THE PEOPLE, Respondent, v. MARK LAVELLE, Appellant, 71 Cal. 351

Myrick, J. The defendant was accused, by information, of the crime of an assault with an intent to commit murder. Testimony had been given concerning the circumstances of the alleged assatilt.

One Keeney, a deputy sheriff, who was present at the time of the arrest, which immediately followed the alleged assault, was asked the question: — “ What was the appearance of this man (the defendant) at that time with reference to his being rational or irrational?” This was objected to on the ground that it did not appear that the witness was competent to testify from appearances as to whether the man was rational or irrational. . It is urged on this appeal that the court erred in overruling the objection, because the witness had not shown himself to be competent within subdivision 10,

section 1870, Code of Civil Procedure. The evidence sought to be elicited was not the opinion of the witness as to the mental sanity’, of the defendant, based on an acquaintance with him, but was rather as to a fact, namely, his appearance at the time. The appearance of a person at a given time is one thing; the opinion of a witness as to the mental condition of that person, based on an acquaintance with him, is quite another. No error appearing, the judgment is affirmed. Sharpstein, J., McKee, J., Morrison, C. J., and Thornton, J., concurred,