#### State v. Perkins.

1 From Sun’y.

Where declarations were offered in evidence as having been made in the presence of a party and not contradicted by him, and it was also in evidence that the party to be affected by them was partially intoxicated, it was properly left to the jury to ascertain whether the party was too much intoxicated to hear and understand the state* ment when made.

This was an indictment for an assault upon one Sally Fowler, tried before Badger, Judge.

On the trial it appeared that the defendant Perkins, with one Davis and one Warden, who were charged in the same indictment, had gone to the house of - Sally Fowler, arrested and taken her to the house of one Har~ ris, a justice of the peace: wThen they arrived at the house of Hams, Sally Fowler made some statements-respecting the conduct of the defendant Perkins towardsdier at the time of the arrest. A question was made whether these declarations of hers were made in the hearing of Perkins and were admissible against him. The witness called on to state these declarations testified, that Perkins and Warden came in with Sally Fowler, and were in the same room with her; that Perkins was quite drunk, but not so much intoxicated as to be unable to bear or to understand; that Sally Fowler, in a voice loud enough to. be heard by every person in the room, related the violence used towards her by Perkins, after having called on the other defendant, Warden, to attend to her statement and contradict her if she told an untruth; and after she had concluded, she asked Warden if hex* statement was correct, and he answei’ed that it wras.

The .admission of this evidence was opposed by the defendant; but it was received by the Court, as a declaration made by Salhj Fowler in th'e presence oí.Perkins.,

*378The jury returned a verdict of guilty, new trial refused, judgment and appeal.

The Mtorney General for the state.

J. Martin for the defendant.

Tayiok, Chief Justice,

delivered the opinion of the Court.

The Court is of opinion that it was properly left to the jury to consider whether, from the circumstances of the case as disclosed in the evidence, the relation of Sally Fowler as to the violence done her at her own house, wás made in the presence of the defendant Perkins or not. That as there was evidence of his being corporally present, placing that circumstance as a fact beyond dispute; and some evidence of his being mentally present, in as Dutch as that, although inebriated, he was not disqualified to hear or understand; it was fit for the jury to decide whether the rational man was so far present as to assent by his silence to the narration of Sally Fowler. In the admission of the said evidence there was no error, and the judgment must he affirmed.