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in which the deceased was wounded should be particularly stated.” The language of the indictment is not quoted in the opinion in the Keech case. We have inspected it in the transcript of the record of the case among the files of the court. The indictment in that case, in the portion of it stating the wounding of the deceased, said that the defendant “with a certain pistol, loaded, etc., shot off and discharged, etc., did strike, penetrate, and wound the said Ellen Wells.” The indictment in the present case is much better. It alleges that the defendant "with a certain knife, etc., the said Wiley Bentley did strike and thrust, giving to the said Wiley Bentley then and there, with the knife aforesaid, in and upon the body of him, the said Wiley Bentley, one mortal wound," and gives the dimensions of the wound. We think the indictment is sufficient. True, there are some old English decisions, and some more modern American authorities, fol. lowing the course of the common law, which hold that the part of the body upon which the wound is inflicted should be described with great particularity: Vide 3 Chitty's Criminal Law, 735; 1 Archbold's Criminal Practice, 790, 791; Dias v. State, 7 Blackf. 20; 39 Am. Dec. 448. But this strictness has been considerably relaxed even in England: Rex v. Mosley, 1 Moody C. C.97; 2 Brit. C. C. Turner's case, 1 Lew. C. C. 177; 2 Bishop's Criminal Procedure, sec. 518, and authorities cited. Our statute provides: “Every indictment shall be deemed and adjudged good which charges the crime substantially 172 in the language of the statute, .... or, if at common law, so plainly that the nature of the offense charged may be easily understood by the jury”: Rev. Stats., sec. 2892. And further, “no indictment shall be quashed or new trial granted on account of any defect in the form of the indictment, or of misjoinder of offenses, or for any cause whatsoever, unless the court shall be of the opinion that the indictment is so vague, indistinct, and indefinite as to mislead the accused, or embarrass him in the preparation of his defense, or expose him after acquittal or conviction to substantial danger of a new prosecution for the same offense: Rev. Stats., sec. 2893. We do not think this indictment objectionable within the purview of the statute, whatever might be said of it under a strict common-law construction. It never was required that the proof should show with any strictness that the wound was upon the same part of the body that the indictment alleged it to be. Bishop's Criminal Procedure, section 526, in treating upon this point, says: “In principle, as this allegation is not required to be proven so that it gives the defendant no information of practical value, it need not be made”; and further, in the same section, says: “If it is to be observed at all, it is upon the mere ground of authority."

In our opinion the great weight of American and more re cent authority is that it is not necessary, in an indictment for homicide, to state upon what particular part of the body the mortal wound was inflicted: People v. Steventon, 9 Cal. 273; Moore v. State, 15 Tex. App. 1; Sanchez v. People, 22 N. Y. 147; Cordell v. State, 22 Ind. 1; Whelchell v. State, 23 Ind. 89; Jones v. State, 35 Ind. 122; Maxwell's Criminal Procedure, 182. We think it sufficient to allege that the mortal wound was inflicted upon the body of 178 the deceased. The word “body," as applied to the human frame, in ordinary language, has a well-defined and well-understood significa. tion. It means the trunk, as distinguished from the head and limbs, that part of a human being between the upper part of his thighs or hips and his neck, excluding his arms. The case of Sanchez v. People, 22 N. Y. 147, is a case very similar to the one at bar. In that case the court said: “The indictment charges the cominission of the murder in the following words: 'And that the said Felix Sanchez, with a certain sword, which he, the said Felix Sanchez, in his right hand then and there had and held, the said Harmon Curnon, in and upon the body of him, the said Harmon Curnon, then and there willfully and feloniously, and of his malice afore. thought, did stab, cut, and wound, giving unto the said Harmon Curnon then and there with the sword aforesaid, in and upon the body of him, the said Harmon Curnon, one mortal wound, of the breadth of one inch, and of the depth of three inches, of which said mortal wound he, the said Harmon Curnon, at the ward, city, and county aforesaid, then and there instantly died.' The indictment does not otherwise show upon what part of the body of Curnon the mortal wound was given; and the counsel for the plaintiff in error now contends that the omission is fatal. The indictment, in my opinion, is sufficiently certain in this respect. By the word, "body," in this connection, is to be understood the trunk of the man, in distinction from his head and limbs. This is the doctrine of the books on the subject: Long's case, Coke, pt. 5, 120. It is usual to state the particular part of the body upon which the violence produs. ing the death was inflicted; and in some of the old authori. ties it is said that the charge or statement of the crime in the indictment 114 should be so precise in this respect, that from buch statement you could lay your finger on the particular spot. But this strictness has given way to a more sensible and practical rule. The object of an indictment is to give to the party accused reasonable notice of the crime with which he is charged, in order that he may prepare his defense and be protected against a second trial for the same offense. Neither of these objects are attained or approached by requiring specifications which need not be proved; and it is well settled that an allegation that the wound was inflicted on one part of the body is sustained by evidence showing that it was on another and different part. For example, a charge that the wound was made on the right side of the body is sustained by evidence that it was on the left side: 1 Russell on Crimes, 5th Am. from 3d Lond. ed., 558–562, and authorities there cited; and the same rule applies in respect to the length and depth of the wound. But assuming the common-law rule to require the indictment to state the pare ticular part of the body where the mortal wound was inflicted, the consideration that the public prosecutor is not obliged to prove that it was in the part of the body as charged, and that such allegation is sustained by evidence that it was inflicted elsewhere on the body, proves that it is a matter of form, so far as relates to the place upon the body wbere the wound was inflicted."

For the errors herein pointed out the judgment of the court below is reversed and a new trial granted.

WITNESSES—HUSBAND AND WIFE.-That a husband or wife cannot tes. tify against each in criminal cases, seo the following line of cases: State v. Jolly, 2 Dev. & B. 110; 32 Am. Dec. 656, and pote; Byrd v. State, 57 Miss, 243; 34 Am. Rep. 440, and note; Compton v. State, 13 Tex. Ct. App. 271; 44 Am. Rep. 703. A wife is competent, however, to testify against her husband in a criminal action whenever she is the individual particularly and directly affected by the crime for which he is being prosecuted: Dill v. People, 19 Col. 469; 41 Am. St. Rep. 254, and note. See, also, the ex. tended note to State v. Boyd, 27 Am. Dec. 377.

HOMICIDE-EVIDENCE-RES: GESTÆ.-In a trial for morder where the evidence shows that the accused, after being knocked down by the doceased, armed himself, and, returning in from two to five minutes, shot and killed the deceased upon the renewal of the quarrel, the particulars of the whole transaction are admissible in evidence, as being parts of the res gestas, although strictly speaking all that occurred did not form one con. tinuous transaction: Stitt v. State, 91 Ala. 10; 4 Am. St. Rep. 853, and note. See, also, State v. Harris, 45 La. Ann. 842; 40 Am. St. Rep. 259, and note.

HOMICIDE-INDICTMENT-STATINO DIMENSIONS OF WOUND.-A description of the length or breadth of the wound is not necessary in an indict. Inent for murder: Dias v, Slate, 7 Blackf. 20; 39 Am. Dec. 448, and note; State v. McCoy, 8 Rob. 545; 41 Am. Dec. 301, aud note; People v. King, 27 Cal. 507; 87 Am. Dec. 95. Contra, see State v. Owen, 1 Murph. 452; 4 Am. Dec. 571, and note.

HOMICIDE-INDICTMENT.-An indictment for murder under the criminal code of California need not designate the part of the body upon which the mortal wound was inflicted: People v. King, 27 Cal. 507; 87 Am. Dec. 95, and note. The indictment should state a particular part of the body as the locality of the mortal injury, but it is not necessary that the proof should literally correspond: State V. Jenkins, 14 Rich. 215; 94 Am. Dea 132


(84 FLORIDA, 258.) CONTRACTS-TIME AS ESSENCE OF.-In equity time is not regarded as of

the essence of a contract unless expressly stated to be so. CONTRACTS—TIME, When Essence of.—If a party to a contract for the sale

of lands is guilty of laches and negligence in performing, and the time for performance has passed, the other party may, by giving notice, fix a reasonable time for the performance of the contract, and has a right to treat it as abandoned if performance is not completed in such rea.


TO PERFORM.-If a vendee in default under a contract for the sale of land receiving notice fixing a reasonable time in which to perform and complete the contract ignores the notice, and fails to ask any further extension of time or to assert any right, he must be considered as ac• quiescing in the demand contained in the notice, and as abandoning all

rights he may have had to enforce the performance of the contract. VENDOR AND PURCHASER-BREACH OF CONTRACT TO PURCHASE-NOTICE

To Perform. In order that notice to perform given to a vendee in default in the performance of a contract to purchase land shall have the effect to put a limitation upon the time for the performance of the contract the time fixed by the notice for such performance must be a rea. Bonable time within which to do the act required. What is such SPECIFIC PERFORMANCE-TIME WITHIN WHICH TO FILE BILL.-What la

reasonable time must depend upon the facts of each particular case. SPECIFIC PERFORMANCE_TIME AS ESSENCE OF Contracr.—While equity

does not regard time as of the essence of a contract for the sale of land unless expressly made so by the contract, yet it requires that one who seeks spe `ific perforinance of such contract shall not be guilty of unreasonable dr'ay, and shall seek his redress with reasonable prompte



matter of right in either party, but rests in the sound discretion of a coart of equity.

a reasonable time within which to file a bill for specifio performance of a contract for the sale of land cannot be fixed with precision by any general rule, but such delay as raises a presumption that the party has abandoned the contract is unreasonable, and is equivalent to consent


in possession under a contract to purchase land has made valuablo improvements upon the faith of his purchase, and the contract is such that specific performance cannot be enforced, the vendor may be compelled to refund the purchase money, and pay the actual value of the improvements; in order to entitle the vendee to recover for improvements, he must be free from fault, and specific performance must fail by reason of some defect in the contract or noncompliance with the


ALLOWED. --A vendee in possession under a contract for the purchase of land, suing for specific performance, who fails to maintain his right of action, not from any technical defect in the form of the contract, but on account of his own laches, negligence, and disregard of his obliga.

tions, is not entitled to recover for improvements erected by him. SPECIFIC PERFORMANCE-ADJUSTMENT OF EQUITIES. If specific perform

ance is denied because of some technical defect in a contract for the salo of land the court may retain the bill and adjudicate and adjust any other equities which have arisen between the parties W. H. Jewell, for the appellant. Massey & Wilcox, for the appellee.

260 LIDDON, C. J. The appellant, who was complainant below, brought his bill in equity against the appellees. The bill prayed for specific performance by the defendant, the Winter Park Company, of a contract for the sale of a lot in the town of Winter Park, and for cancellation of a deed made to the same lot by said defendant to George B. Dorn, its codefendant; and also prayed in the alternative that the defendant, the Winter Park Company, be compelled to refund to the complainant the difference between the fair value of the premises and the amount due to said company by the complainant. After demurrers to the bill of complaint were overruled the defendants answered the same.

The case was set down by the complainant for hearing upon bill and answer, and was so heard, and upon such hearing the court dismissed the bill. By this course all the material averments of the answer were admitted to be true.

The facts of the case, as gathered from the bill and answer, are substantially as follows: On the twelfth day of September, A. D. 1885, the Winter Park Company agreed to sell to the

AX. ST. REP., VOL. XLIII. - 13

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