Appellant stands convicted of the murder of G. M. Hodges, in La Salle county, on the 4th day of May, 1885; the jury finding him guilty of murder of the first degree, and imposing-the penalty of death.
There being no question whatever of the fact that appellant killed: *466G-. M. Hodges, he relied upon two grounds of defense to the charge: 1st. That the homicide was not committed in La Salle, but in Encinal county. 2d. Insanity.
In regard to the venue, the first error assigned is the overruling of defendant’s application for a continuance. This application was made because of the absence of witnesses by whom defendant expected to prove that the homicide was not committed in La Salle county. We are of the opinion that there was no error in overruling the application, 1st, because the venue was very clearly, and, as we think, conclusively shown by the testimony on the trial. 2d. If the witnesses were to show that Encinal Station, -the place of the homicide, was in Encinal county, the fact would not probably be true, judging by the evidence adduced on the trial, bearing upon this issue. 3d. Appellant, in his motion for continuance, states that he will prove by the absent witnesses that Encinal Station is in Encinal county. This may be true, and still La Salle county may have jurisdiction of the offense; for, if within four hundred yards of the La Salle line, this county would have jurisdiction.
Second ground of defense: “Insanity.” All of the witnesses for appellant whose testimony was desired in support of this defense were present, except one, to wit, David Leavalle. A large number of witnesses were examined on each side upon this question of insanity. By the witness Leavalle it is stated that defendant would prove “ that he was of weak mind and subject to fits of such mental derangement and aberration of mind as to -incapacitate him from distinguishing right from wrong.” How in this there is no fact,— no act of defendant,—nothing whatever but the opinion of the witness stated. And while it is true that a witness may give his opinion upon this subject, still, without some fact as a basis, his opinion should have very slight weight. Testing, therefore, this application by the facts proven on the trial, the evidence of Leavalle, if adduced upon the trial, would have, if any, very little effect upon the jury in determining the issue of insanity.
Under the decisions of this court the burden is on the defendant to prove insanity. This was not done in this case, but the State assumed the burden and proved that, at the time of the killing, defendant was, as we think, clearly sane, and -of sound memory and discretion.
As bearing upon the question of venue the district attorney, over the objection of the defendant, introduced in evidence the certificate of W. 0. Walsh, commissioner of the general land office, to the effect that the Hills survey of the southern boundary line of La *467Salle county was recognized by said office as the true line between La Salle and Encinal counties. To this certificate as evidence the defendant objected because said certificate did not contain the field notes of said survey, nor was said survey correct. If, indeed, the certificate by failing to give the field notes proves nothing, defendant, though the evidence was not competent, was certainly not hurt by its introduction. Whether the Mills survey was correct was a question of fact for the jury. It was recognized as such by the general land office. We hold that the objection urged by appellant to the introduction of the certificate was not well taken.
Appellant complains of the charge of the court in reference to the question of venue. Mow, there was no exception taken to the charge on the trial of the cause, but it is brought forward first in the motion for a new trial. This being the case, we must look to the whole record and determine whether the charge complained of was such as was calculated to injure the rights of the defendant. Viewing the charge, therefore, in the light of all the facts bearing upon this question of venue, we are perfectly satisfied that, if there was error in the same, defendant was not in the slightest injured thereby.
It is not insisted or pretended by counsel for appellant that the evidence does not support a conviction for murder of the first degree. This is well; because of this there can be no doubt. The homicide was a cool, deliberate, unprovoked and cruel assassination.
We have found no such error in this record as will warrant a reversal of the judgment, and the judgment is affirmed.
Affirmed.
[Opinion delivered June 13, 1885.]