the admission of proof to invalidate a patent, but whether the vein or lode, the subject of controversy, was included in the boundaries of the claim as located on 147 the surface and extending vertically downwards if known to exist when the patent issued. In Cooper v: Roberts, 18 How. 173, a defendant in possession of land without any title or valid right to acquire one, set up as one defense to a patent issued by the state of Michigan for the land, that the officers of the state violated a statute in granting the land after it was known, or might have been known, to contain minerals, and it was said by the court that, "without a nice inquiry into these statutes to ascertain whether they reserve such lands from sale, or into the disputed fact whether they were known, or might have been known, to contain minerals, we are of the opinion that the defendant is not in a condition to raise the question on this issue. The officers of the state of Michigan, embracing the chief magistrate of the state, and who have the charge and superintendence of this property, certify this sale to have been made pursuant to law, and have clothed the purchaser with the most solemn evidence of title. The defendant does not claim in privity with Michigan, but holds an adverse right, and is a trespasser upon the land, to which her title is attached." It was held in Doll v. Meador, 16 Cal. 295, that a patent not void upon its face cannot be questioned, either collaterally or directly, by persons who do not show themselves to be in privity with a common or paramount source of title. Foss v. Hinkel, 78 Cal. 158, holds that a settlement by one as pre-emptor on land in compliance with the laws of the United States with right to make the entry is in privity with the United States, and can question the validity of the issuance of a patent to a third party for the land. Vide also Southern Pac. R. R. Co. v. Purcell, 77 Cal. 69, where it was decided that a mere possession of public land does not give any right as against the government, or prevent 148 it from disposing of the land as it pleases. The defendant not being in a situation to call in question the patent issued to plaintiff's grantor the court did not err in excluding the evidence offered for such purpose.

This conclusion is also decisive of the questions presented here on the giving and refusing to give instructions to the jury. The plaintiff was entitled to recover the land sued for on the showing made, and the court did not err in refusing to give the charges asked by the defendant. There was no

testiraony before the jury to authorize the charges requested by the defendant and refused.

No objection was made to the introduction of the deed from Brush, the patentee, to the plaintiff, and it is not necessary to consider any questions arising under this conveyance.

There is only one other assignment of error which we deem it necessary to refer to in this opinion, and that is, the court erred in refusing to permit defendant to introduce the original record of a deed from the plaintiff to Walter B. Clarkson for the land in dispute. The purpose in offering this deed in evidence was to show that the plaintiff did not have title to the land at the time of trial. The original record book was objected to because the original deed was not accounted for, and the record offered was not a certified copy of the deed, so as to permit the introduction of a copy in lieu of the original deed. The court refused to permit the original record from the record book to be read in evidence. The constitution, article 16, section 21, provides that deeds and mortgages, which have been proved for record and recorded according to law, shall be taken as prima facie evidence in the courts of this state without requiring proof of execution, and 149 that the certified copy of the record of any deed or mortgage that has been or shall be duly recorded according to law shall be admitted as prima facie evidence thereof, and of its due execution with like effect as the original when duly proved, provided it be made to appear that the original is not within the custody or control of the party offering such copy. Under this provision a duly recorded deed would be prima facie evidence in the courts of this state without proof of execution, and a certified copy of such duly recorded deed would likewise be prima facie evidence, provided it is made to appear that the original is not within the custody or control of the party offering the copy. But it is entirely clear that the provision referred to does not authorize the introduction of the original record as evidence of the existence and execution of the original deed. The court did not err in refusing to allow the original record of the deed to be read in evidence on the objections made.

It is our opinion that the judgment appealed from in this case should be affirmed on the record before us, and it will be so ordered.

EJECTMENT-Equitable DefeNSES.-A defendant in an action of ejectment may, under the Missouri code, interpose by answer an equitable de

fense, and his equities may be tried and determined directly in that action: Clyburn v. McLaughlin, 106 Mo. 521; 27 Am. St. Rep. 369, and note.

PUBLIC LANDS-Presumption of VALIDITY OF PATENT. —A patent which appears on its face to have been legally executed is presumed to have been executed by the proper officers. The burden of showing that it was not is upon the party opposing it: Parkison v. Bracken, 1 Pinn. 174; 1 Burnett, 18; 39 Am. Dec. 296.

PUBLIC LANDS-PATENTS, WHEN INVALID.-A patent to public lands which had never been in their control, issued by government officers, is absolutely void: Cummings v. Powell, 116 Mo. 473, 38 Am. St. Rep. 610, and note. A patent to public land may be shown to be void, whether in a collateral proceeding or not, by proving that the land department had no jurisdiction to dispose of the land described in the patent: Edwards v. Rolley, 96 Cal. 408; 31 Am. St. Rep. 234, and note.

PUBLIC LANDS-PATENTS-COLLATERAL ATTACK.-If a patent is to be is. sued to public lands upon the ascertainment of certain facts by the proper officers of the land department having jurisdiction to inquire into those facts, then the issuance of a patent is a final declaration that such facts have been found in favor of the patentee, and is conclusive in a court of law, and cannot be collaterally attacked: Gale v. Best, 78 Cal. 235; 12 Am. St. Rep. 44, and note, with the cases collected. See, also, the extended notes to Boatner v. Ventress, 20 Am. Dec. 275; Stark v. Mather, 12 Am. Dec. 565; and White v. Jones, 2 Am. Dec. 568.

PATENTS AS EVIDENCE: See Chicago elc. Min. Co., 75 Cal. 194; 7 Am. St. Rep. 143, and note, and the note to Teschemacher v. Thompson, 79 Am. Dec. 162.

PUBLIC LANDS-PATENTS-WHO CAN QUESTION.-Settlement on public lands confers no rights as against the government or its grantees: Wells v. Pennington County, 2 S. Dak. 1; 39 Am. St. Rep. 758, and note. See, also, the note to Edwards v. Rolley, 31 Am. St. Rep. 236, and the extended note to Terry v. Megerle, 85 Am. Dec. 93.

DEEDS-RECORD COPY AS EVIDENCE.-The record of a deed of standing timber is prima facie evidence of the sale of the timber and of the execution of the instrument: Mee v. Benedict, 98 Mich. 260; 39 Am. St. Rep. 543, and note.

WALKER V. STATE.

[34 FLORIDA, 167.]

WITNESSES-HUSBAND AND WIFE.-A wife is competent to testify for or against her husband in a criminal case.

HOMICIDE-EVIDENCE-RES GESTE-An occurrence happening so short

time before a homicide as to be practically a part of the difficulty which ended with the killing is part of the res gesta and admissible in evicence as such.

HOMICIDE. INDICTMENT FOR MURDER need not state the dimensions of the incised wound which caused the death.

HOMICIDE.-INDICTMENT FOR MURDER need not state upon what particular part of the human body the mortal wound was inflicted.

HOMICIDE.-INDICTMENT FOR MURDER charging that a mortal wound was inflicted upon the "body" of the deceased is sufficient in law without stating upon what particular part of the body the wound was inflicted, and the word "body," as thus used, means the trunk of a human being as distinguished from the head and limbs; that part between the upper part of the thighs or hips, and the neck, excluding the arms.

E. M. Hopkins, for the appellants.

W. B. Lamar, attorney general, for the state.

168 LIDDON, C. J. The plaintiffs in error were indicted in the circuit court of Leon county for the murder of one Wiley Bentley. The form of the indictment was against Mack Walker as principal in the first degree, and Kenneth Walker as principal in the second degree. A trial was had at the spring term, 1894, and both defendants were convicted of manslaughter.

Five assignments of error are made. We consider them in numerical order. The first and second assignments, which we consider together, are as follows: 1. The court erred in refusing to allow Phyllis Walker, the wife of one of the defendants, Kenneth Walker, to testify in behalf of her husband; 2. The court erred in ruling in regard to Phyllis Walker, 169 "I exclude any thing concerning her husband." It appears from the record that this witness when offered was objected to by the state attorney on the ground that she was the wife of one of the defendants. The court said "she can testify in reference to the other defendants." No exception was taken to this ruling. If there was error in this ruling (if it can be called a ruling), it can only be made available by an exception duly taken; such exception not being taken, we cannot consider it: Coleman v. State, 17 Fla. 206.

The third assignment of error, while it does not clearly express what was intended, yet indirectly refers to the ruling of the court excluding testimony of Phyllis Walker, offered by the defendants. Inquiry was made of this witness about the presence of several of the Bentleys, including the deceased, at the house of Kenneth Walker (one of the defendants) on the morning of the killing, and a very short time preceding the same. Witnesses on the part of the state had been examined fully about the same circumstances. The witness, as stated, was the wife of the defendant Kenneth Walker. The state attorney objected to the testimony because one of the defendants, Mack Walker, was not present at the time of the occurrence about which she proposed to testify. The

court excluded the testimony. In so doing it clearly acted upon the presumption that a wife in a criminal case cannot testify for or against her husband. According to a recent decision of this court-Everett v. State, 33 Fla. 661-this was error, and she should have been permitted to testify. The Occurrence about which the witness was called upon to testify was also so short a time before the killing occurred as to be practically the beginning of the same difficulty. 170 Therefore it was part of the res gesta. It was error as to both of the defendants to exclude this testimony.

The fourth assignment of error is based upon the refusal of the court below to grant a new trial. The first two grounds were: 1. That the verdict was contrary to law; and 2. Contrary to the evidence; and 3. The refusal of the court to permit the wife of one of the defendants, Kenneth Walker, to testify in his behalf. No particular reason is assigned why the verdict was contrary to law. As the case must be remanded for a new trial in the circuit court it is not proper or necessary that we consider the sufficiency of the evidence to support the verdict rendered.

The fifth error assigned is, that the court erred in overruling defendants' motion in arrest of judgment. This mo tion was upon grounds as follows: 1. The indictment does not state in what part of the body of the deceased, Wiley Bentley, Sr., the mortal wound was inflicted; 2. The indictment does not state the dimensions of the wound which it is stated caused the death of Wiley Bentley, Sr. As it can be more easily disposed of we will consider the last ground first. This court has decided, overruling the case of Keech v. State, 15 Fla. 591, that in a murder case it is not necessary to state in the indictment the dimensions of the incised wound which caused the death: Hodge v. State, 26 Fla. 11. The indictment in this case clearly states the dimensions of the wound, of the breadth of one inch and depth of four inches. The motion in this respect is not true in point of fact.

We next consider the ground that the indictment does not show upon what part of the body of the deceased the mortal wound was inflicted. Judge Randall 171 says in the same case of Keech v. State, 15 Fla. 608, in an uncertain way: "It is also insisted that the indictment is defective, in that it does not show upon what part of the body of the deceased the wound was inflicted. We believe it is uniformly held in the English books that the part of the body