counsel in his brief has made no mention of it, we will pass it by without discussion. We referred to it merely for the purpose of exhausting the grounds assigned in defendant's bill of exceptions.

3. The grounds of the application for a new trial are: 1. That the verdict of the jury is contrary to law and evidence; 2. The jury disregarded the evidence submitted to them, and rested their verdict, apparently, on the evidence given on a former trial; 3. That the jury were swayed by the specious theories of the coroner, who was, against defendant's protest, allowed to testify upon matters extraneous to, and not connected with, the charge in the indictment.

It is against elementary principles, and in the teeth of a special statute, to claim that we can consider, for the purposes. of the allowance vel non of a new trial, the evidence adduced before the jury on the issue of guilt or innocence of the accused. That question has passed beyond the domain of discussion in this court: State v. Seiley, 41 La. Ann. 143, and cases cited therein.

It has often been held by us that as this court has appellate jurisdiction on questions of law alone, it will not revise the refusal of the lower court to grant a motion for a new trial, based solely on an alleged deficiency of evidence to make out the case: State v. Hopkins, 33 La. Ann. 34; State v. Crowley, 33 La. Ann. 782; State v. Young, 34 La. Ann. 346; State v. Diskin, 35 La. Ann. 46; State v. Reilly, 37 La. Ann. 5; State v. Taylor, 37 La. Ann. 40; State v. Hahn, 38 La. Ann. 169; State v. Smith, 38 La. Ann. 301; State v. Backarow, 38 La. Ann. 316; State v. Bates, 38 La. Ann. 491; State v. Bird, 38 La. Ann. 497; State v. Broussard, 39 La. Ann. 671.

The discretion of the district judge cannot be disturbed on the showing made.

This completes the review of the numerous points made in this case, and our conclusion is, that the trial was regular in every particular, and no error is apparent from an inspection of the record.

The counsel who was appointed to represent the defendant has represented him with signal ability, and we are very much indebted to him for his exceptionally able and exhaustive