(SnrnpU ICam Bcl^aai ICtbrarg Cornell university Library KF9210.A5S581896 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020147025 THE FEDERAL AND STATE CRIMINAL REPORTER REPORTS OF CRIMINAL CASES DECIDED IN THE FEDERAL COURTS AND COURTS OF LAST RESORT OF ALL THE STATES AND TERRI- TORIES OF THE UNITED STATES. 'WXTtl ISIOTE^S A.rS[lZ> I«E>I^B>rilE>l>?CB>S. BY WILLIAM H. SILVERNAIL. ^Vol. I. 1896. W. C. LITTLE & CO., LAW PUBLISHERS, ALBANY. N. Y. /blo^'^ Entered according to act of Congress in the year elgliteen hundred and ninety-six By W. C. little & CO., In the office of the Librarian of Congress, at Washington. RIQGS PRINTING & PUBLISHINO CO., PBINTING, ELECTROTYPING AND BINDING, 87&29 COI.CMBIA ST., 2S, 54, 26, 2S MONTQOMEHr, "BEVEBWYCK PRESS," ALBANY, N. Y. TABLE OF CASES EEEORTED IN THIS VOLUME. A. PAGE AllpUn V. State (Texas) 145 Argabriglit v. State (Neb.) 481 B. Bach V. State (Ark.) 124 Bertrand v. State (Miss.) 349 Blackshear v. State (Texas) 144 Brazos v. State (Texas) 558 Brown v. State (Ala.) 439 Burdge v. State (Ala.) 4^ C. Carver v. United States (U. S.). .. 463 City of Burlington v. Stockwell (Kan.) 14 Clark V. State (Texas) 148 ■Cole V. Commonwealth (Ky.) . . . 126 |Commonwealthv. Bishop (Mass.). 411 CommonweaMi v. Cody (Mass.). . 423 Commonwealth V. Crowe (Mass.). 430 ICommonwealth v.Bmerson(Mass.) 410 Commonwealth V. Enos (Mass.).. 318 Commonwealth v. Flynn (Mass.). 418 Commonwealth v. Meskill (Mass.) 416, 417 Commonwealth v. Murphy (Mass.) 313 Commonwealth v. Surles (Mass.). 212 Commonwealth V. Walsh (Mass.).. 309 Cooley r. State (Neb.) 520 Costeilo V. State (Ala.) 454 Curby v. Teritory of Arizona (Ari.) 331 D. Douglass V. State (Tex.) 161 Duff V. Commonwealth (Va.) 538 E. Emery v. State (Wis.) 468 F. Farmer v. State (Tex.) 171 Favors v. State (Tex.) 167 G. Graham v. State (Tex.) 543 H. _. PAOR Hannaman v. State (Tex.)^ri.■^.. 646 Haskins v. State (Neb.) 482 Henderson v. State (Tex.) 541 Howard v. State (Ala.) 447 Howard v. State (Tex.) 152 Hutto V. State (Tex.) 146 J. Jacksott-v. State (Ala.) 659 !^]^|o4V. State (Tex.) 168, 170 Jones V. State (Ohio.) 530 ■---'•• K, .._ ... Kinnard v. State (Tex.) 176 Kohl V. Lehlbeck (U. S.) 62 Korth V. State (Neb.) 509 ■-^' L. , Lawhead v. State (Neb.) 494 Little V. People (111.) ns M. t Magruder v. State (Tex.) 173 Markham v. United States (U. S.). 71 Maynard v. Eaton (Mich.) 485 McCulloch v. State (Tex.) 164 Miller v. State (Tex.) 157 Moore v. United States (U. S.). . . 38 Moreartyv. State (Neb.) 503 Morris v. State (Tex.) 548 Murphy v. State (Ala.) 251 N. Naanes v. State (Ind.) 433 Nichols V. State (Neb.) 487 -P. Papalexandrakis v. State (Ala.). . . 454 Pearson v. State (Tex.) 149 People V. Bennett (Mich.) 28 People V. Cox (Mich.) 32 People V. Gay (Mich.) 36 People V. Glassman (Utah) 339 People V. McClure (N. Y.) 316 People V; O'Neill (Urich.) 836 People V. Shaver (Mich.) 316 IV Table of Cases Eeported. PAGE People V. Smith (Mich.). . ^ 341 People V. VaQ Dam (Mich.) 24 People V. Ward (Cal.) 19 People V. Wiman (N. Y.) 243 Pluinmer v. State (.Tex.) 159 R. Rath V. State (Tex.) 162 Rauschkolb v. State (Neb.) 491 Rial V. State (Tex.) 154 Robinsoa v. JDickerson (Ala.) 551 Robinson v. People (111.) 99 Rogers v. State (Tenn.) 534 S. , Sanders V. State (Miss.) 215 Sapp V. Commwealth (Ky.) 127 Saylor V. Commonwealth (Ky.).. 130 State V. Addison (Iowa) 403 State V. AUrick (Minn.). . . 344 State V. Benton (IST. C.) 362 State V. Blankinship (N. C.) 375 State V. Brittian (N. 0.) 865 State V. Cadotte (Mont.) 7 Sfatev. Case (Ln.) 183 State V. Caywood (la.) 276 State V. Chippy (Dela.) 345 State V. Cox (la.) 379 State V. Davis (Dela.) 348 State V. Delong (la.) 303 State V. Douglass ( W. Va.) 523 State V. Eifert (la.) 403 State ex rel. Idleman v. Bannon (Ore.) 23 State V. Feurerbaken (la.) 891 State V. Gadberry (N. C.) 81 State y. Gastoa (la.). 807 PAOB State V. Hamil (la.) 301 State V. Henry (La.) 179 State V. Isaacson (S. D.) 311 State V. Jolly (Miss.) 24ft State V. Kowolski (la.) 396 State V.Lewis (la.) 380 State V. Long (N. C). 360 State V. Lytle (N. 0.) 78 State V. Meier (la.) , 1 State V. Norton (Dela.) 347 State V. Pilgrim (Mont.) 4 State V. Sibley (Mo.) 133 Slate V. Smith (Dela.) ,... 354 State V. Strobehu (la.) 378 State V. Smith (N. C.) 369 State V. Thompson (La.) 200 State V. Thompson (Ore.) 239 State V. Vickers (La.) 184 State V. Weems (la.) 283 State V. Whitt (N. 0.) 371 State V. Williams (La.) 203 State V. Zimmerman (Kan.) 15 Stathakis v. State (Ala.) 454 T. Taylor v. State (Tex.) 543 U. United States v. Beach (Colo.). ... 466 W. Wendell v. State (Neb.) 477 Westv. State (Tex.) 156 Whiten v. Tomlinson (U. S.) 46 Wilburn v. State (Miss.) 207 Willisins T. State CNe}).} 499 TABLE OF OASES CITED IK THE OPINIONS IN THIS VOLTTMB. A, PAGE Abernatliy v. State, 78 Ala. 411.. 557 Ableman v. Booth, 31 How. 506. . 67 Adams v. Stale, 55 Ala. 143 451 Aiken v. State, 41 Neb. 363; 59 N. W. 888 ; 496 Albertson v. Krieclibaum, 65 Iowa, 18'; 21 N. W. 178 3 Allen V. People, 83 III. 610 436 Anderson v. State, 33 S. W. 371.. 541 Anderson v. State, 41 Wis. 430. . . 474 Anon., 1 Pick. 41 69 Anthony v. Travis, 148 Mass. 53; 19N. E. 8 437 Arp V. State, 97 Ala. 5; 13 South. 301 357 Austin V. People, 51 111. 336 103 B. Bailey v. Bailer, 63 N. "W. 341... 407 Bailey V. Pub. 'Co., 40 Mich. 351. 336 Bain v. State, 74 Ala. 38 453 Baizey v. State, 30 S. W. 358 144 Baker's Case, 33 W. Va. 330; 10 S. E. 639 534 Bakewell's Case, Buss. & R. 35... 44 Bank v. Gaudy, 11 Neb. 431; 9 N. W. 566 490 Bank v. Griffith, 14 Pet. 50 53 Bank V. Millard, 10 Wall. 153. ... 490 Bank v. Stryker, 3 Wheeler, Cr. Cas. 383 141 Banley v. People, 156 111. 234; 40 N. E.831 103 Barton v. State, 29 Ark. 68 44 Belknap v. Ball, 83 Jlich. 583; 47 N. W. 674 235 Bera;emann v. Backer, 157 U. S. 655; 15 S. C. 737 57, 65 Berry v. State, 30 Tex. App. 433; 17 S. W. 1080 178 Bishopp V. Lane, 94 Mich. 461 .. . 486 Board v. Hammond. 83 Ind. 453. 436 iBoard V. May, 67 Ind. 563 436 Bow V, State, 81 S. W. 170 146 PAGE Boyd V. State, 19 Neb. 1S8; 26 N. W.935 531 Brahm v. Adkins, 77 111. 268 490 Brooks V. Jones, 11 Ired. 260 361 Brubaker v. Taylor, 76 Pa. St. 88. 186 Bullard v. Pearsall, 53 N. Y. 330. 186 Burger v. State, 34 Neb. 397 484 Hurley v. March, 11 Neb. 391; 9 N. W. 48 503 Burton v. State, 18 South. 284. ... 446 Bybee v. State, 94 Ind. 443; 48 Am. Rep. 175 463 C. Caldwell v. Texas, 137 U. S. 693; 11 S. 0.234 65 Callanan v. Gllman, 1 Am. St. Rep. 840 458 Callanan v. Oilman, 107 N. Y. 360; 14 N. E. 364 463 Cancemi v. People, 18 N. Y. 138. 70 Carper v. Fitzgerald, 131 U. S. 87; 7S. C. 825 59 Carruth v. Harris, 41 Neb. 789; 60 N. W.lOa ,.... 503 Case of a Juryman, 12 East, 231 .. 70 Champ V. Com., 2 Mete. 24 . . 132 Chase v. People, 40 111. 352 70 Chidester v. State, 25 Ohio St. 439. 430 City Council v. Wright, 73 Ala. 411 463 City of Alleghany V. Zimmerman, 95 Pa. St. 387; 40 Am. Rep. 649. 463 City of Burlington v. James, 17 Kan. 331 15 City of Keokuk v. Dressell, Iowa, 597 3 Claassen V.' u'. S.", 142 U.S." iVo'; 13 S. 0. 169 41 Clark V. Cleveland, 6 Hill, 349. . . 553 Clarke' V. State, 78 Ala. 4"74 257 Clem V. State, 43 Ind. 420 280 Case of Chelsea Waterworks Co., lOBxch. 731 70 VI Table of Cases Cited. FAaE Coflfey V. U. S., 116 U. S. 437; 6 Sup.Ct. 437 280 Cohen v. Mayor, 113 N. Y. 532; 21 N. E. 700; 10 Am. St. Rep. 506. 463 Cohens v. Vu-ginia, 6 Wheat. 264. 53 Collins V. Stale, 14 Ala. 608 443 Comer v. State, 26 Tex. App. 509; 10 S. W. 106 145 Com. V. Atkins, 136 Mass. 160. . . 417 Com. V. Barry, 115 Mass. 146. .. . 210 Com. V. Bennett, 118 Mass. 443.. 45 Com. V. Berry, 5 Gray, 93 425 Com. V. Bingliain, 158 Mass. 169; 33N. E.341 414 Com. V. Blaisdell, 107 Mass. 235.. 463 Com. V. Bowden, 9 Mass. 494 425 Com. V. Brewer, 43 N. E. 93 416 Com. V. Briant, UZ Mass. 463; 8 N. E. 338 413 Com. V. Butterick, 100 Mass. 1. . . 45 Com. V. Carroll, 124 Mass. 30. .310, 311 Com. V. Chase, 147 Mass. 597; 18 N. E.565 433 Com. V. Clap, 4 Mass. 163 334 Com. V. Chine, 163 Mass. 306; 38 N. B. 435 413 Com. V. Coe, 115 Mass. 481 415 Com. V. Connelly, 163 Mass. 589; 40N. E. 863 216 Com. V. Costello, 121 ila-ss. 371.. 428 Com. V. Drew, 3 Cush. 279 435 Com. V. Emmons, 98 Mass. 6 216 Com. V. Farren, 9 Allen, 489 216 Com. V. Follansbee, 155 Mass. 274; 39 N. E. 471 213 Com, V. Foran, 110 Mass. 180 419 Com. V. Goodwin, 14 Gray, 55. . . 433 Com. V. Graves, 155 Mass. 163; 39 N.B. 579 427 Com. V. Harvey, 111 Mass. 420. .. 417 Com. V. Hayclen, 103 Mass. 457; 40 N. E. 840 216 Com. V. Hill, 145 Mass. 305; 14 N. E. 134 211 Com. V. Hitchings, 5 Gray, 483. . 215 Com. V. Holmes, 157 Mass. 233; 32N. E. 6 423 Com. V. Hus,sey, 111 Mass, 432.. 43, 342 Com. V. Jacobs, 25 N. E. 463. . . 517 Com. V. Kennedy. 119 Mass. 311. 210 Com. V. Martin, 17 Mass. 359 436 Com. V. McCabe, 163 Mass, 98; 39 N. E, 777 423 Com. V. McCarthy, 163 Mass. 458; 40 N. E. 766 438 Com. V. McCluskey, 133 Mass. 401 413 Com. V. McCormick, 130 Mass. 61. 435 Com. V. McCue, 131 Mass. 358. . . 417 faqb: Com. V. Miller, 189 Penn. St. 77; 21 Atl. 138 474 Com. V. Mowry, 11 Allen, 20. . . . 426 Com. V. Murphy, 11 Cush. 473.. . 425 Com. V. Murphy, 14 Mass. 387. . . MS Com. V. Nicho.s, 114 Mass. 385.. 445 Com. V. Piper, 120 Mass. 185 ... 433 Com. V. Pollard, 13 Mete. 325. ... 77 Com. V. Preece, 140 Mass. 376; 5 N. E. 494 416 Com. V. Presby, 14 Gray, 65 216 Com. V. Purchase, 3 Pick. 531 .. . 435 Com. V. Quinn, 150 Mass. 401; 23 JSr. E. 54 423 Com. V. Raymond, 97 Mass. 567.. 216 Com. V. Roberts, 108 Mass. 296 . . 416 Com. V. Robertson, 163 Mass. 90; 38N. E. 35 426 Com. V. Robinson, 136 Mass. 259. 35 Com. V. Robinson, 146 Mass. 571; 16N. B. 453 416 Com. V. Roby, 13 Pick. 496 435 Com. V. Roosnell, 143 Mass. 32; 8 N. E. 747 314 Com. V. Savery, 145 Mass. 313; 13 N. E. 611 216 Com. v. Savory, 10 Cush. 535. . . . 305 Com. v. Sawtelle, 11 Cush. 142.. 44 Com. V. Sholes, 13 Allen, 054. .. . 425 Com. V. Simpson, 9 Mete. 138 44 Com. V. Smart, 6 Gray, 15 42 Com. V. Smith, 2 S. & R. 300 83 Com. V. Smith, 3 Wheeler Cr. Cas. 79 94 Com. V. Smyth, 11 Cush. 473 305 Com. V. Slurtivant, 117 Mass. 133. 4l9 Com. V. Taylor, 132 Mass. 261... . 213 Com. V. Tay, 146 Mass. 146, 15 N. E. 503 417 Com, V. Thompson, 159 Mass. 56; 33 N. E. 1111 437 Com. V. Walker, 163 Mass. 336 ; 39 N. E. 1014 437 Com. V. Walton, 11 Allen, 338. . . 417 Com. V. Webster, 5 Cush. 320 133 Com. V. Welch, 140 Mass. 372; 5 N. E, 160 417 Com. V. Welch, 163 Mass. 373; 40 N. E. 103 423 Com. V. Wentworth, 4 Clark, 334. 403 Com. V. Wentworth, 118 Mass. 441 216 Com. V. Wilkinson, 16 Pick. 175 26 Am. Dec. 654 463 Com. V. Wilson, 153 Mass. 13; 25 N.E. 16 413 Com. V. Wood, 97 Mass. 235.310, 311 Company of Carpenters, etc. v. Hay ward, 1 Doug. 875. 453 Table of Cases Cited. vu PAGE Conrad v. Griffey, 16 How. 88... . 186 Cook V. Hart, 146 U. S. 183; 13 8.O.40 57, 60 Oostello V. Crowell, 133 Mass. 352 437 Costelo V. Crowell, 139 Mass. 588; 2N. E. 698 415 Cotbran v. State, 39 Miss. 541 ... 282 Coulter V. Express Co., 56 N. Y. 585 185, 187 Crane v. Watters, 10 Fed. 619... . 335 Crawlln's Case, 92 Ala. 101; 9 South. 3.S4 553 Crepps V. Durden, Cowp. 640 35 Cuddy's Case, 131 U. S. 280; 9 8. C. 703 57, 65 Cummlngs T. R. R. Co., 36 Iowa, 173 378 D. <^ Davis V. Duval, 113 N. C. 833. . . . 377 Davis V. People, 19 111. 74 120 Delano v. Chanties, 138 Mass. 63 415 Dixon V. State, 26 S. W. 500 506 Dobson V. State, 4U Neb. 250 ... . 485 Donovan's Appeal, 41 Conn. 550 . 343 Douglass V. catterlee, 11 Johns. 16 338 Doyle V, Ins. Co., 94 U. S, 535 . 38 Doyle V. Russell, 30 Baib. 300 .. . 554 Drennanv. People, 10 Mich. 169. 318 Duffy V. People, 26 N. Y. 588... . 245 Dunbar v. U. S., 150 U.S. 185; 15 S. C. 335 78 Duubier v. Day, 13 Neb. 596; 13 N. W. 109 501 Dunn V. People, 109 111. 635 133 Dunn V. State, 70 Ind. 47 432 E. "?Ks- Earl V. People, 73 111. 339 123 Entries v. State, 47 N. J. Law 140. 66 Exon V. State, 33 Tex. Cr. 461; 26 8. W. 1088 154 Ex parte Belt, 159 U. S. 95; 15 S. 0. 987 58 Ex parte Bigelow, 113 U. S. 338; 5S. C. 543 58 Ex parte Cook, 35 Cal. 107 556 Ex parte Dorr, 3 How. 103. ..... 54 Ex parte Fonda, 117 U. S. 516; 6 8. C. 848 57 Ex parte Reggel, 114 U. S. 642; 5 S. C. 1148 60 Ex parte Rhear, 77 Ala. 93, . . . 557 Ex- parte Koyall, 117 U. 8. 241; 3 8. C. 834 55, 56, 57 Ex parte Wright 65 Ind. SOS 523 Eairman v. Ives, 5 Barn.& Ald.642 235 P. PAGIL Fensternmaker v. Pub. Co., 43 Pac 338 Fields V. State, 24 S. W. 407. .. . 147 Ford V. State, 46 Neb. 390; 64 W. W. 1083 497 Frame v. Badger, 79 111. 441 501 Prisbie v. U. §., 157 U. S. 163; 15 S. C. 586 204 G. Gandy v. State, 13 Neb. 445; 14 N. W. 143 531 Gandy v. State, 34 Neb. 733; 40 N. W. 302 494 Gardner v. People, 3 Scam. 83. . . 305 Goldsmith v. State, 16 South. 933. 856 Goodwin v. State, 96 Ind. 550 437 Gordon v. Caldcleugh, 3 Cranch 368 , 53 Gordon v. State, 7 Atl. 476; 48 N. J, Law 611 283 Graham v. Badger, 164 Mass. 42; 41 N. E. 61 413 Graham v. People, 63 Barb. 468. . 330 Graves v. Shattuck, 35 N. H. 357; 69 Am. Dec. 536 463 Graves v. State, 45 N. J. Law 203, 358 65 Greathouse v. Kipp, 3 Scam. 371. 120 Greenup v. Stoker, 3 Gil. 202 70 Guykowskl v. People, 1 Scam. 476 70 H. :■.--.. Hall V. State, 53 Ala. 463 443 Hamilton v. People, 39 Mich. 195 28, 133, 194 Hansen v. Kirtly, 11 la. 565 490 Harrington v. Inhabitants of Lin- coln, 4 Gray, 563 173 Harris v. People, 44 Mich. 305; 6 N. W.677 317 Harris v. People, 64 N. Y. 148. . . 341 Hart v. Mayor, 9 Wend. 571 463 Hawes v. State, 46 Neb. 149; 64 N. W. 699 531 Hawkins v. Sanders, 45 Mich. 491. 460 Hedges v. Comrs., 4 Mont. 280 ; 1 Pac. 748 7 Heldt v. State, 20 Mont. 493; 30 Pan. 626 497 Hendricks v. State, 9 S. W. 555. . 506 Hill V. Yates, 13 East, 339 70 Hoagland v. Van Etten, Doc. X. No. 375 531 Hoffman v. State, 13 Tex. App. 406 147 Hollingsworth v. Duane,Wall. Sr. 147; 4Dall. 353 '....69, 70 vm Table of Cases Cited. PAGE Holt V. Parsons, 23 Tex. 9 333 Hoole V. Atty. Gen., 23 Ala. 190. 461, 463 Horn V. State, 98 Ala. 33; 13 South. 339 560 Howard v. State, 11 Ohio, 338 ... 531 Hutcherson V. State, 34 S.W. 908. 381 Hyde v. Middlesex Co., 3 Gray 367 463 I. Ingram v. State, 37 Ala. 19 655 In re Burrus, 136 U. S. 586; 10 S. C. 850 54 In re Daves, 81 N. 0. 73 533 In re Duncan, 139 U. S. 449; 11 S. C 573 ... 57 Iq re Frederich,' 149 u'. S.' 70;" 13 S. C. 793 57 la re Holt. 37 Atl. 909 532 In re Jugiro, 140 U. S. 291 ; 11 S. 0. 770 57 In re Loney, 134 U. S. 372; 10 S. C. 584 56 In ve Neagle, 135 U. S. 1; 10 S.C. 658 56 In re Neilson, 131 U. S. 176; 9 S. C. 673 35 In re Rolfs, 30 Kan. 758; 1 Pac. 533 15 In re Snow,' 120 U. 's. 383; 7 S.'c'. 556 35 In re wilsonViloiJ.' S.'575'; 11 S. 0. 870 59 In re Wood, 140 U. S. 278; 11 S. C. 738 57, 59, 71 Ins. Co. V. Raymond, 70 Mich. 485; 38 N. W. 474 38 Intoxicating Liquor Cases, 35 Kan. 751 251 J. Jackson v. Pittsburg Times, 33 All. 613 335 Jachson v. State, 17 South 333. .. 357 JefEries v. Randall, 14 Mass. 205. . 69 Jenkins v. State, 21 N. W. 233. . . 395 Jolmson V. Bouton, 35 Neb. 903.. 521 Johnson v. Inhabitants of AVhite- field, 18 Me. 286; 36 Am Dec. 731 463 Johnson V. State, 16 South. 99... 256 Johnson v. State, 33 S. W. 231.. . 170 Jones V. State, 90 Ala. 629; 8 South. 383 454 K. Keator v. People, 32 Mich. 484, . . 279 Kendall v. Ma, 10 Allen 59 438 PAGE Kennedy v. Holborn, 16 Wis. 457. 233 Ker V. People, 110 111. 627 43 Kersenbrock v. Martin, 13 Neb. 374, UN. W. 463 503 King V. Despard, 3 M. & R. 406. 70 King V. Dowlin, 5 Term R. 811. 76, 77 King V. Ford, Yel. 99 204 King V. Fowler, 5 Car. & P. 736. 44 King V. Sutton, 8 Barn. & C. 417. 70 King's Case, 58 Miss. 740 250 Kitchen v. State, 9 S. W. 461. . . . 281 L. Lambert v. Barrett, 157 U. S. 697; 15S. C. 723 59 Lamb v. State, 40 Neb. 313; 58 N.W. 963 498 Lane v. Comrs. 6 Mont. 478; 13 Pac. 136 7 Lane v. Com. , 59 Pa. St. 371. .. . 83 Langford v. State, 33 Neb. 783; 49 N. W. 766 496 Lawson v. State, 20 Ala. 63. .443, 445 Leggate v. Clark, 111 Mass. 308. . 437 Leverich v. State, 105 Ind. 277; 4 N. E. 853 435 Lewis V. State, 35 Ala. 380 173 Lewis V. Walter, 4 Barn. & Aid. 605 235 Lincoln v. Beckman, 23 Neb. 677; 37 N. W. 593 503 Long V. State, 23 Neb. 33; 36 N. W. 310 503 Loving V. Com., 80 Ky. 511 ISi Lowenthal v. State, 32 Ala 589.. 42 Lundy v. State, 91 Ala. 100; 9 South. 189 560 Lytle V. State, 31 O. St. 196 480 M. Manton v. Tyler, 4 Mont. 364; 1 Pac. 743 7 Manufacturing Co. v. Frawley, 68 Wis. 577. 475 Marine Bk.v. Fulton Bk., 3 Wall. 252 490 Marion v. State, 30 Neb. 333; 29 N. W.911 503 Markel y. Moudy, 11 Neb. 313; 7 N. W.853 503 Marks v. Baker, 28 Minn. 163; 9 N.W.678 335 Marshall V. Stine, 113 N. C. 697.. 37T Martin v. Hunter, 1 Wheat. 304.. 53 Matter of Franklin Bk. 1 Paige 249 490 Mattox V.' ij.' S.,' 146 vl S. 'UO;" 13 S. C. 50 46* Mayo V. State, 30 Ala. 82 451 Table of Oases Cited. IX PAGE May V. People, 60 HI. 119 ...:.. . 123 May V. State, 25 Tex. App. 114. . 559 McCann v. U. S., 3 Wy. 274 40 McCready V. Phillips, 44 Neb. 790 63]Sr. W. 7 501 McGuffle V. State, 17 Ga. 497 206 McKane v. Durston, 153 U. S. 684; 14 S. C. 913 65 McKleroy v. State, 77 Ala. 95.. . . 447 Meredith v. State, 132 Ind. 514; 24 N.E. 161 435 Messner v. People, 45 N. Y. 1 230 Metz V. State, 46 Neb. 547 485 Mickey V. Com., 9 Bush, 593 123 Miles V. State, 58 Ala. 390 446 Miles V. U. S., 103 U. S. 304 133 Miller v. People, 25 Hun 473 319 Miller v. People, 39 111. 457 123 Missouri v. Andriano, 138 U. S. 496; lis. C. 385 53 Montgomery v. Hernandez, 13 Wheat. 129 53 Morse V. Woodworth, 155 Mass. 233; 27 N. E. 1010; 29 Id. 525.. 438 Mott V. Dawson, 45 lo. 533 235 Murphy v. State, 1 Ind. 366 125 N. Neal V. City of Boston, 160 Mass. 518; 36 N. E. 308 415 Newsom v. State, 18 South. 206 . . 250 N. Y. V. Eno, 155 U. S. 89; 15 S. C. 30 56, 57 Nicholson's Case, 72 Ala. 176 ... 558 Noakes v. People, 25 N. Y. 380.. 500 O. Oaks V. Rodgers, 48 Cal. 197 279 O'Donaghue v. McGovern, 23 Wend. 25 233 Olive V. State, 11 Neb. 1; 7 N.AV. . 414 498 lOmaha P. & E. Assn. v. Mo. Pac. ! K. Co. 42 Neb. 103; 60 N. W. : 330 501, 502 Orr V. State, 18 South. 142 ... 451 Osborn v. Perry Co. , 53 Barb. 629. 460 Osborn v. Hawley, 19 O. St. 130. 431 P. Painter v. Hall, 75 Ind. 208 436 Parks V. State, 20 Neb. 515; 31 N. W. 5 493 Paul V. Virginia, 8 Wall. 168 38 Pearce v. Texas, 155 U. S. 311; 15 S. 0. 116 60 Penrod v. People, 89 111. 150 130 People V. Allen, 5 Denio, 76 42 People V. Berry, 65 N. W. 98. . . . 29 Fed. Ckim. Rbp. Vol. I— b PAGB People V. Bodine, 7 Hill, 147 535 People V. Bogart, 36 Cal. 245 44 People V. Clarke, 62 N. W. 1117.. 50a People V. Clementshaw, 59 Cal. 385 . 282 People V.' Cox, 46" Cal. 275 . ". '. '. '. ". 44 People V. Cunningham, 1 Denio, 524; 43 Am. Dec. 709 . 462 People V. Curtis, 54 N. W. 767.. . 476 People V. Davis, 21 Wend. 309. . . 169 People V. Edson, 68 Cal. 549; 10 Pac. 193 21 People V. Flack, 125 N. Y. 324. . 245 People V. Fowler, 88 Cal. 138; 25 Pac. 1110 21 People V. Garbutt, 17 Mich. 9 . . . 28 People V. Gault, 63 N. W. 724. . . 85 People V. Gobies, 67 Mich. 475; 35 N. W. 91 343 People V. Howard, 50 Mich. 239; 15 N. W. 101 38 People V. Jacobs, 49 Cal. 884 185 People V. Jassino, 59 N. W. 230.. 37 People V. Johnston, 48 Cal. 549. . 206 People V. Jones, 48 Mich. 554; 13 N.W. 848 86 People V. Krummer, 4 Parker Cr. 217 506 People V. Laird, 60 N. W. 457. . . 28 People V. Lee, 40 Pac. 754 23 People V. Lem You, 33 Pac. 13. . 282 People V. jMarkham, 64 Cal. 157; 30 Pac. 620 31 People V. McKinney, 10 Mich. 64. 45 People V. Murphy, 93 Mich. 41; 53 N. W. 1043 486 People V. Nolan, 32 Mich. 238. . . 27 People V. Parsons, 6 Cal. 487 21 People V. Peabody, 25 Wend. 472. 169 . People V. Powell, 87 Cal. 348; 25 Pac.481 70 People V. Powell, 68 N. Y. 88. . . 345 People V. Rector, 19 Wend. 569.. 173 People V. Shaber, 33 Cal. 36 21 People V. Sherman, 10 Wend. 298. 44 People V. Stubenvoll, 63 Mich. 339; 38N. W. 883 123 People V. Tomlinson, 66 Cal. 344; 5 Pac. 509 43 People V. Treadwell, 69 Cal. 226; 10 Pac. 502 45 People V. Weldon, 19 N. E. 279. . 395 People V. Yoakum, 53 Cal. 566. . . 525 Pepke V. Cronan, 155 U. S. 100; 15S. C. 34 57 Percival v. State, 45 Neb. 741; 64 N. W. 321 521 Pickerai v. Com., 30 S. W. 617.. 206. Pitbnogle's Case, 23 S. E. 351.... 539- Table of Cases Cited. FAOB Pointer v. U. S. 14 Sup. Ct. 410. . 517 PoUn V. State, 14 Neb. 540; 16 N. W. 898 496 Poucher v. Scott, 98 N. Y. 422 . . 490 Power V. Price, 16 Wend. 450 .. . 282 Presbury v. Com., 9 Dana, 203 . . 70 Prcuit V. State, 5 Neb. 377 497 R. Ealim V. State, 17 S. W. 417 ... . 283 B. R. Co. V. Hurt, 101 Ala. 34... 257 Bamsdell's Case, 130 Mass. 68 ... 251 Eeddick v. State, 16 South. 490.. 246 Reed v. State, 40 N. E. 525 435 Reg. V. Bird, 2 Eng. L. & Eq. 489 432 lleg. V. Birkett, 8 Car. & P. 782.. 395 Reg. V. Prince, L. R. 2 Crown Cas. 154 216 Tleg. V. Steele, 13 Cox, Cr. Cas. 108 464, 465 Reg. V. Tolson, 23 Q. B. Div. 168. 316 lleimer's Appeal, lOU Pa. St. 182; 45 Am. Rep 378 462 Respublica v. Mulatto Bob, 4 Ball. 145 94 Rex V. Burdett, 4 Barn. & Aid. 131 235 Re.K V.' FarneauxVRu'ss. & R. 386. 44 Rex V. Grove, 1 Moody, Cr. Cas. 447 45 Rex' V. Prince, 2 Car. & P. 517. . . 44 Rex V. Snowley, 4 Car. & P. 390. 44 Rex V. Tliorley, 1 Moody Cr. Cas. 343 44 Rhodes v. Com., 48 Pa. St. S96. . 84 Robb V. Connolly, 111 U. S. 624; 4 8. C. 544 60 Robb v. State, 35 Neb. 285.. .484, 485 Tloherts v. People, 17 Pac. 637. . . 517 Roberts v. Reilly, 116 U. S. 80; 6 8. C. 391 60 ■Ross V. Clawson, 47 111. 403 130 Rounds V. State, 57 Wis. 45 477 Roush V. State, 34 Neb. 335; 51 N. W. 755 505 Rung V. Shoneberger, 3 Watts. 23; 26 Am. Deo. 95 462 Russell V. State, 40 N. E. 666.... 434 S. Salem v. State, 89 Ala. 56; 8 South. 66 535 Sawyer v. Iron Works, 116 Mass. 424 428 Sfiylor V. Com., 30 S. W. 390 ... 131 Scblt V. State, 16 South. 935 256 fihiinnon v. Com,, 14 Pa. St. 236. 446 Shepherd v. People,73 111. 480.119, 120 PAGK Shriedly v. State, 33 Ohio St. 139. 394 Skelton v. Robinson, 16 South. 74 555, 557 Smith V, Com., 54 Pa. St. 209 .. . 446 Smith V. Kitchens, 51 Ga. 158 .. . 556 Smith V. Simmons, 103 Pa. St. 33; 49 Am, Rep. 113 463 Smith V. Smith, 10 S. W. 651. . . . 283 Smith V. State, 92 Ala. 30; 9 South. 408 2.57 Smith V. State, 15 South. 843 ... . .';60' Smith V. State, 22 Tex, App. 196; 2S. W. 542 162r. Smith V. Whitman, 6 Allen, 562. 437 Spies V. People, 12 J 111. 1; 13 N. E. 865; 17 id. 898 132 Stanley v.U. S., 33 Pac. 1025.... 2r<3. State V. Ackerman, 51 Ohio St. 103:36N. E. 828 38 Stiite V. Agnew, 53 Ark. 275; 12 S. W. 563.....'...' 205, 206 State V. Alston, 113 N. C, 666; 18 S. E. 692 90, 97' State V. Angel, 7 Ired. 27 120' State V. Anwerda, 40 la. 151 3 State V. Atherton. 50 la. 191 306 State V. Baker, 63 N. C. 376. ... 91 State V. Baker, 33 W. V. 319 ; 10 S.E. 639 536 State V. Baldy, 17 la, 39 399 State V. Barrett, 54 Ind. 484 838 State V. Barrett, 8 la. 539 888 State V, Bartley, 39 Neb. 353; 58 N. W. 172 490 State V, Paughman, 20 la. 498... 388 State V. iJenjamia, 7 La Ann. 47. 18L State V. Bordetta, 73 Ind. 185; 38 Am. Rep. 117 463. State V. Billings, 77 la. 417; 42 N. W. 456 290 State V. Blue, 84 N. C. 807 88; State V. Brandt, 41 la. 593 299 State V. Bray, 89 N. C. 481 88 State V. Briggs, 61 N. W. 417. . . . 307 Stale V. Broughton, 7 Ired, 96. . . 34i State V. Brown, 109 N. C. 807. . . 370 State V, Bargwyn, 87 N. C. 572.. BfiS- State V. Burris, 4 Har, 582 525 State V. Callahan, 47 La Ann. 444. 202 State V. Canada, 48 la, 448 290> Stale V, Carrick, 16 Nev. 120 45, State V. Carro, 26 La, Ann. 377. . 181. Stiite V, Ca=on, 20 La, Ann, 48,. . 181 State V. Church, 60 N. W. 143. . . 314 Sti4e V. Claiksoii, 3 Ala. 378 20& Stale T, Clawson, 80 Mo, 139 . . . 140 Slate V. Coffey, 44 Mo. App. 455. 140- State V. Cook, 33 R. W. 359 54S: State V. Cox, 6 Ired. 440 205 Table of Cases Cited. XI PAGE •State V. Creighton, 1 M. & McC. aOQ *•■ ■•■ . •••••■••■••■••■■••• ti\Ju State V. Crook. 115 N. 0. 760.. 874, 375 State V. Cross, 13 la. 68 306, 307 State V. Curtis, 71 N. C. 61 88 State V. Day, 58 la. 678; 13 N. W. ^ 97 •.....•... 378 State V. Deitrick,' 51 ' la! 467;' i N. W. 733 309 State V. Dineen, 10 Minn. 407. .. . 474 State V. Dudoussat, 47 La. Ann. 977; 17 South. 685 203 State V. Edens, 85 N. C. 526 ... . 458 State V. Egan, 59 la. 636; 13 N. W. 730 143 State V Emery, 98 N. C. 668 370 State V. Farmer, 104 N. C. 887. . . 370 State V. Fasset, 16 Conn. 467 341 State V. Fleming, 107 N. C. 905; 13S. E.131 90, 97 State V. Frencli, 65 N. W. 156. . . 378 State V. Frey, 10 Mont. 407; 35 Pac. 1055 5 State V. Fuller, 114 N. C. 885; 19 S. E. 797 85, 87 State V. Gailor, 71 N. C. 88 80 State V. Gilchrist, 113 N. C. 678; 18 8. B. 319 90, 99 State v.Givens, 5 Ala. 747 169 State V. Glaze, 9 Ala. 383 443 State V. Grant, 79 Mo. 118. . . .140, 148 State V. Greer, 32 "W. Va. 800. .. . 524 State V. Gullette 36 S. W. 354 .. . 506 State v. Haymond, 43 Am. Rep. noQ OK^ State V." Hayward, 1 if. & McO.' 546 77 State V. Henthorn, 46 Kan. 618; 36 Pac. 937 523 State V.Hodges, 26 Pac. 676 517 State V. Hogan, 81 Iowa, 747; 45 N. W. 903 378 State V. .Jackson, 9 Mont. 508; 24 Pac. 313 ... 12 State V. Jamison, 74 Iowa, 617; 38 N. W. 509 390 State V. Jolly, 3 Dev. & B. 110 . . . 397 State V. Jordan, 36 Iowa. 887 3 State V. Keim, 8 Neb. 63 490 State V. Kirkham, 1 Ired, 381 125 State V. Klilzke, 46 Minn. 348; 49 KW. 54 344 State V. Knight, 48 Me. 1 840 State V. Knight, 84 N. C. 793 ... . '279 State V. Lewis, 10 Kan. 157 382 State V. Lewis, 65 N. W. 395 .. . 394 State V. Little, 43 Iowa. 51 385 State V. Lovell, 33 Iowa, 304 143 State V. Lowry, 74 N. C. 131 88 PAGE State V. Magrath, 44 N. J. Law, 337 305 State V. Maxwell, 51 Iowa, 314; 1 N. W.666 433 State V. Mayor, 5 Port. 379 461 State V. McCormac, 116 N. 0. 1083; 21 S. E. 698 93 State V. McKnight, 111 N. 0. 690; 16 S. E. 819 90, 97 State V. Mertens, 14 Mo. 94 306 State V. Mitchell, 85 N. C. 674. . . 79 State V. Morrison, 3 Dev. 299 ... . 370 State V. Moulton, 108 Mass. 307. . 388 State V. Munch, 33 Minn. 67 45 State V. Munchrath, 78 Iowa, 268; 43 N. W. 211 393 State V. Murphy, 43 Ark. 178 ... 181 State V. Murphy, 47 Mo. 374 206 State V. Myers, 10 Iowa, 448 402 State V. Nash, 7 Iowa, 347 390 State V. Nelson, 7 Ala. 610 338 State V. New, 33 Minn. 76 243 State V. Norton, 83 N. C. 638 80 State V. Norwood, 115 N. C. 789; 20 S. E. 713 93 State V. Oakley, 108 N. C. 408; 9 S. E. 575 88 State V. O'Hagan, 38 Iowa, 604. . . 378 State V. Outerbridge, 83 N. C. 617 79 State V. Patrick, 107 Mo. 147; 17 S. W. 666 140 State V. Pendergrass, 3 Dev. & B. 365 301 State V. Phippen, 62 Iowa, 54; 17 N. W. 146... 279 State V. Phipps, 64 N. W. 411. . . . 394 State V. Pilkington, 60 N.W. 503. 307 State V. Potter, 28 Iowa, 554 299 State V. Prudhomme, 35 La. Ann. 532 201, 203 State V. Quarrel, 2 Bay. 150 70 State V. Keed, 62 Me. 142. 133 State V. Revels, Busb. 200 79 State V. Rhodes, HI N. C. 647; 15 S. E. 1038 80 State V. Rider, 95 Mo. 486; 8 S. W. 733 140, 143, 143 StRte V. Ring, 29 Minn. 78; 11 N. E. 238 45 State V. Roberts, 1 Dev. 259 307 Stale V. Robinson, 29 La. Ann. 364 183 State V. Row, 81 Iowa, 188; 46 N. W. 873 394 Stale V. Russell, 83 La. Ann. 135. 301 203 State V. Saunders, 68 Iowa, 370; 37 N. ■W.455 890 Xll Table of Oases Cited. PAGE Sfnte V. Shippey, 10 Minn. 233... 206 State V. Shonliausen, 26 La. Ann. 431 182, 185, 186 State V. Shroyer, 104 Mo. 411; 16 S. W. 886 140, 143, 143 State V. Simon, 87 La. Ann. 569.. 186 State V. Smith, 13 Kan. 274 45 State V. Stevens, 1 S. D. 480; 47 N. W. 546 314 State V. Stiles, 5 La. Ann. 334 181 State V. Stirason. 23 N. J. Law, 9. 42 State V. Stone, 24 S. W. 164 38 State V. Strattman, 100 Mo. 540; 13 S. W.814 141 State V. Tiiylor, 89 N. C. 577 371 State V. Ttiomas, 28 La. Ann. 827 185, 186 State V. Tliompson, 43 Arli. 517.. 44 State V. Tliompson, 32 La. Ann. 796 45 State V. Tliompson, 91 N. C. 496; 1 S. E. 931 80 State V. Thorp, 73 N. 0. 186 81 State V. Tilghman, n Ired. 513.. 465 State V. Van 2Sfioe, 63 N. W. 537. 313 State V. Van Winkle, 80 Iowa, 15; 45 N. W. 388 395 State V. Wambold, 72 Iowa, 468; 34 N. W. 213 309 State V. Ward, 48 Ark. 36; 3 S. W. 191 44 State V. Warren, 93 N. C. 825. ... 873 State V. W.itson, 81 Iowa, 380; 46 N. W. 868 309 State V. Wcems, 65 N. W. 387. . . 301 State V. Whaley, 41 Pac. 853 5 State V. Wickliff, 64 N. W. 383. . 407 State V. Wilbourne, 87 N. C. 529. 370 State V. Woolaver, 77 Mo. 108... 136 State V. Zeitler, 68 Ind. 441 125 Stephens v. State, 1 Swan. 157. . . 279 Stevens v. State, 19 Neb. 647; 28 N. W. 304 493 Stewart v. State, 31 Tex. Cr. 153; 19 S. W. 908 147 Stokes V. People, 53 N. Y. 164. . . 245 Strong V. R. R. Co., 62 N. W. 803 407 Sturtevantv. Com., 153 Mass. 598; 38 N. B. 648 ... 427 Sweenev v. Baker, 13 W. Va. 158. 235 Swisher V. Com., 26 Grat. 963.... 465 Taylor v. Ash by, 3 Mont. 248 . . 6 Taylor v. Plummer, 105 N. C. 56 377 Territory v. Egan, 8 Dak. 116; 13 N, W. 568 525 PAGE Terry v. Starch Co., 43 Neb. 866; 62 N. W. 255 503 Thomns v. State, 100 Ala. 58; 14 South, 631 256 Thomas v. State, 37 Miss, 353 ... 135 Thompson V. Riggs, 5Wall. 663.. 490 Thompson v. State, 100 Ala. 70; 14 South. 878 ". 25f. Thornton V. Stale, 20 Tex.App.519 163 Tindle v. Nichols, 20 Mo. 326 840 Titus V. State, 49 N. J.Law, 36; 7 Atl. 621 65 Townsend v. State, 133 Ind. 315; 81 N. E. 797 43& Trust Co. V. Doig, 70 111. 53 501 Tull V. David, 27 Ind. 877 480- Turpin v. State, 16 Ohio St. 540 . 433. U TJ S. V. Bornemann, 36 Fed. 257. 45 IT. S. V. Butler, 38 Fed. 498 280 U. S. V. Carll, 105 U. S. 611 40 V. S. V. Cooke, 17 Wall. 168 40 U. 8. V. Cruikshank, 93 U. S. 542. 40 U. S. v.Gale, 109 U. S. 65; 3 S.C. 1 71 U. S. V. Northway, 130 U. S. 328; 7S. C. 580 41 U. S. V. Perez, 9 Wheat. 579 4'25 TJ. S. V. Wilson, Baldw. 78 426i U. S. V. Wiltberg-er, 5 Wheat. 76. 136 U. S. V. Wood, 8. Wash. C. C. 443 426; Upton V. State, 5 la. 466 394 W. 1 Wacaser v. People, 134111. 439; 25 N. E. 564 133. Walker v. State, 18 South. 893. . . 271) Waller v. State, 105 Ind. 589; 5 N. E. 735 433 Wassum v. Feeney, 131 Mass. 98. 69 Wau-kon-chaw-neek-kaw V. U. S., Morris, 383 ' gflg; Way V. Bulterworth, lOBMnss. 75 341 Weaver v. People, 133 111. 543; 34 N. E. 571 _.. 122 Webb V. City of Demopolis, 95 Ala. 116; 13 South. 389 462 Weireter v. Slate, C9 Ind. 269 ... 125 Weston V. Luraley, 33 Ind. 486 . . 43a Wheaton v. Beecher, 66 Mich. 307- 38 N. W. 503 ; 28,5. White V. Nichols, 3 How. 266, 233. 235 Whitteu v. Tomlinson, 10 S.C. 297 64 Wildedhus Case, 120 U S 1-7 S. 0. 385 ■. ; ,.;(; Williams v. State, 65 N. W. 783'. 508 Willis V. People, 1 Scam. 399.119, 120 Table of Cases Cited. xiu PAGE Willia V. State, 43 Neb. 103; 61 JS. W. 254 496 ■Wills V. State, 8 Mo. 53 310 Wiisou V. Filch, 41 Cal. 363 236 AVilsoii V. Hiimer, 1 Dowl. »48. . . 554 "Wilson V. People, 5 Park. Cr. 178. 431 ■Wilson V. Territory, 1 Wyo. 155. 522 "Winsor v. Queeu, L. R., 1 Q. B. 2b9 425 PAQK Woodward v. Dean, 113 Mass. 297 69 Woodward v. Lander, 6 Car. & P. 548 335 Wormsley'sCase, lOGrat. 658... 535 Yates V. Town of Warrenton, 84 Va. 337; 4 S. E. 818. 462 ALABAMA. Criminal Code Cited, § 3719 415 §§ 3789-3831 450 I 4013 44a § 4395 656, 5i7 § 4396 656 § 4411 656 § 4787 656 § 4809 553 Par. 2040 ARIZONA. Penal Code Cited, 326 CALIFORNIA. Penal Code Cited, •S 7, subd. 6.,., 20|§952 19. 20 |950,,., ,. 19, 20| COLORADO. Revised Statutes Citbd, R. S., § 5480 466 CONNECTICUT General Statutes Cited. § 962 61 1 § 1615., § 1613 6l| 61 DELAWARE. Revised Statutes Cited, Chap. 127, § 10 357 1 Chap. 127, §11.... „„^ 855, 857 INDIANA. Revised Statdtes Cited, 1881, § 463 436 ^ 650 435 2843 436 1894, § 468 , .- .^. . . .... 436 § 663 485 § 3040 , 436 xir Table of Cases Cited. IOWA. McLain's Annotated Code Cited. 6686. PAGE. .. 387 CoDB Cited. 3636 300 3647 886 4287 383 , 4293.,. 385 4300 310 4305 280,309, 405 4306 309, 310 4337 385 ; 4359 280 § 4405 291 §4587 a §4588 a 1851, 8 979 277, 278 I 1594 277, 278 1860, §§ 201, 1843 278- I 2684 277 1873, g 277 278, 27» § 4312 278- KANSAS. Session Laws Cited. 1895, chap. 96, §9.., 14 Ckiminai Code Cited. Art. 1 14 I Art. 2 , 15- LOUISIANA. Laws Cited 1893, Act No. 7 ISS Constitution Cited. Alt. 81 .J, 183 I Art. 168 301 Revised Statutes Cited. 1991. 1992. 201 203 I 1025 . § 1064 , 20r MASSACHUSETTS. General Statutes Cited. Chap. 160, § 23 425. Public Statutes Cited. Chap. 207, 8 9 213 214, § 10 427 214,§25 417 Chap. 101, §6 210 153,§5 419 202, |22 425 202, §§27, 28 214 Revised Statutes Cited. Chap. 125, § 18 42& Statutes Cited. 1818, ch. 124, § 1 425 1839, ch. 127 425 1874, ch. 315 417 ■l884,ch. 277 410 1886, ch. 805 214 ch.829 215 1887, ch. 485 427 1888, ch. 311 215 ch. 391 214 1889, ch. 100 416- 1893, ch. 396, §§ 42, 48 417 ch. 466 214 Table of Cases Cited. XV MICHIGAN. Howell's Annotated Statutes Oited. PAGE 1 How. Ann. St. § 9132 316 §9133 817 §9503 340 2 How. Ann. St. § 9134 27 §9755 843 PAGE. 3 How. Ann. St. § 19973 82, 3a § 2283a 485 §9286 33. g9807e8 843. Session Laws Cited. 1889, Act No. 1)7 30 Act No. 264, § 1 33 1893, Act No. 8, § 1 343, 343 1893, Act No. 74. 36. Act No. 118, §29 842, 343- MINNESOTA. General Statutes Cited. 1894, § 6143. 844 MONTANA. Civil Code Cited. 1895, § §86..., 3162. Cbiminal Laws Cited. Penal Code Cited. Ifi85, § 1895 363. I 2046. ,2048. 12354. 13 4 13 1895, §2273 1 a §2378 13 82335 1$ I 2337 13 §3440 »- ,1362., § 1741. MISSISSIPPI Annotated Code Cited, 349- Code Cited. . 246. MISSOURI. Revised Statutes Cited. I 3487., . 135, 142' NEBRASKA. Compiled Statutes Cited. g 20, c. 50. §31, c. 7.. 492|§22, c. 8. 514 48» XVI Table of Oases Cited. Ckiminal Code Cited. PAGE i64 479, 481 il45 505 I 391 513 FAOB §417 605 I 444 515 §579 493, 514 Session Laws Cited. 1891, c. 50, p. 847 .... 519 NEW JERSEY. COHSTITUTIOJT CiTBD. Art.l,§7. §83. , Ckiminal Peo. Act Cited. 68 66 NEW YORK. CKiMmAii Code Cited. 218 I §480 820 NORTH CAROLINA. Code Cited. 1 413, i906, 86 I §§ 1060, 1061. 97| §1194 Art. 1, § 13. Constitution Cited. 79 86 Laws Cited. 1889, chap. 484 90, 96 1 1893, p. 76 83 1893, chap. 85 95 { 16816 ,6817 581, 533 OHIO. Revised Statutes Citeo, 531 I §7218 480 i 1800. OREGON. Code Cited. SOUTH DAKOTA. Compiled Laws Cited. 6 6884 313 ^7236 314 67288 314 I 7284 . I 7386 . S41 814 814 Table of Cases Cited. xvii TEXAS. Criminal Pkockdube Codk Cited. Art. 746. PAGE .. 160 Penal Code Cited. Art. 50 177 | Art. 130 Revised Statutes Cited. 163 i809. ,810 181, 182 181 I §1061 182 UNITED STATES. Constitution Cited. Art. 8 214 Laws Cited, 1789, chap. 20, § 25 53 1790 76 1833, chap. 57. § 7 54 1842, chap. 257 54 1867, chap. 28, g 1 54 1867, chap. 28, § 2 58 1883, chap. 349 74 1885, chap. 353 59 1891, chap. 548.. ' 74 Revised Statutes Cited. S709 53 §751 55, 59 §753 55, 59 § 753 54, 55 § 754 55, 57, 05 I 755 55 §761 § 764 §1025 -. 46, §4744 § 5393 § 5396 75, 55 59 78 74 75 78 UTAH. Compiled Laws Cited. 1888, § 4493 233 I 1888, § 4497. §4495 231 I 235 VIRGINIA. Code Cited. I 3712. 539 WEST VIRGINIA. Code Cited. Chap. 144, §1 624 WISCONSIN. Revised Statutes Cited, § 4786, 476 Fed. Ceim. Rep., Vol. I— c. FEDERAL and STATE CRIMINAL REPORTER Supreme Court of Iowa. (Filed December 13, 1895.) STATE V. MEIER 1. Bail— Bond— SuKBENDBR of dependant. Under section 4587 of tlie Code, a bond on appeal from a judgment im- posing a fine or imprisonment until it was paid, conditioned for the payment of said fine and the surrender of defendant; is not discharged merely by the surrender and imprisonment of defendant. 2. Same. Where, under such abond, the defendant is surrendered and Imprisoned, an order of the governor, suspending the imprisonment does not estop the state from suing on the bond. Appeal from the district court, Polk county ; W. A. Spubeier, Judge. Action on a bond. Judgment against the defendants. The de- fendant Hoffman appeals. J. F. Conrad and T. L. Sellers, for appellant Dowell & Parish and W. G. Harvison, for the State. KiNNB, J. — 1. The record discloses the following facts : That defendant Meier was indicted and convicted in the district court of Polk county, Iowa, for a liquor nuisance. He was sentenced to pay a fine of $300, $25 attorney's fees, and the costs, and was Fed. Cbim. Rep., Vol. I.— 1 2 Federal and State Ceiminaij Reporter, Vol. L ordered imprisoned in the county jail of said county for 104 days unless said fine, attorney's fees, and costs were paid. Said Meier appealed from said judgment, and executed a bond, with the de- fendant and appellant Hoffman as surety. Said bond was condi- tioned as follows: "Now, therefore, in case the said Martin Meier shall well and truly pay said fine, or such part of it as the supreme court may direct, and if the said Martin Meier shall sur- render himself in execution of the judgment and direction of the supreme court, and in all respects abide the orders and judgments of the supreme court, then this bond to be void ; otherwise, to be and to remain in full force and effect." On appeal to the supreme court the judgment below was affirmed. 55 N. W. 521. There- after the appellant Hoffman turned the defendant Meier over to the custody of the sheriff of Polk county, who placed him in jail to serve out the sentence, where he remained until July 11, 1893, when he was released upon an order froKi the governor of the state suspending sentence only " so far as the order of imprison- ment is concerned." In this action a judgment was rendered against the surety, from which he prosecutes this appeal. 2. Appellant contends that, under the facts disclosed in record? the court erred in rendering a judgment against him ; that he had? prior to the beginning of the proceeding to forfeit the bond, caused Meier to be surrendered in execution of the judgment. Further- more, he claims that, by reason of the act of the governor, the state is now estopped from recovering against him. Our statute provides : " After conviction upon an appeal to the supreme court, the defendant must be admitted to bail as follows : (1) If the appeal be from a judgment imposing a fine, upon the undertaking of bail that he will pay the same, or such part of it as the supreme court may direct, and in all respects abide the orders of the judg- ment of the supreme court upon the appeal. (2) If the appeal be from a judgment of imprisonment, upon the undertaking of bail that he will surrender himself in execution of the judgment and direction of the supreme court, and in all respects abide the orders and judgment of the supreme court upon the appeal * * *" Code, section 4587. Now, it is contended that, when the appellant placed Hoffman in charge of the sheriff, he thereby discharged his obligation under the bond. We do not so construe the law and State v. Meier. 3 the obligation entered into by Hoffman. Hofifman, as surety, by the express terms of his bond, agreed, if the cause against Meier was affirmed, to "pay said fine, or such part of it as the supreme court may direct," and to see that Meier surendered himself in execution of the judgment. His bond was to be void only on the happening of both conditions. It is said that the bond is given under the second division of the section above quoted. That is not true. That division refers to a case where bail is given on a judgment for imprisonment alone. The case at bar is one where there was a fine imposed, and a judgment for imprisonment until it was paid. Hence the bond was properly framed so as to cover the case presented. Code, section 4588. It is true in this case that the imprisonment is the means provided by the statute for coercing payment of the fine, but it is settled by a long line of authorities that the undergoing of imprisonment in such a case by the defendant would not release him from tlie payment of the fine. State V. Jordan, 39 Iowa, 387 ; State v. Anwerda, 40 Iowa, 151; City of Keokuk v. Dressell, Iowa, 597; Albertson v. Kriechbaum, 65 Iowa, 18, 21 N. W. 178. The obligation of Hoffman was not in the alternative that he would pay the fine or deliver the defend- ant in the execution of judgment, but he expressly undertook to do both. Such being the case, Hoffman's liability was not satis- fied by delivering the defendant to the sheriff, in execution of the judgment. We do not think this contention of the appellant requires further discussion. 3. Lastly, it is urged that the state should be estopped from recovering against Hoffman because of the action of the governor. The order of suspension of the governor, as we have shown, related only to the imprisonment Before its issuance, Hoffman had com- plied with one condition of the bond, — he had surrendered his principal to the sheriff. Now, the action of the governor in releas- ing Meier from further imprisonment in no way affected any right of Hoffman. He was not induced thereby to change his position. He did nothing by reason thereof. The essential elements of an estoppel are wanting. As we have seen, Hoffman's liability to pay the fine was absolute in case the judgment was affirmed and his principal failed to satisfy it. Therefore, any action which the executor might take touching the imprisonment could in no wise 4 Federal and State Criminal Eeporter, Yol. L affect Hoff man's liability. We discover no error, and the judg- ment below is affirmed. Supreme Court of Montana. (Filed December 9, 1895.) STATE V. PILGEIM. 1. Appeal — New trial. Before the adoption of the Penal Code of 1895, an appeal from a judg- ment brings up for review the order denying the defendant's motion for a new trial. 2. Same— "Waivee. Defects in a motion for a new trial are not waived by a special appear- ance for the purpose of moving for a dismissal of the motion for such de- fects. 3. Same — Denial. A motion for a new trial is properly denied where the notice does not particularly state any error whatever. 4. Statute— Construction. If one use of a punctuation will cause a statute to convey a meaning, and the other use of punctuation will simply give it a collection of words without sense, the former construction should, of course, be adopted, as effect must be given to the statute. Appeal from a judgment convicting defendant of a criminal offense, and from an order denying a motion for a new trial. Largent & Huntoon, for appellant. H. J. Haskell, W. D. Gardner and Jas. W. Freeman, for the state. DB WITT, J. — The defendant was convicted of the crime of branding a calf of another with intent to feloniously steal the same. He appeals from the judgment. These proceedings were all before the adoption of the Penal Code of 1895, and therefore State v. Pilgrim. 5 the appeal from the judgment brings up for review the order denying defendant's motion for a new trial. The defendant gave notice of intention to move for a new trial. The county attorney thereupon appeared specially, and moved to dismiss the motion upon the ground that the notice of intention did not particularly state the errors relied upon. There was, therefore, no waiver by the state of the defects in the notice of intention to move. It is the fact that the notice did not particularly state any error what- ever. The motion was denied, and properly so. State v. Frey, 10 Mont. 407 ; 25 Pac. 1055 ; State v.' Whaley, (Mont.) 41 Pac. 852. There could be no better case than the present one to illus- trate the propriety of the practice defined by the Code of requir. ing a defendant to specify particularly the errors relied upon. In this case the appellant claims there were 203 errors committed upon the trial. It would certainly be a vicious practice if he could move for a new trial, and not specify in his notice which one of the 203 errors he relied upon. The county attorney would have no information as to which alleged error was claimed to be substantial. Furthermore, on the argument before the district court counsel might present three of the errors, and then come before this court and rely upon the other 200. There may be isolated cases where the enforcement of the rules of practice may seem to be severe, although we do not suggest that this is such a case. But, if these statutory rules are to be neglected, or repealed,, the coiirts would find themselves in inextricable confusion. The appellate courts and the trial courts would be working at cross purposes, and appeals would be prosecuted in this court upon questions never raised in the lower courts. "With no specification of error in the notice of intention to move for a new trial, the dis- trict court was correct in denying the motion. The was also a motion in arrest of judgment The only ground set forth in the same is " that the facts stated in the information herein do not constitute a public offense or a crime." The stat- ute under which the information is filed is section 86 of the Crim- inal Laws (Comp. St. 1887). It is as follows: ''Every person who shall mark, brand, alter, or deface the mark or brand of any horse, mare, colt, jack, jennet, mule, or any one or more head of neat cattle or sheep, goats, hogs, shoats, or pigs not his or her 6 Federal and State Criminal Eeporter, Vol. I. own property, but belonging to some other person, or cause the same to be done, with the intent thereby to steal the same, or to prevent the identification thereof by the owner, shall, upon con- viction thereof, be punished by imprisonment in the state prison for a term not less than six months, nor more than five years." ApptjUant contends that under this statute no offense is charged in the information. We present his argument from his own brief, as follows: " Our contention is that that section can mean only that if any person shall mark the mark or brand, or brand the mark or brand, or shall alter the mark or brand, or shall deface the mark or brand of any animal mentioned in the section he shall be guilty of an offense. Any other construction would make strange reading, namely : 'Every person who shall brand of any horse.' 'Every person who shall alter of any horse,' and so on through the whole section. In other words, the punctuation is such as to preclude any other construction, for the reason the comma is after ' brand,' and if the other construction is to be placed upon it the comma should have been placed after ' of.' The comma being, placed where it is, leaves us no other grammatical construc- tion that will make sense of the paragraph, except that the animal must have been branded or marked at the time that the offense was committed, and that brand or mark must be by the party offending marked, branded, altered or defaced." His argument, is, however, only a criticism of punctuation. The comma follow- ing the word " brand," used the second time in the section, should follow the word " of " which succeeds the word "brand." The comma after the word "alter" should be omitted. Then that portion of the statute would read as follows : " Every person who shall mark, brand, alter or deface the mark or brand of, any horse, mare," etc. We understand that the offenses described in the statute are " to mark any horse," etc., " to brand any horse," etc., " to alter or deface the mark or brand of any horse," etc. The punctuation of a statute is not entitled to great weight in its construction. Taylor v. Ashby, 3 Mont. 248. The punctuation which is given the statute in the preceding remarks makes it con- vey a sense. The punctuation as printed in the statute book robs the statute of all meaning and sense. To make it read : "Every person who shall brand of a horse," etc., is an absurdity. If one State v. Cadotte. 7 use of a punctuation will cause a statute to convey a meaning, and the other use of punnctuation would simply give a collection of words without sense, the former construction must, of course, be adopted. An efiect must be given to the statute. Hedges v. Commissioners, 4 Mont. 280; 1 Pac, 748; Manton v. Tyler, 4 Mont 364 ; 1 Pac. 743 ; Lane v. Commissioners, 6 Mont 473 ; 13 Pac. 136. We are therefore of opinion that the motion in arrest of judgment was properly denied. The judgment is therefore affirmed. PEMBERTON. C. J. and HUNT, J., concur. Supreme €ourt of Montana. (Filed December 9, 1895.) STATE V. CADOTTE. 1. Tbial— Jtjet. The fact that a juror is a brother-in-law of the county attorney, who is prosecuting, does not disqualify him from acting as such juror. 2. Witnesses— Child. In a criminal case, a boy fifteen years old, who states that the oath taken requires him to tell what is so, and that what is so is the truth, and what is not so is falsehood, and if he does not tell the truth he will be punished, is a competent witness. 3. EymENOB— Homicide— Clothing. The clothing of the deceased, when fully identified, is admissible in evidence to show the course of the bullet which caused his death. 4. Same— Knife. On a trial for murder, a knife which is not clearly identified as the one claimed to have been in the hands of the deceased when killed, is not ad- missible in evidence. 6. Witness — Cbedibilitt — Contbadictobt statements. Where, on the trial for murder, the defendant relying on self defense for acquittal, becomes a witness in his own behalf, it is competent to attack his credibility by proving statements made out of court as to the self defense, contrary to those which he had made as a witness on the trial. 8 Federal and State OrimInal Eeportee, Vol. I. 6. Trial — Remarks of proskcuting attorney. Where no exception is taken and no request for a reprimand made, im- proper remarks of the prosecuting attorney will not be considered. 7. Trial — Charge. Under section 362 of Penal Code of 1895, on the trial for murder where the defendant attempts to testify on the ground of self defense, an instruc- tion applying tHe measure of the circumstances justifying a killing in self defense to an individual of the class of men to which defendant be" longs, instead of " a reasonable person," is properly refused. 8. Same. An instruction, which informs a jury that if they do not find the defend- ant guilty of murder in the first degree under the information, they could find him guilty of murder in the second degree, or manslaughter, or not guilty, is proper. Appeal from a judgment, adjudging defendant guilty of.murder in the first degree, and from an order, denying a motion for a new trial. John B. Tattan and "W. B. Sands, for appellant. H. J. Haskell and B. L. Powers, for the state. DB WITT, J. — The defendant was convicted of the crime of miirder in the first degrea He appeals from the judgment and from an order denying him a new trial. Pen. Code 1895, § 2272. Counsel for appellant, who 'was appointed by the district court, also appeared in this court, and argued the appeal. He has con- scientiously presented such matters as appeared to him to be worthy of consideration. There is, indeed, but little, in the ap- peal that merits serious attention ; but the gravity of the offense is perhaps a reason for treating to some extent the questions which appellant's counsel has called to our attention.' They will be treated in their order, as follows : Juror Johnson was challenged for cau^e, because he was a brother-in-law of the county attorney, who was prosecuting. The court denied the challenge. Appellant alleges error. This fact did not disqualify the juror. Penal Code 1895, § 2046 et seq. Furthermore, the examination of this juror upon this voir dire does not at all tend to show any bias, either implied or actual. Id. § 2048. State v. Cadotte. 9 Objection is also made to the ruling of the court in allowing Nelson Grandchamp, a boy fifteen years of age, to testify. Sec- tion 2440, Penal Code 1895, is as follows : " The rules for de- termining the competency of witnesses in civil actions are appli- cable also to criminal actions and proceedings, except as otherwise provided in this Code." Section 3162, Code Civ. Proc. 1895, is as follows: "The following persons cannot be witnesses: 1. Tliose who are of unsound mind at the time of their production for examination. 2. Children under ten years of age, who ap- pear incapable of receiving just impressions of the facts respect- ing which they are examined, or of relating them truly." It is argued by appellant that this witness did not sufficiently under- stand the nature of an oath, and his duties and obligations as a witness. The witness, upon being asked if he understood what he had done when he took the oath as a witness, answered that he did, and that he knew the difference between truth and falsehood, and the difference between telling the truth and telling a lie; and that he knew he was there to tell the truth, and that he knew the truth was that which was so, and not that which was not so, and that he understood he was there to tell what was so. He said the truth did not mean to tell something he did not know, but, on the contrary, meant to tell what he knew. He said he knew that if he did not tell the truth he would be punished. There was a long examination of the witness, and the answers were to the effect above noted. Counsel finally frightened and confused the witness by his questions, so that he stood mute, but when ex- amined by the court and the county attorney he very clearly qualified himself in the testimony above given. The clothing worn by the 'deceased at the time of the killing Was introduced in evidence. Defendant's counsel objected to its introduction, on the ground, that it was not sufficiently identified as the garments worn by the deceased when he was killed. The coroner, as a witness, testified that he had with him the clothes that he took off of the body, and thereupon produced them, and said they were taken from the body. Mrs. Julia Grrandchamp, afterwards called as a witness, said that she knew the clothes that the deceased was wearing, and that they were the same clothes Fed. Ckim. Rep., Vol. 1—2 10 Federal and State Criminal Eepokter, Vol. 1. that were produced by the coroner in the court room. There is no question about the clothes being identified. The alleged lack of identification was the only objection. They were offered for the purpose of shedding some further light upon the course which the bullet took through the body of the deceased. The defendant desired to introduce in evidence a knife, it being / claimed that the deceased had a knife in his hand when defend- ant shot him. The court refused to allow the knife to be intro- duced, for the reason that it had not been shown that it was the knife which the deceased had at the time of the killing. It very clearly appears that the identification of the knife was wholly in- sufficient The defendant himself said he could not tell whether it was the knife or not The county attorney asked a witness — Isadora Sorell — whether he had heard the deceased, in the presence of certain parties named, make the following statement to Maj. Garter : " I shot Oliver Grandchamp as he was running towards the house, after I had told him to stop." The question was asked by the county attorney, and objected to by the defendant's counsel, and the ob- jection sustained. The error which the appellant now claims is the allowing the question to be asked. But the question was asked before objection could be made. It was never answered, and at the request of the defendant's counsel the court cautioned the jury that they should pay no attention to the question. There was no error committed here of which the defendant can com- plain. There was a considerable volume of testimony offered by the state to which oljjections were similarly made, but it all comes under one principle, and may be set forth in one statement The defendant went upon the stand himself. He admitted that he shot and killed Oliver Grandchamp. His defense was self-defense. He stated upon his examination as a wit- ness what he claimed to be facts in regard to the killing, and in regard to what he claims was his self-defense. There- upon the county attorney asked him a number of questions to the effect of whether he had not made certain statements (reciting them) at certain times and places, in the presence of certain people. These statements, as recited by the county attorney, appeared to State v. Cadotte. 11 be the defendant's accounts of the killing, given at such other times and places prior to the trial. The statement of the defend- ant which the county attorney desired to show that he had made w^s repeated in full in the question. Witnesses were afterwards called by the state to prove that defendant had, prior to the trial, and at the times and places, and in the presences mentioned, made the statements about the killing as to which defendant had been interrogated. The fact is that these alleged statements made by the defendant before the trial in some respects did not differ largely from his evidence given on the trial. Defendant's counsel tnade two objections to this class of testimony. The first objec- tion was that a portion of the testimony was a confirmation, and oot a contradiction, of the testimony given on the stand. If it were a confirmation, it certainly could not be objected to by the defendant. He was getting the benefit of a self-serving declara- tion. The other objection was that a portion of this testimony was a confession by the defendaut, and it was not shown that such confession was made freely, deliberately, and voluntarily, and without the influence of promises or threats. In the first place, we are of the opinion, even if it were a confession, that it very sufficiently appeared that whatever statements defendant^ had made before the trial were voluntarily, freely, and deliberately, and not under the influence of threats or promises. In the second place, we are satisfied that the statements of the defendant sought to be proved were not confessions at all. Instead of being con- fessions of guilt, they were statements of his self-defense, state- ments in which he admitted the killing, and endeavored to show that he was obliged to kill to save his own life. They were ad- missions, to be sure, of the killing, but self-defending statements as to the same. And this was precisely the position he occupied upon the trial. He relying on self-defense for acquittal, it was competent to attack his credibility by proving statements made out of court as to the self-defense, contrary to those which he made as a witness on the trial. Another reason presented by the appellant for granting a new trial is misconduct of the county attorney. It appears that upon the argument the county attorney used the following language : " We, too, are superstitious; and it is an old saying, and by some 12 Federal and State Criminal Eeporter, Vol. L believed to be true, that a man to be hung is known by his neck." Counsel has here stated that defendant had a birthmark upon his neck. His contention is that under these circumstences the re- marks of the county attorney to the jury were such misconduct as should grant a new trial. But the judge, in settling the bill of exceptions, states that no exception was taken by tlie defendant's counsel to these objectionable remarks by the county attorney. The court was not requested to reprimand the county attorney, or to stop him in the remarks which he was making, nor was there any request that the jury be cautioned to disregard the language. The remarks of the county attorney in commenting upon personal deformities of the defendant on trial were certainly reprehensible. But, defendant's counsel being present, and there being no excep- tion taken, and no complaint at the time when the matter could hBve been remedied under the circumstances in this case we are of opinion that the judgment should not be reversed. State v. Jack- son. 9 Mont. 508; 24 Pac. 213. The defense being self-defense, the court very fully instructed the jury upon this subject, and upon the question of the immin- ence and urgency of the presumed dan'ger which would justify one in killing. In addition, the defendant requested the following instruction: " The court further instructs you that in judging the degree or sense of danger stated in instruction on page fourteen it must be that sense of danger appearing to the defendant at that time, and to men or individuals of his race, standing, individual- ity, and intelligence, and with this qualification you will consider the instruction as he threats on page fourteen of these instruction." This was refused, and we think properly. The Penal Oode of 1885 provides, in section 362, as follows; "A bare fear of the com- mission of any of the offenses mentioned in subdivisions two and three of the preceding section, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the cir- cumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of sucii fears alone." As noted above, the court amply instructed under the meaning and spirit of this section of the statute. The additional instruction requested and refused asked the court to put this defendant upon a wholly different standing than that provided State v. Oadotte. 13 by law as to all defendants. The situation must be such as to ex- cite the fears of a reasonable person. The instruction refused would put the matter not as to a reasonable person, but rather as to such a person as this defendant was. The appellant also complains of the following instruction: "Un- der an information charging the defendant with murder in the first degree you can also find the defendant guilty of murder in the second degree, or manslaughter, or you can find the defendant not guilty, if you do not find the defendant guilty of murder in the first degree." He contends that under this instruction the court told the jury, in effect, that they could find the defendant either guilty of the murder in the first degree or acquit him al- together, and did not leave it to the jury to find him guilty of murder in the second degree or manslaughter. We think the criticism of the instruction is verbal, rather than meritorious. The language is not artistic. The last clause 6l this sentenee is misplaced. It should have been at the commencement ; then the instruction would have been wholly clear. But, even as it is, we think it was not subject to misunderstanding. It sufiiciently in- formed the jury that under the information, if they did not find the defendant guilty of murder in the first degree, they could find him guilty of second degree, or manslaughter, or not guilty. The judgment and the order denying the new trial are affirmed. Under Pen. Code 1895, §§ 2254, 2325, 2278, and 2327, there is nothing for this court to do beyond rendering the judgment cf affirmance. If, by reason of the stay caused by the appeal, the time set for execution has passed before this decision is made, the further proceedings are to be conducted in the district court. Affirmed. PEMBERTON, C. J., and HUNT, J., concur. 14 Federal ajstd State Criminal Eeporter, Yol, L Supreme Court ot Kansas. (Filed December 7, 1895.) CITY OP BUELINGTON v. STOOKWELL. Jtjbisdiction — Misdemeanor. A judgment of the district court imposing upon the defendant a fine and costs for the violation of a city ordinance is a conviction for a misdemeanor, vrithin the meaning of section 9 of chapter 96, Sess. Laws 1895, conferring jurisdiction upon the courts of appeals. Appeal from a judgment convicting defendant of violation of an ordinance of the city of Burlington. G-. E. Manchester, for appellant. S. D. Weaver, for appellee. MAETIN, 0. J. — The defendant was convicted in the police court of the city- of Burlington, under an ordinance, for keeping swine within the city in such manner as to constitute a nuisance. He appealed to the district court, and was again convicted, and was adjudged to pay a fine of five dollars and the costs of prose- cution, taxed at $117.38. He then appealed to this court. Soon after the creation of the courts of appeals, the case was certified to the court for the Southern department. Eastern division. After- wards, on August 6, 1895, that court returned the case here, hold- ing that it had no jurisdiction. 1 Kan. App. ; 41 Pac. 221. Section 9 of the act creating the courts of appeals, being chapter 96, Sess. Laws 1895, conferred upon them exclusive jurisdiction "in all cases of appeal from convictions for misdemeanors in the district and other courts of record." We think that the word "misdemeanor" was here used by the legislature in its general sense, and not in the particular one employed in classifying of- fenses under the laws of the state in article 1 of the Code of Grim- inal Procedure. Bouvier says this term is used to express every offense inferior to felony punishable by indictment or by particular described proceedings ; and Blaokstone says that in common usage State v. Zimmerman. 15 the word "crime" is made to denote offenses of a deeper and more ; atrocious dye, while small faults and omissions, of less conse- quence, are comprised under the gentler name of "misdemeanors." Violations of valid city ordinances are certainly offenses, although the laws of the state do not directly prescribe a punishment, which is a requirement of the definition of that word in section 2 of the^ Criminal Code. These offenses against a city are not crimes or felonies, but are commonly classed as misdemeanors, and the pro- cedure for the enforcement of city ordinances is criminal in its nature. A review must be sought by the .defendant by appeal. A finding in his favor ends the case, as to him, beyond the right of appeal by the city, and the other incidents of a criminal trial usually follow. City of Burlington v. James, 17 Kan. 221, 222, and cases cited ; In re Eolfs, 30 Kan. 758, 761 ; 1 Pac. 523. A main purpose of the creation of the courts of appeals was to aid in the disposition of the cases brought up from the lower courts for review, which had accumulated to an extent disproportioned to the working capacity of the existing judicial force. Those parts of the act conferring jurisdiction on tliese new tribunals ouglit, therefore, to be constructed liberally, with a view to promote the object in view. From the general tenor of the act as to criminal cases, it seems manifest that the legislature intended to leave for this court only felonies and appeals taken by the state. This case will therefore be recertified to the proper court of appeals. All the justices concurring. Court of Appeals of Kansas, Southern Department^ E. D. (Filed December 4, 1895.) STATE V. ZIMMERMAN. 1. Witness— Cross examination. It is error to permit a witness to be examined on cross examination, in regard to matters collateral to the main issue, and whicb have not beea touched upon in the direct examination of the witness. 16 Federal and State Criminal Eepobtee, Yol. I. 2. Witness— Cbedibilitt—Contbadictokt statements. Where a witness is examined upon his cross examination, with regard to matters which are immaterial to the issue in the case, the parties so examin- ing the witness is bound by his answer, and cannot afterwards be permitted to introduce testimony in rebuttal to contradict such statements of the ■witness. Appeal from a jadgment, adjudging defendant guilty of assault and battery. Fuller & Eandolph and J. D. McGleverty, for appellant. W. H. Morris, for the state. COLE, J. — The defendant was convicted in the district court of Crawford county of an assault and battery alleged to have been committed on one Willard Kimball. He appeals to this court upon the ground principally that the trial court permitted the in- troduction of certain incompetent evidence on the part of the state over the objection of the defendant, the admission of which was prejudicial to the defendant's rights. The first objection raised by the defendant was to the admission of the details of the assault as related by the prosecuting witness, and the testimony of Dr. Cole with reference to the physical condition of the prosecuting witness shortly after the assault. It appears that the actual assault was committed by two sons of the defendant, and it was not claimed by the state that this defendent participated therein, but it was claimed that he was present, and consented thereto, and abetted his sons in the commission thereof The defendant now claims that the evidence above i^eferred to was incompetent, for the reason that the assault was admitted, and that the evidence of the details, as well as of the condition of the defendant after the commission thereof, could only have a tendency to prejudice the jury against him. This position is not correct. The defendant had entered a plea of not guilty, and the record nowhere discloses that any admission was made that an assault had been committed upon the prosecuting witness. It was therefore incumbent upon the state to prove every material allegation of the complaint, and it was perfectly proper for the court to admit testimony tending to prove the condition of the defendant as showing the gravity of the ofiEense. State v. Zimmerman. 17 The next objection which is arged by the defendant is that the court permitted the state to introduce upon rebuttal the evidence of John Sweeny and William Getty tending to prove that the defendant was present as stated by the prosecuting witness. It is claimed by the defendant that this was evidence in chief, and ought not to have been admitted at the time it was, over his objec- tion. The order of proof is to a great extent a matter discretion with the trial court. In this case, however, these two witnesses were not introduced for the purpose alleged by the defendant. The defendant was a witness in his own benalf, and testified that he had not seen his two sons who committed the assault from some time in the morning until supper time on the day in which the assault was committed, and the testimony of the witness Sweeny and the witness Gretty tended to establish the fact that he saw and conversed with the two sons a short time prior to the commission of the assault. The fact that this evidence also tended to prove that defendant was present when the assault was committed could not make it incompetent for the purpose for which it was oHered. The next objection is that the witness William Cochran was asked upon cross-examination whether he had not stated that the Zimmerman boys had said at supper the evening of the day of the assault that they had pounded Willard Kimball, and whether he did not tell one Henry Bales that he (the witness) and the defend- ant stood by and saw all of the fight. The defendant claims that these questions elicited evidence which was neither relevant nor competent, but we cannot agree with the position in this regard. The witness William Cochran had testified upon direct examina- tion that he was present at the house of the defendant lipon the evening of the assault during . the whole of the time when the family were having supper, and that during said time the two sons of the defendant who committed the assault came in and sat down to supper, but that no conversation took place as to the assault at any time during the evening. He had also testified upon his direct examination that the defendant and himself were at another place than that where the assault was committed at the time when it was committed. It was therefore competent to ask Fed. Cbim. Kbp., Vol. I.— 3 18 Federal and State Criminal Reporter, Vol. I. him upon cross-examination if he had not made statements of a different character outside of court. We come now to what seems the most serious objection in this case. The defendant produced as a witness in his behalf one Frank Cochran, and his testimony upon his direct examination was directed wholly to the details of a trip taken by himself and the defendant upon the day of the assault to the town of Hepler, from which place the witness testified they returned about six o'clock. Upon cross-examination he was asked if he did not tell Mr. Perkey that his brother, William Cochran, had told him that he, Willam Cochran, and the defendant, were present and wit- nessed the assault, and upon being recalled for further cross-ex- amination he was asked if he did not tell Oscar Long the same in substance. These questions were objected to by the defendant at the time, and we can see no reason why the witness was permitted to answer them. The evidence thus ehcited was not material to the assault, and ought not to have been permitted. In connection with this the defendant further complains that the state was .per- mitted upon rebuttal to introduce over his objection the evidence of Mr. Perkey and Oscar Long to contradict the testimony given by Frank Cochran in answer to the question above referred to. The principle is so well settled as to have become elementary in its nature that a party is bound by the answers made upon cross- examination on matters not material to the issue, and cannot be permitted to introduce evidence for the purpose of contradicting testimony of that character. The court erred in admitting the testimony of the witnesses Perkey and Long, and under all the evidence in this case we are of the opinion that such error was prejudicial to the rights of the defendant. The defendant further complains that the charge of the court to the jury was not suiSciently full for a criminal case. While we are of the opinion that the court might have been more specific, yet the defendant is in no position te complain, as he might have presented proper instruction of the kind desired for the court to give; and where this is, not done we cannot presume that the rights of the defendant were prejudiced when the charge which was given correctly stated the law. For the error in admitting the testimony of the witnesses Perkey and Long, as well as per- People v. Ward 19 raitting the witness Frank Cochran to testify upon immaterial matters upon cross-examination, the judgment of the lower court must be reversed, and the cause remanded for a new trial. It is so ordered. All the judges concurring. Supreme Court of California. (Filed December 10, 1895.) PEOPLE V. WARD. 1. Indictment — BRrBBRT. Under sections 950 and 952 of the Penal Code, an indictment, which charges that defendant did give a bribe to a certain supervisor, with intent to corruptly influence him in a certain matter, is not sufficient. ■ 2. Same. An indictment is good if it alleges all the facts or acts necessary to con- stitute the particular offense charged, in the language used by the legislar ture in defining it. 3. Same. An indictment for bribery should aver that the defendant gave some- thing of value or advantage, present or prospective, or some promise or undertaking, or did some act, described by the statute as constituting the offense. A mere use of the language of section 165 of the Penal Code, which prescribes the punishment, is not charging the offense "in the words of the statute defining it." Appeal from a judgment adjudging defendant guilty of giving a bribe. W. M. Gribson and J. G. Swinnerton, for appellant i W. F. Fitzgerald, Atty. Gen., for the People. McFARL AND, J. — The appellant was convicted of the "crime of giving a bribe," and appeals from the judgment, and from an order denying a motion for a new trial. The appellant demurred to the indictment upon the ground that it does not substantially comply with the requirements of sections 950 and 952 of the 20 Federal and State Criminal Reporter, Vol. I. Penal Code. His demurrer was overruled, and we think that the court erred in overruling it. The indictment charges that the appellant did willfully, feloniously, etc., "give a bribe," to a cer- tain member of the board of supervisors, with intent to corruptly influence him in a certain matter ; but jt does not contain any averment of any act of appellant which brings his alleged conduct within the legal meaning of bribery. The indictment would be the same if it had merely charged generally that defendant " bribed " a certain person to do a certain thing. This would be the averment of a legal conclusion only, and as bad as a mere general averment that a defendant " murdered " somebody or " stole " something. Section 950 of the Penal Code provides that the indictment shall contain "a statement of the acts constituting the offense in ordinary and concise language " ; and section 952 provides that " it must be direct and certain as it regards * * * * (3) the particular circumstances of the offense charged when they are necessary to constitute a complete offense." Sub- division 6 of section, 7 of the Penal Code- provides as follows: "The word 'bribe' signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his action, vote, or opinion, in any public or official capacity ; " and section 165 pro- vides that " every person who gives or offers a bribe " to one of several officers named, with intent, etc., is punishable in a certain manner. And counsel for respondents contend that the indict- ment is good because, as they say, "it follows the language of the statute." This court has said several times, in general terms, that an indictment is sufficient if it substantially follows the language of the statute. This is true generally, but not univer- sally. It is not true of a case where "the particular circumstances * * * are necessary to constitute a complete offense." The rule especially applies to purely statutory offenses. Bat what does the rule mean ? It means simply this: that when the statute defines or describes the acts which shall constitute a par- ticular offense, it is sufficient, in an indictment, to describe those acts in the language employed in the statute, — applying them, of course, concretely to the person charged. One of the earliest People v. Wabd. '21 cases on the subject is People v. Parsons, 6 Gal. 487. In that (jase the indictment was for perjury and left out the word "felon- iously" ; and it was held good because, in the statutory definition of the crime of perjury, the word "feloniously" was not used. In its opinion the court said: "The indictment in this cause charged the ofiEense in the words of the statute defining it. * * * * Time, place and circumstance are stated with cer- tainty, and every information is given to the defendant which is necessary to enable him to answer the charge." There the words of the statute defining the ofiEense were used in the indictment. People V. Shaber, 32 Gal. 36, is another early case. There the court in sustaining the indictment said : "The indictment charges the ofiEenses in the very terms used in defining it in the fifty- eighth section of the crimes act." And even in that case Sander- son, J., dissented, saying that it was a familiar principle in all pleadings that " the facts are to be stated, to the exclusion of conclusions of law to be drawn therefrom." And in the cases following these earlier ones it will be found that the rule declared on the subject is simply that an indictment is good if it alleges all the facts or acts necessary to constitute the particular offense charged, in the language used by the legislature in defining it. For instance, the meaning of the rule is fullj' stated by Paterson, J., in People v. Fowler, 88 Gal. 138; 25 Pac. 1110, as follows: "The information follows the language of the statute, and is suf- ficient. It alleges all the acts and facts which the legislature has said shall constitute the ofiEense." The only two cases cited where bribery was involved are People v. Edson, 68 Gal. 549; 10 Pac. 192; and People v. Mark- ham, 64 GaL 157; 30 Pac. 620. In the Edson case the language of the indictment is not given, but the opinion refers to the Mark- ham case as authority ; and in the Markham case the indictment charged that the defendant, at a certain time and place, being a police officer, etc., did "agree to receive a biibe, to wit, fifteen standard dollars, lawful coin of the United States of America." Therefore, assuming the general rule, as above explained, to be that it is sufficient to allege an ofiEense in the language of the statute, the ofiEense charged in the case at bar is not alleged in the language of the statute in the indictment under review. It does 22 Federal and State Criminal Eeporter, Vol. I. not allege "the acts and facts which the legislature has said shall constitute the offense." The material acts or facts constituting the legislative definition of bribery are the giving to a public ofiicer something "of value, or advantage, present, or prospective," or giving "any promise" or entering into any "undertaking" to give something of value or advantage. There is no averment that appellant gave the supervisor anything of value, or of advan- tage, or that he gave anything at all, or that the thing was of present or prospective advantage, or that it was a promise to do something, or an undertaking of some kind which was, or would ' be, beneficial to the supervisor. As said by counsel for appel- lant : " The defendant is not informed whether the people will prove that he gave money, a promise of employment, a promise of political influence, a contract, instruction, entertainment, or any other of the many things which might constitute a bribe. It is true that the rules of the common law with respect to crimi- nal pleading have been greatly relaxed in this state by legislation and judicial decision, and many of the formalities and particulari- ties formerly deemed necessary are not now required ; but the fundamental rule that an indictment must state with reasonable certainty what the defendant is charged with, so as " to enable him to answer the charge," has not been abrogated either by legislature or court. People v. Lee (Cal.), 40 Pac. 754. An indictment for bribery should aver that the defendant gave some- thing of value or advantage, present or prospective, or some promise or undertaking, or did some act, described by the statute as constituting the offense. A mere use of the language of sec- tion 165, which prescribes the punishment, is not charging the offense "in the words of the statute defining it." The judgment and order appealed from are reversed, and the cause is remanded, with instructions to sustain the demurrer to the indictment. We concur : TEMPLE, J.; HENSHAW, J. State v. Bannon. 23 Supreme Court of Oregon. (Filed December 23, 1895.) THE STATE ex rel. IDLEMAN, Attorney General, v. BAN. "NOK Attorneys— Disbarment. Any information for the removal of an attorney on the ground of his having been convicted of a misdemeanor involving moral turpitude, which simply charges that he has been convicted of a misdemeanor, but does not allege that any moral turpitude was involved in the acts constituting such crime, is insufficient. Original informarion in the supreme court by the state of Oregon on the relation of 0. M. Idleman, attorney general, to disbar P. J. Bannon, an attorney at law, Defendant demurs to the informa- tion. Demurrer sustained. C. M. Idleman, for relator. B. F. Dowell and P. J. Bannon, for deft PER CURIAM. — This is a proceeding to disbar an attorney, instituted by the state upon the relation of the attorney general. The information states, in substance, that P. J. Bannon, an at- torney of this court, was indicted, tried, and convicted in the dis- trict court of the United States for the district of Oregon of the crime of conspiracy, in confederating and combining with others to commit an ofiense' against the United States by unlawfully aiding and abetting the landing in the United States of Chinese laborers not lawfully entitled to enter therein. The defendant, upon being cited to appear, demurred to the information for the reason that it did not state that the crime of which he was con- victed was a felony or misdemeanor involving moral turpitude. The statute authorizes this court to remove or suspend an at- torney upon his being convicted of any felony, or of a misde- meanor involving moral turpitude. Hill's Ann. Laws, Or. § 1047. The information charges the defendant with having been con- 24 Federal and State Criminal Eeporter, Yol. L victed of a misdemeanor, bat does not state that any moral turpi- tude was involved in the unlawful agreement, or in any act of the conspirators resulting therefrom. It is not every misdemeanor that authorizes the suspension or removal of an attorney, but those only that involve moral turpitude. This is a material aver- ment in pleading the conviction of a misdemeanor, without which the information fails to state a cause sufficient to give this court jurisdiction, and hence the demurrer must be sustained. Supreme Court of Michigan. (December 17, 1895.) PEOPLE V VAN DAM. 1. Evidence— BuRSLARY. On the trial of an information for breaking into a store in the night, with intent to commit larceny, bottles of peppermint, brought from the store at the time of the trial, are admissible to identify similar bottles fo und ia defendant's house after the burglary. 2. Bttrqlakt — ADjoraiNG dwelling. Where two stores which have a stairway between them, leading up from the street to the second story and descending at the rear, and the second story of each of which is occupied as a dwelling and is accessible only from the stairway, having no entrance from the stores, are within the pro- visions of section 9134 of 3 How. Ann. St. 3. Evidence — Good character. Evidence of good character is admissible, not only in a case where doubt otherwise exists, but may be offered for the purpose of creating a doubt. Appeal from a judgment convicting defendant of burglary and larceny. Nathan P. Allen, for appellant. Fred. A. Maynard, Atty. Gen., and Alfred Wolcott, Pros. Atty., for the People. People v. Van Dam. 25 Long, J. — The information contains two counts, — one for break- ing and entering the store of Hiram 0. Luce in the night time, with intent to commit the crime of larceny, said store not adjoin- ing to or occupied as a dwelling house ; and the other for the lar- ceny of goods of more than $25 in value. Eespondent was con- victed under both counts, and the case comes to this court on ex- ceptions before sentence. The store burglarized is situated on the corner of East and Fifth streets, in the city of Grand Rapids, and is a two-story struc- ture, consisting of two stores. A flight of stairs leads up from the street in front, and between the two stores, and a flight leads downward between the stores at the rear. Over the stores rooms are fitted up, in which Norman B. Briggs, the clerk of Mr. Luce, lives with his family. There are five rooms, and they are entered from the two stairways. From the record, there seems to be no entrance from the store to these rooms, and the only means of getting from the stores to the rooms is to pass out, either upon the street, or into the back yard, and thence up one of the stairways. The respondent resided some three-quarters of a mile from these stores. He was employed in a furniture factory, and had been so employed for a number of years, was a married man, having a wife and three children, and lived in his own house. The burg- lary was committed on the night of October 7, 1894. On the 2d of November, following, some suspicion having attached to him, a warrant was taken out and placed in the hands of detectives, who went to his house to make a search for the goods taken. Arriving there, they found the respondent was not at home, and told his wife their desire to make the search, and were permitted to do so. The house below consisted of a front room, a dining room, pantry, and bed room. A stairway led from the front room up stairs, where there were two rooms and a closet The upper rooms were plastered, but contained nothing but a work bench and carvers' tools, saws, chisels, etc. The respondent is a carver. The officers then entered the closet over the stairs, and found two boards that had been sawed. Taking these off, they found many articles stored away under the floor of the closet, and on top of the lath and plastering of the rooms below. They found some Fed. CRra. Rep., Vol. I. — 1 26 Federal and State Criminal Ebporteb, Vol. I. thirty or thirty-five pounds of coffee, tobacco, canned goods, tea, ■cigars, pipes, and essence of peppermeat.' Other tobaccos, marked ■" Spearhead" and "Tiger," were found. The articles were in two different bags. The officers testified that, soon after discovering these articles, the respondent came home and wanted to know what they were doing there. They told him they were searching for stolen goods. He told them that he had none there, and that they could search his house. They then told him that they had searched the house and found the goods, and brought out the bags and showed them to him, and told him his wife had said that he brought them home. Respondent then asserted that two men had rented these rooms up stairs. They told him that his wife had aaid she asked him who helped him to get these, and he stated to 'her that if he told her she would not know who it was. The ofiicers took the respondent into custody, and upon arriving at police headquarters searched him, and found in his pockets a half package of Tiger tobacco, like that found in the closet, when he said he had permission to get some every time he wanted to use it. The goods found under the closet floor were identified by Mr. Luce and Mr. Briggs as the property of Mr. Luce, taken from the store. The officers testified, further, that, in the search for these goods, they found a secret staircase from the closet, which could only be found by pulling off the boards. On the trial the people offered in evidence the articles which Luce and Briggs identified, and also the half package of tobacco found upon the respondent when arrested ; also, the two bottles of peppermint essence which were left in the store. The testi- mony tended to show that these were of like character and in like condition as tho.se found concealed at respondent's house. This was objected to and admitted, and upon this is based the first as- signment of error. We think this was competent evidence. Mr. Luce testified that the peppermint essence had been in his store three or four years ; that that found at respondent's house had been taken from his store. The bottles were offered in evidence for the purpose of identifying those found with respondent, and all of them appear to have been upon the shelves for a length of time, having some marks upon them, and covered with fly-specks. We think the testimony does not bear out the statement that they People v. Van Dam. 27 were offered for the purpose of comparing the figures upon the bottles, as each bottle contained the figur.es "10." The court pro- perly permitted the people to put the two bottles in evidence for the purpose of showing their general appearance. 2. It is contended that the stores were adjoining to or occupied with a dwelling house. We think the testimony fails to show that fact, within the meaning of section 9134, 2 How. Ann. St.' People V. Nolan, 22 Mich. 228. 3. The principal question raised relate to the charge of the court. We need discuss but one, as we think the other objections are •devoid of merit The court charged the jury as follows: ''Now, there has been considerable testimony put into this case as to the good character of tliis young man. Every man who comes before you to be tried is presumed to have a good character, without any evidence whatever in the case; and it is for you to say how much that presumption of good character has been strengthened, if strengthened at all, by some nine or ten witnesses who have been put upon the stand before you. Evidence of good character is, in some cases, an important factor,' — that is, that which amounts to evidence of good character. If a mati residing in a community has always borne the reputation of being a^ood man, and good, respectable citizens come in and swear that he has always held a good character, and when, in regard to the offense charged, there seems to be an even, or nearly an even, conflict as to whether he is, or whether he is not, guilty, then that good character, put into the balance, ought to have a great deal of weight in such a case. Oftentimes it would be conclusive." This charge was erroneous and misleading. Proof of good cliaracter is to have greater weight than suggested by this charge. It is applicable in all cases where crime is charged. It is not to be limited to cases where there is an even conflict as to whether the respondent is or is not guilty. As was said by this court, in People v. Jassino (Mich.) 59 N. W. 230: "Evidence of good character is admissible, not only in a case where doubt otherwise exists, but may be offered for the purpose ' The statute provides that any person who breaks and enters in the night any office, s^iop, or store "not adjoining to or occupied with a dwelling house." with intent to commit larceny or any felony, shall be imprisoned in the state prison for not more than fifteen years. 28 Federal and State Criminal Eeporter, Vol. L of creating a doubt" People v. Laird (Mich.) 60 N. W. 457; People V. Garbutt, 17 Mich. 9; Hamilton v. People, 29 Mich. 195. The conviction must be set aside, and a new trial granted. The other justices concurred. Supreme Court of Michigan. (Filed December 17, 1895.) PEOPLE V. BENNETT. 1. Criminal law — Complaint. A ■written complaint in a prosecution before a justice of the peace is unnecessary. 2. Same— Wabbant— Local option law. A warrant for the violation of the local option law (act No. 207 of 1889), Issued by a justice of the peace, need not recite the evidence showing that such law was in force in the county, nor set forth the evidence showing that defendant was not a druggist, and therefore within the exception of the statute. 3. Same — Hired witness. Where the defendant's arrest is the outgrowth of a purchase by the com- plainant with that object in view, it is unnecessary for the court to do ' more than inform the jnry that such facts, if proved, are to be considered in determining the credit due to his testimony. 4. Same — Instruction— Waiver. Where the reading of the record of the board of supervisors has been waived by defendant, he cannot complain on appeal from conviction under act No. 207 of 1889, of instruction that the local option law was in force in that county. Appeal from a judgment convicting defendant under the local option law. Guy M. Chester, Pros. Atty., for the people. Timothy E. Dibell, for defendant. HOOKEB, J. — The defendant appeals from a conviction under the local option law. A motion was made before the justice to People v. Bennett. 29 quash the proceedings for want of jurisdiction, and it was renewed in the circuit. It is based upon many alleged defects, but reliance appears to be placed more especially upon the claim that tlie com- plaint and warrant do not state an offense, and that the justice did not have certain evidence before him, previous to the issue of the warrant The essential evidence said to have been wanting is^ (1) Evidence that the local option law was in force in Hillsdale county at the time of the alleged offense ; (2) competent evidence that the defendant was not a druggist or pharmacist, and therefore within the exception to the law. A written complaint was taken, though it was unnecessary. People v. Berry (filed at the present term) 65 N". W. 98. If it was insufficient, it is no worse than no written complaint, unless it precludes the inference that a valid oral complaint was made. Ordinarily, where no formal written complaint is taken, the complaint amounts to little, if any, more than information to the justice that, in the opinion of the party complaining, an offense has been committed, taken in conjunction with his subsequent statements made upon oath in relation to the details thereof. We may reasonably suppose that such complaint is rarely so complete as to contain all of the statements necessary to prove an offense. It may be that the witness has not knowl- edge of all, and that his testimony must be supplemented by that of others, to cover all of the points that should be shown to justify the issue of the warrant. This may be supplied by an examina- tion of the complainant and others upon oath. We may therefore dismiss the complaint with remark that it was unneccessary, with- out taking the trouble to inquire as to its formal sufficiency were a written complaint required. The warrant recites the fact of the making of complaint in writing, and the examination on oath of the complainant. It is attacked — First, as not stating an offense ; second, as showing affirmatively that it was improvidently issued, because it does not show that the justice had evidence before him that the local option act was in force, and that defendant was not a druggist or reg- istered pharmacist This warrant charges that the defendant kept a saloon in Jonesville village at a time alleged, where spiritious and intoxicating liquors were sold, stored for sale, given away, and furnished as a beverage. It negatives a possible claim that 30 Federal and State Criminal Reporter, Vol. T. they were within the exception of the act as to the purpose for which they were kept and sold. It alleges that the defendant was not a druggist or registered pharmacist within the law, but was a keeper in violation of Act No. 207 of the Laws of 1889, and of a preamble and resolution and order of prohibition adopted by the board of supervisors of Hillsdale county pursuant to said act. It recites the fact that said complaint was made on oath, and in writing, and that the complainant was examined upon oath. The important point made upon the sufficiency of the warrant is that it fails to show that the justice had evidence before him that the local option law was in force. It is urged that it does not show that the complainant testified to it, and that, if it did, it would be no better, because such testimooy is not the kind of evidence required, the law providing how the fact shall be proved. The statute does not require that a warrant shall recite the evidence taken, nor does it say that it shall name all witnesses examined or mention the documentary evidence placed before the magistrate during his investigation, to determine whether an offense has' been committed. He takes such evidence as in his judgment bears upon the question; and no case has been cited where the circuit court has inquired whether the evidence was of the highest char- acter, or whether it was admissible at all. Moreover, there is nothing upon this record to show that duly-certified copies of the proceedings were not before the magistrate. They may have been produced by the complainant, or by the prosecuting attorney, if he had anything to do with the case. It was not necessary to load the warrant down with statements of this kind, and we do not agree with the counsel that the record shows that the propei* evidence could not have been before the justice. Presumably it was, or he would not have issued his warrant Again, when we come to the examination, there is nothing upon this record to show that this evidence was not offered, if it is competent, upon a trial or motion to quash, for the circuit court to review the evidence taken by the justice to ascertain whether he had legal evidence of of each material fact, which we need not consider. What has been said is quite as applicable to the question relat- ing to the failure to allege or show that the defendant was not within the exception of the statute. We cannot say but that there People v. Bennett. 31 was direct and positive evidence that the defendant was neither druggist or registered pharmacist, and we are not prepared to say that a justice might not infer the fact from the situation and character of the place where the liquor was sold, and the nature of the transaction. The defendant's arrest is said to have been the outgrowth of a purchase by the complainant with that object in view, and re- quests to charge were based upon that fact, which the court did not give ; but we think that he covered the subject. It was per- haps proper for the counsel to argue to the jury that the com- plainant was a " hired witness " and "a spy," and that "he was willing to go and did ask the defendant to violate the law for the sole and express purpose of making a case and instituting a criminal prosecution against him"; but it was unnecessary for the court to do more than to inform the jury that such facts, if proved, were to be considered in determining the credit due to his testimony. Similar instructions in favor of the prosecution and against the defendant, had the facts been reversed, would have been distasteful to counsel, and erroneous, if the facts were open to question. The record of the board of supervisors was produced and re- ceived in evidence. The reading was waived by counsel. He now insists that it was error to instruct the jury that act No. 207 was in force in the county. As defendant has not seen fit to print, this evidence, we cannot tell whether the court erred in this instruc- tion or not. Presumably he read this evidence, and decided that it was sufficient proof. It was for the court to determine that question, and for the jury to follow his direction in regard to it. Hence it was immaterial whether the proceedings were read audi- bly in the presence of the jury or not "We think there is no occasion to discuss the case further. We think no error, and the judgment will be affirmed. The other justices concurred. 32 Federal and State Criminal Reporter, Vol. L Supreme Court of Xichigan. (Filed December 17, 1895.) PEOPLE V. COX. 1. CkIMIITAI, law — FOKMEB ADJTTDICATION— Bab. A person cannot be punished for the same transgression under section 1997a and section 9386 of 3 How. Ann. St. 3. Sasie. A prosecution on a charge laid at a date anterior to the former indict- ment is barred by a conviction upon such former indictment, where the offense charged is a continuing one. Appeal from a judgment convicting defendknt of keeping a house of ill fame. Joseph M. Hambitzer, for appellant. A. T. Streeter, Pros. Atty., for the People. HOOKER, J.— Section 1997a, 3 How. Ann. St, declares that ^'all keepers of bawdy houses, or houses for the resort of prosti- tutes, shall be deemed disorderly persons ; " and by the succeed- ing section the first offense is made punishable by a fine of $50 and cost of prosecution, or by imprisonment in the county jail or Detroit house of correction not exceeding thirty days, or the per- son convicted may be required to give sureties for good behavior for the period of three months. Section 9286, id., provides that *'every person who shall keep a house of ill-fame, resorted to for the purposes of prostitution or lewdness, and every person who shall solicit, or in any manner induce a female to enter such house for the purpose of becoming a prostitute, or shall by force, fraud, or deceit, or in any like manner procure a female to enter such house for the purpose of prostitution, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by impris- onment in the state prison not more than five years, or in the county jail not more than one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment, in the People v. Cox. 33 discretion of the court." The defendant appeals from a conviction under the latter section, upon an information which charges that " heretofore, to wit, on the 1st day of December, A. D. 1894, and on divers other days and times between that day and the 1st day of January, 1895, * * * he unlawfully and feloniously did keep and maintain a certain house of ill-fame, resorted to for the purpose of prostitution and lewdness." To this information a plea of former conviction was interposed, setting forth the warrant upon which said conviction was had, and stating that in that pro- ceeding he was prosecuted for keeping the same house, and that it was a continuation of the same ofiEense for which he is now prose- cuted. The warrant mentioned shows that he was proceeded against as a disorderly person, under the section first mentioned, the charge being " that heretofore, to wit, on the 23d day of March, A. D. 1895, ana for ten days preceding that day, at the township of Duncan, in said county, Ira Cox, of said township of Duncan, has been and is a disorderly person, within the meaning of section 1 of act No. 264 of the Public Acts of Michigan of 1889, being section 1997a of Howell's Annotated Statutes of the State of Michigan, for that the said Ira Cox, at the township of Duncan, in said county, during and at times aforesaid, was the keeper of a house for the resort of prostitutes." It will be noticed that the present prosecution is for an alleged offense anterior to that upon which he was first convicted. Two questions are presented for our consideration : (I) Whether a continuous keeping of a house of ill-fame, resorted to for the purpose of prostitution,, etc., is a continuing offense, so that a conviction bars another prosecution for such keeping previous to the time of the indictment upon which a conviction has been had. (2) If so, whether a conviction, under the disprderly act of keeping a house for the resort of pros- titutes, bars a prosecution for keeping a house of ill-fame, resorted to for the purposes of prostitution, at a time previous to the first indictment. To establish guilt under the disorderly act, it is necessary to show that the house is kept for the resort of prostitutes. Under the other act, the house must be resorted to for purposes of prostitution and lewdness by men or women, or both, and it must be a house of ill- Fkd. Ckim. Rep., Vol. I — 5 84 Federal and State Criminal Eefortee, Vol. I. fame. The first falls short of the second, as it may or may not be a house of ill-fame, and acts of prostitution may or may not be committed there. The act implies that it shall be a rendezvous for prostitutes, — a place which they visit or haunt (see Webst. Diet " Eesort "); and it may be open to question whether the dis- orderly act would apply to a person who kept a house where prostitutes merely made it their permanent residence. But such a person might be punishable under the other statute, if the house was a house of ill- fame, and was resorted to (i. e., visited) for the purpose of prostitution and lewdness. These acts are made crim- inal under separate statutes, but they are of the same nature. The act of keeping a disorderly house is the gravamen of the offense in each. A given state of facts may permit an election by the prosecutor as to which of the two offenses he will charge ; but in this case, as keeping a disorderly house is a vital incident under both statutes, he should not be permitted to bring successive charges under both acts for one and the same transgression. The lesser offense is necessarily included in the greater, and " as the government cannot begin with the highest, and then go down step by step, bringing the man into jeopardy for every dereliction included therein, neither can it begin with the lowest and ascend to the highest, with precisely the same result" We think, there- fore, that one should not be prosecuted under both statutes for one and the same unlawful act It remains to inquire whether this doctrine can be applied in this case, in view of the fact that the charge in this case covers time anterior to the charge in the former. Can the continuous keeping of a house under either of these statutes ,be treated as more than one offense? Technically speaking, when one engages in a business, he cannot be said to engage a second time in the same venture. He may engage in a similar business elsewhere, or upon another occasion, after bringing the first venture to a close. The same may be said about keeping a saloon or brothel. So long as it is uninterrupted, it is really but one act of keeping. Ta hold otherwise at once raises the question of duration of the offense. Shall the same be measured by years, months, weeks, day.s, hours, or by still shorter intervals? On the other hand, is tliere no difference between the offender of a day, and one whose People v. Cox. 35 business has run for a year? And, further, after one has incurred and suSered one conviction, may he continue the unlawful act ad libitum, safe from further prosecution, by reason of the former conviction? The injustice ©f dividing a continuous act into as many offenses as there are days iu the period of its continuation was early seen and asserted. The principle was applied in a case where four charges were made of infractions of the law upon one and the same day, in the case of Crepps v. Durden, Cowp. 640. That case arose under a statute prohibiting labor uiaon the Lord's day, and it was held that a conviction upon proof that a baker sold a hot loaf upon that day was a bar to prosecutions for selling other loaves upon the same day, the court saying that: " There is no idea conveyed by the act itself that, if a tailor sews on the Lord's day, every stitch is a separate offense. * * * There can be but one offense on one and the same day." In re Snow, 120 U. S. 282 ; 7 Sup. Ct. 556, involved the question before us; and it was held that the offense of illegal cohabitation as husband and wife was a " continuous offense, having duration, and not an offense consisting of an isolated act." The court refused to per- mit more than one conviction for such act, and called attention to the great injustice of cumulative penalties, which would be possi- ble under the practice insisted upon by the prosecutor, and said, " It is to prevent such an application of the penal laws that the rule has obtained that a continuing offense of the character of the one in this case can be committed but once, for the purposes of indictment or prosecution, prior to the time the prosecution is in- stituted." Again it is said, alluding to such cumulative sentences: " No case has been cited where what has been done in the present case has been held I'awful. But the uniform current of authority is to the contrary, both in England and in the United States ; " citing the case of Crepps v. Durden, supra. A number of the American cases are cited in the opinion, which it is unnecessary to repeat here. See, also, Com. v. Eobinson, 126 Mass. 259, which is thought to be in harmony with the rule laid down in the case of Snow. In re Neilson, 131 U. S. 176 ; 9 Sup. Ct. 672, is another case in point, and is decisive of both questions in the case. The case of People v. Gault (Mich.) 62 N. W. 724, is distinguishable from this case, as it arose under a statute which provided that the 36 Federal and Stave Criminal Eeporter, Yol. I. transactions of each day should be a separate offense. It is, in our opinion, well settled that a prosecution upon a charge laid at a date anterior to a fornaer indictment is, in such a case as this, barred by a conviction upon such former indictment; where the offense charged is a continuing one. The defendant therefore had the right to go to the jury upon the q^uestion of fact raised by the plea at bar, and the conviction must therefore be set aside, and the respondent discharged. See People v. Jones, -tS Mich. 55i ; 12 N. W. 848. Ordered accordingly. The other justices concurred. Supreme Court of Michigan. (Filed December 17, 1895.) PEOPLE V. GAY. Constitutional law— Unlawpttl discrimination. Act No. 74 of 1893, is not in conflict witli the section of the United States Constitution prohibiting a state from discriminating against the citizens of other states. Appeal from a judgment convicting defendant of violating the act prohibiting the soliciting of insurance for a nonresident with- out a certificate of authority from the insurance commissioner. Frank E. Knappen and Myron H. Beach, for appellant. Alfred S. Frost, Pros. Atty. (B. M. Irish, of counsel), for the People. MONTGOMEEY, J.— By Act No. 74 of the Session Laws of 1893, it was enacted tliat it shall be unlawful for any person or persons, as agent, solicitor, surveyor, broker, or in any other ca- pacity to transact, or to aid in any manner, directly or indirectlyi in the transacting or soliciting within this state any insurance bus- iness for any person, persons, firm, or copartnership who are non- People v. Gay. 37 residents of this state, or for any fire or inland navigation insur- ance company or association not incorporated by the laws of this state, or acting for or in behalf of any person or persons, firm or copartnership, as agent or broker, or in other capacity, or procure or assist to procure a fire or inland marine policy or policies of insurance on property situated in this state, for any nonresident person, persons, firm or copartnership, or for any company or as- sociation, without this state, whether incorporated or not, without the procuring or receiving from the commissioner of insurance the certificate of authority provided for in sectien 23 of an act entitled " An act relative to the organization of fire and marine insurance companies transacting business within this state,'" ap- proved April 3, 1889, as amended. Such certificate of authority shall state the name or names of the person, persons, firm or co- partnership, or the location of the company or association as the case may be, showing the party named in the certificate has com- plied with the laws of this state regulating fire and inland insur- ance, and the name of the duly-appointed attorney in this state on whom process may be served. By section 5 of the act of which the above is amendatory. It is provided : " In any suit brought under this act it shall not be necessary to prove the legal incorporation or association of any corporation or association of individuals, the policies of which have been solicited or issued con- trary to this act. It shall be sufficient to show that the policy of insurance has been solicited or issued, directly or indirectly, by or through the defendant company or association, not authorized to do business in this state." Respondent was charged and convicted in the Kalamazoo cir- cuit court of a violation of this act. He has brought the record here for review on exceptions before sentence. While the record contains numerous assignments of error, we have not been favored with any brief on behalf of the respondent. We have, however, looked through the record, and discovered no error. The. only question meriting discussion is whether the law in question is un- constitutional. It appears from the defendant's requests that it was contended below that the statute contained an unwarranted discrimination against the citizens of other states. It has been repeatedly held that it is within the power of the state to exclude 38 Federal akd State Criminal Reporter, Vol. I. corporations of other states from doing business in this state, ex- cept on such terms as the legislature may see fit to prescribe for the protection of its citizens. Insurance Co. v. Eaymond, 70 Mich. 485; 38 N. W. 474 ; Doyle v. Insurance Co., 94 U. S. 585. This naturally carries with the right to prohibit individuals within this state from acting for such inhibited corporations. People v. Howard, 50 Mich. 239 ; 15 N. W. 101 ; Paul v. Virginia, 8 Wall. 168. But it appears to have been insisted below that, while it may be competent to prohibit corporations from doing business within this state, the legislature cannot deny the right to individ- uals. But an answer to this is that there is no discrimination against individuals of other states under the insurance laws of this state. See State v, Ackerman, 51 Ohio St. 163 ; 37 N. E. 828 ; State v. Stone (Mo. Supp.) 24 S. W. 164. Conviction af- firmed, and the court is instructed to proceed to sentence. The other justices concurred. United States Supreme Court. (Filed December 33, 1895 ) MOORE V. UNITED STATES. 1. Indictment — Embezzlement. Where the words charging defendant with being a postofflce employe are material in an indictment which charges, under Act March 3, 1875, the embezzlement of a certain sum of money, belonging to the United States, by defendant, it must be averred that the money embezzled came into his hands by virtue of such employment. 3. Same. If the words of such indictment charging defendant's employment, are treated as surplusage, the property embezzled must be identified with par- ticularity. In error to the district court of the United States for the south- ern district of Alabaina. MooEE V. United States. 39 Plaintiff in error, late assistant postmaster of the city of Mobile, was indicted and convicted of embezzling certain moneys of th9 United States, to the amovnt of $1,652.59. There were four counts in the indictment, to one of which a demurrer was sustained, and upon two others defendants was ac- quited. The fourth count, upon which he was convicted, charged that " the said George S. Moore, being then and there an assistant, clerk, or employe in or connected with the business or operations of the United States post office in the city of Mobile, in the state of Alabama, did embezzle the sum of sixteen hundred afld fifty- two and 59-100 dollars ($1,652.59), money of the United States, of the value of sixteen hundred and fifty-two and 59-100 dollars ($1,652.59), the said money being the personal property of the United States." Moore, having been sentenced to imprisonment at hard labor, sued out this writ of error. M. D. Wickersham and W. H. Mcintosh, for plaintiff in error. Asst Atty. Gen. Whitney, for the United States. Mr. Justice BROWN delivered the opinion to the court Defendant was indicted under the first section of the act of March 3, 1875, "to punish certain larcencies, and the receivers of stolen goods." (18 St. 479), which enacts "that any person who shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be deemed guilty of felony," etc. The principal assignment of error is to the action of the court in overruling a demurrer to the fourth count of the indictment, which charges, in the words of the statute, that " the said George S. Moore, being then and there an assistant, clerk, or employe in or connected with the business or operations of the United States post office in the city of Mobile, in the state of Alabama, did em- bezzle the sum of , money of the United States, of the value of , the said money being the personal property of the United States." 40 Federal and State Criminal Eeporter, Yol. L Embezzlement is the fraudulent appropriation of property by a person to whom such property has been intrusted, or into whose hands it has lawfully come. It differs from larceny in the fact that the original taking of the property was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking. It is objected to the indictment in this case that there is no direct allegation that defendant was an assistant, clerk, or employe in or connected with the business or operations of the post office at Mobile, that the money of the United States is not identified or described ; and that there is no allegation that it came into the possession of the defendant by virtue of his employment. The act in question has never been interpreted by this court, nor has our attention been called to any case where it has received a construction in this particular, except that of McCann v. U. S., 2 Wyo. 274, decided in the territorial supreme court of Wyoming, in which the allegation was that " McCann * * * at and within the district aforesaid, twenty thousand pounds of sugar * * * of the goods, chattels, and property of the United States of America, then and there being found, then and there feloni- ously and fraudulently did embezzle, steal, and purloin," etc. This allegation was held to be defective in charging a mere legal conclusion, "leaving it impossible to determine whether the of- fense was committed, and the conclusion correct." It was said that the indictment for this offense must set forth the actual fiduci- ary relation and its breach ; that the indictment did not identify the offense on the record, and did not secure the accused in his right to plead at former acquittal or conviction to a second pros- ecution for the offense. It was held that the words "to embezzle" were equivalent to the words "to commit embezzlement," and that a count in the words of the statute was not sufficient ; that "all the ingredients of fact that are elemental to the definition must be alleged, so as to bring the defendant precisely and clearly wiihin the statute. If that can be done by simply following the words of the statute, that will do ; if not, other allegations must be used." The general principle here alluded to has been applied by this court in several cases. U. S. v. Carll, 105 U. S. 611 ; U. S. V. Cooke, 17 Wall. 168; U. S. v. Cruikshank, 92 U. S. 542. Moore v. United States. 41 In the case of U. S. v. Northway, 120 U. S. 328; 7 Sup. Ct 580, the word "embezzle" was recognized as having a settled technical meaning of its own, like the words "steal, take and carry away," as uSed to define the oSense of larceny. In this case the allegation was that the defendant, "as such president and agent " (of a national bank), " then and there had and received in and into his possession certain of moneys and funds of said bank- ing association, * * * and then and there, being in posses- sion of the said " defendant, " as such president and agent afore- said, he, the said " desendant, " then and there * * * wrongly^ unlawfully, and with intent to injare and defraud said banking association, did embezzle and convert to his * * * own use." In respect to this, it was said to be quite clear that the allegation was sufficient, as it distinctly alleged that the moneys and funds- charged to have been embezzled were at the time in the possession of the defendant as president and agent. " This necessarily means," said the court "that they had come into his possession in his official character, so that he held them in trast for the use and benefits of the association. In respect to those funds, the charge against him is that he embezzled them by converting them to his own use. This we think fully and accurately describes the of- fense of embezzlement under the act by an officer and agent of the association." In the case of Claassen v. U. S., 142 U. S. 140; 12 Sup. Ct. 169, an allegation similar in substance and efifect was also held to be- sufficient. The indictment, said the court, "avers that the de- fendant was president of a national banking association ; that by virtue of his office he received and took into his possession certain bonds (fully described), the property of the association ; and that with intent to injure and defraud the association, he em- bezzled the bonds and converted them to his own use. On prin- ciple and precedent, no further averment was requisite to a com- plete and sufficient description of the crime charged." The cases reported from the English courts and from the courts- of the several states have usually arisen under statutes limiting the offense to certain officers, clerks, agents, or servants of individ- uals or corporations; and the rulings that the agency of fiduciary Fed. Crim. Rep., Voi,. I.— 6 42 Federal and State Criminal Reporter, Vol. L relation must be averred, as well as the fact that the money em- bezzled had come into the possession of the prisoner in that capa. <3ity, are not wholly applicable to a statute which extends to every person regardless of his employment, or of the fact that the njoney had come into his possession by virtue of any office or fiduciary relation he happened to occupy. These cases undoubtedly hold, with great uniformity, that the relationship must be averred in the exact terms of the statute, that the property embezzled must be identified with great particularity, and that it must also be averred to have come into the possession of the prisoner by virtue of his fiduciary relation to the owner of the property. Thus, in Com. v. Smart, 6 Gray, 15, it was held that an indict- ment which averred that the defendant " was intrusted " by the owner " with certain property, the same being the subject of lar- ceny " (describing it), " and to deliver the same to" the owner "on demand," and afterwards " refused to deliver said property to said" owner, "and felonionsly did embezzle and fraudulently convert to his own use, the same then and there being demanded of him by said " owner, was fatally defective, by reason of omitting to state the purpose for which the defendant was intrusted with the prop- erty, or what property he fraudulently converted to his own use. So in People v. Allen, 5 Denio, 76, under a statute limiting the oflfense to clerk and servants, it was held that a count charging the defendant with having collected and received certain money as the "agent" of an individual was defective. On the other hand, in Lowenthal v. State, 32 Ala. 589, an in- dictment charging, in the form prescribed by the Code, that the defendant, being agent or clerk of another, " embezzled, or fraud- ulently converted to his own use, money to about the amount of eighteen hundred dollars ($1,800), * * * which came into his possession by virtue of his employment," was sufficient. See, also. People v. Tomlinson, 66 Cal. 344; 5 Pac. 509; Com. v. Hussey, 111 Mass. 432. It was held, however, in State v. Stim- son, 23 N. J. Law, 9, that it was not sufficient to describe the offense in the words of the statute, and that there should be some description either of the number or denomination of the coins and of the notes, and also an averment of the value of the notes. Indeed, the rulings in this class of cases became in some in- Moore v. Unitkd States. 43 stanoes so strict that the statutes were passed in several of the states defining what should be necessary and sufficient in indict- ments for embezzlement. Thus, in the Criminal Code of Illinois, it is declared to be sufficient to allege, generally, in the indictment, an embezzlement, fraudulent conversion, or taking, with intent to embezzle and convert funds of any person, bank, corporation, company, or co-partnership, to a certain value or amount, without specifying any particulars of such embezzlement. Under this statute, it was held proper for the court to permit all the evidence of what the defendant did by reason of bis confidential relations with the banking firm, whose clerk he was, to go to the jury, and it the jury found, from the whole evidence, any funds or credits for money had been embezzled or fraudulently converted to his own use by the defendant, it was sufficient to maintain the charge of embezzlement. " The view taken by the defense," said the court, "of this statute, is too narrow and technical to be adopted. It has a broader meaning, and, when correctly read, it will embrace all wrongful conduct by confidential clerks, agents, or servants, and leave no opportunity for escape from just punish- ment on mere technical objections not affecting the guilt or inno- cence of the party accused." Ker v. People, 110 III. 627, 647. The ordinary form of an indictment for larceny is that J. S., late of, etc., at, etc., in the county aforesaid (specifying the property), of the goods and chattels of one J. N., "feloniously did steal, take, and carry away." In other words, the whole gist of the indict- ment lies in the allegation that the defendant stole, took, and carried away certain specified goods belonging to the person named. The indictment under consideration is founded upon a statute to punish larcencies of government property. It applies to "any person," and uses the words "embezzle, steal, or purloin " in the same connection, and as applicable to the same persons and to the same property. There can be no doubt that a count charg- ing the prisoner with stealing or purloining certain described goods, the property of the United States, would be sufficient- without f urthes specification of the offense; but whether an indict, ment charging in such general terms that the prisoner "embezzled" the property of the government (identifying it) would be suffici- ent, we do not undertake to determine, although we think the 44 Federal and State Criminal Keporter, Vol. L rules of good pleading would suggest, even if thej did not abso- lutely require, that the indictment should set forth the manner or capacity in which the defendant became possessed of the property. For apother reason, however, we think the indictment in this case is insufficient. If the words charging the defendant with being an employe of the post office be material, then it is clear, under the cases above cited, that it should be averred that tlie money embezzled came into his possession by virtue of such employment. Unless this be so, the allegation of employment is meaningless, and might even be misleading, since the defendant might be held for property received in a wholly different ca- pacity, — such, for instance, as a simple bailee of the government. In the absence of a statutory regulation, the authorities upon this subject are practically uniform. Whart. Or. Law, § 1942; Kex V. Snowley, 4 Car. & P. 390; Com. v. Simpson, 9 Mete. (Mass.) 138; People v. Sherman, 10 Wend. 298; Eex v. Prince, 2 Car. & P. 517; Kex v. Thorley, 1 Moody, Cr. Cas. 343; Bake- w ell's Case, Russ. & R 35. On the other hand, if these words be rejected as surplusage and mere descriptio personas, then the property embezzled should be identified with particularity; the general rule, in the absence of a statute, being that an averrnent of the embezzlement of a certain amount in dollars and cents is insufficient. Rex v. Fur- neaux, Huss. &R 336; King v. Fowler, 5 Car. & P. 736; Com. V. Sawtelle, 11 Cush. 142; People v. Bogart, 36 Cal. 245; People V. Cox, 40 id. 275; Barton v. State, 29 Ark. 68; State v. Thomp- son, 42 id. 517; State v. Ward, 48 id. 36; 2 S. W. 191. There are undoubtedly cases which hold that, where the crime consists, not in the embezzlement of a single definite quantity of coin or bills, but in a failure to account for a number of small sums received, — a series of petty and continuous peculations, — where it would be manifestly impossible, probably for the de- fendant himself, but much more for the prosecution, to tell of what the money embezzled consisted, an allegation of a particu- lar amount is sufficient. These cases, however, are confined to public officers, or to the officers of corporations ; and where the embezzlement consists of a single amount of property, the general rule above stated still holds good. The leading case upon this Moore v. United States. 45. point is that of People v. McKinney, 10 Mich. 54, 89. lu this case the treasurer of the state of Michigan was charged with the embezzlement of $4,000 belonging to thb state. It was held that as the treasurer had by law the entire custody and management of the public money, with authority to receive such descriptions of funds as he chose, the public could exercise no control or con- stant supervision over him, and that it would be wholly imprac- ticable to trace or identify the particular pieces of money or bills received by him, and hence that the allegation of a certain amount was sufficient. This case has been followed by several others, and may be said to apply to all instances where it would be impracticable to set forth or identify the particular character of the property embezzled. State v. Munch, 22 Minn. 67; State V. Eing, 29 id. 78; 11 N. E. 233; State v. Smith, 13 Kan. 274, 294; State v. Carrick, 16 Nev. 120; U. S. v. Bornemann, 36 Fed. 257. In some jurisdictions, however, notably in England, Cali- fornia, Louisiana, and Massachusetts, the difficulty has been en- tirely remedied by statute. Greaves, Or. Law, 156; Eex v. Grove, 1 Moody, Cr. Gas. 447; Com. v. Butterick, 100 Mass. 1; Com. V. Bennett, 118 id. 443; People v. Treadwell, 69 Cal. 226; 10 Pac. 502; State v. Thompson, 32 La. Ann. 796. If, then, the indictment in this case had charged that the de- fendant, being then and there assistant, clerk, or employe in or connected with the business or operations of the United States post office in the city of Mobile, embezzled the sum stated, and had further alleged that such sum came in his possession in that capacity, we should have held the indictment sufficient, notwith- standing the general description of the property embezzled as consisting of so many dollars and cents. But, if the words charging him with being in the employ of the government be stricken out, then there would be nothing left to show why the property embezzled could not be identified with particularity, and the general rule above cited would apply. The indictment would then reduce itself to a simple allegation that the said George S. Moore, at a certain time and place, did embezzle the sum of $1,652.59, money of the United States, of the value, etc., said money being the personal property of the United States, which generality of description would be clearly bad. As there 46 Federal and State CBiMilsrAL Repoetee, Vol. I. was a demurrer to this count, which was overruled, we do not think the obiection is covered by Eev. St. § 1025, or cured by the verdict. As we hold the indictment in this case to be bad, we find, it unnecessary to consider the other errors assigned. The judgment of the court below is therefore reversed, and the case remanded, with directions to quash the indictment. United States Supreme Court. (Filed December 16, 1895.). WHITEN V. TOMLINSOK 1. Habeas coepub — State coukt. "Where a person is in custody, under process from a state court of origi- nal jurisdiction, for an alleged offense against the laws of such state, and it is claimed he is, restrained of his liberty in violation of the Constitution of the United States, the circuit court has a discretion whether it will dis- charge him, upon habeas corpus, in advance of the trial in the court in which he is indicted; but that discretion is to be subordinated to any special circumstances requiring immediate action. 2. Same. Except in such peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the state, and, even after such final determination in those courts, will generally leave the petitioner the usual and orderly course of proceeding by writ of error from the Fed- eral supreme court. 3. Same — Petition. In a petition for a writ of habeas corpus, verified by the oath of the petition, as required by section 754 of the Revised Statutes, facts duly al- leged may be taken to be true, unless denied by the return or controlled bv other evidence. 4. Same. The general allegations in the petition that the petitioner is detained in violation of the Constitution and Laws of the United States and of the Constitution and Laws of one of the states, and is held without due process of law, are averments of mere concusions of law, and not of matters of fact. Whiten v. Tomlinson. 47 5. Same. An allegation in the petition that in August and September, 1893, the petitioner was tried before a local court in New Haven upon the same charge, and, upon a full hearing, was discharged by the court, affords no ground for his discharge on habeas corpus. 6. Same. The fact that an indictment, actually presented by the grand jury of the court lacked the words "A true bill," and was found by the grand jury by mistake and misconception, is a proper subject of inquiry in the courts of the state, but affords no ground for interposition by the courts of the United States by writ of habeas corpus. 7. Same — Record. A letter written by the judge to petitioner's counsel in regard to an. amendment of the record has no place in the record, and its insertion therein does not show such amendment. 8. Same — Extradition. A warrant of extradition of the governor of a state, issued upon the requisition of a governor of another state, accompanied by a copy of an indictment, is prima facie evidence that the accused had been indicted, and was a fugitive from justice, and, if the court in which the indictment was found had jurisdiction of the offense, is sufficient to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus, and to leave tlie question of the lawfulness of the detention of the prisoner in the state in which he was indicted to be inquired into- and to determine, in the first instance, by the courts of the state. 9. Same — Return op sheriff. Any defect in the return of the sheriff to the writ of habeas corpus in not setting forth the indictment and the warrant of extradition, as ground for the detention of the prisoner, affords no reason why the courts of the United States should take the prisoner out of the custody of the authori- ties of the State. 10. Same — Residence. The question whether the word "resides," as used in section 962 of Com. St. implies domicile or only presence in the county, is for the de- cision of the state court. 11. Same — Recognizance. The question whether a recognizance, entered into for one's appearance in the state court on the day appointed by law for the beginning of the- court term, requires his appearance on the subsequent day of the term, is a question for the state court, rather than for the federal court upon a petition by writ for habeas corpus. Appeal from the circuit court of the United States for the dis- trict of Connecticut. This was a petition, filed March 25, 1895, in the circuit court of the United States for the district of Connecticut, and addressed 48 Federal and State Cbiminal Reporter, Vol. I. to the Honorable "William K.' Townsend, the district judge,, as a judge of the circuit court, for a writ of habeas corpus to the sheriff of the county of New Haven, in the state of Connecticut. The petition was signed by the petitioner, and verified by his oath, and was as follows : " The petition of George E. Whitten respectfully shows to your honor that he is now a prisoner confined in the custody of Charles A. Tomlinson, sheriff of the county of New Haven, in the county jail in the city of New Haven, in said county, for a supposed criminal offense, to wit, a crime pf murder in the second degree. " Your petitioner also shows that such confinement is by virtue of a warrant, a copy whereof is in the possession of said ' sheriff ; and your petitioner avers that, to the best of his knowledge, he is not committed or detained by virtue pf any process of law known to the courts of the United States or the several states, but he is now detained in violation, of the Constitution of the United States, in violation of the laws of the United States, and in viola- tion of the Constitution and laws of the state of Connecticut ; and that he is not held in confinement by virtue of any final judg- ment or decree of any competent court or tribunal of criminal jurisdiction, or by virtue of any prpcess issued upon such judg- ment or decree, but is held without due process of law. "And your petitioner further says that at the time of his ar- rest, and for a long time prior thereto, he was a citizen of Massa- chusetts, and was extradited from Massachusetts for said alleged crime in January, 1895 ; and he says that he is advised by his counsel, William H. Baker, residing at Boston, and so believes, that his said imprisonment is illegal, and that said illegality con- sisted in this, to wit : That in August and September, 1893, this petitioner was tried before the local court sitting within and for the county of New Haven, state of Connecticut, upon a charge of murder in the sec. ond degree, being the same alleged charge for which he was ex- tradited, and was after a full hearing thereof discharged from said court " That thereafterwards this petitioner remained in the city of New Haven, state of Connecticut, for a long time, — during at least two sessions of the grand jury, — and then removed to New- "Whiten v. Tomlinson. 49 ton, in the cammonwealth of Massachusetts, some time earlj in the year 1894 " That he was in January, 1895, while such citizen of Massa- chusetts, arrested and extradited from the state of Massachusetts upon a warrant issued by the governor of Massachusetts on de- mand and application of the governor of Connecticut, alleging that an indictment had been found by the grand jury against him of murder within and for the county of New Haven, being the same charge on which he was tried as above. This petitioner was taken to the said city of New Haven by virtue thereof. " This petitioner avers that no indictment was ever found against him by any grand jury sitting at any time within the state of Connecticut, nor no indictment as and for a true bill ever was presented by any grand jury in said state of Connecticut against him, which he is ready to verify and prove ; and any pre- tended indictment was found by mistake or misconception and was not their true verdict or finding. ''Further, your petitioner says that he was not, at the time of this extradition as aforesaid, as a fugitive from justice from said state of Connecticut. "Wherefore yours petitioner prays a writ of habeas corpus, to the end that he may be discharged from custody, and be allowed to depart safely from out the state of Connecticut to the common- wealth of Massachusetts, without interference in any way by the state authorities of the state of Connecticut, without reference to said charge made against him." On March 27th a writ of habeas corpus was issued accordingly by the district judge, returnable forthwith at a special term of the circuit court. On March 28th the sheriflf made his return to the writ, stating, as the cause of the petitioner's detention and imprisonment, that he was committed to the jail by virtue of the following mittimus: " To the SheriflE of New Haven County, His Deputy, or Any Proper Officer or Indifferent Person, Greeting: " Whereas Lucius B. Hinman, of New Haven, Conn., did on the 17th day of January, 1895, enter into a recognizance in the sum of five thousand dollars for the appearance of George B. Fed. Ceim. Rep. Vol. 1,-7 60 Federal and State Criminal Eeporter, Vol. I. Whitten, of the town of Newton, state of Massachusetts, before the superior court to be holden at New Haven, within and for the county of New Haven, on the first Tuesday of January, 1895, and the said Lucius B. Hinman now believes that said George B.Whit- ten intends to abscond, and having produced the evidence that he is surety as aforesaid for the said George B. Whitten, and hath applied to me for a mittimus, and hath made oath before me that the statements in his said application are true: "These are, therefore, by authority of the state of Connecticut, to command you that you forthwith arrest the said George E, Whitten, and him commit to the jail of said New Haven county; and the keeper of said jail is hereby ordered to receive the said George E. Whitten, and him safely keep within said jail, until he be discharged by due order of law. Hereof fail not, but due ser- vice and return make. ''Dated at New Haven, this 26th day of March, A. D. 1895. "JOHN S. FOWLER, "Justice of the Peace.'' The petitioner moved to quash the return, as insufficient to justify his detention. To the circuit court, upon a hearing, denied the motion, and discharged the writ of habeas corpus, without prejudice to the right of the petitioner to renew the motion; and filed an opinion by the district judge (67 Fed. 230), in which the grounds of de- cision were stated as follows: 'The writ was issued; and the sheriff brought the petitioner in- to this court, and made return as to the cause of his detention and imprisonment, that he was committed to jail by virtue of a mit- timus in the form provided for by statute, duly issued by a justice of the peace on the application of the bondman, upon oath that the petitioner intended to abscond. A hearing was had upon a motion to quash the return." "The petitioner was arrested in Massachusetts, and brought in- to this state, under a warrant issued by the governor of Massachu- setts upon the requisition of the governor of Connecticut, accom- panied by a certified copy of the indictment charging the crime, and an affidavit that the petitioner was a fugitive from justice. Whiten v. Tomlinson. 51 "It is claimed, ia support of the petition, that the irtdictment was procured by mistake, and that the prisoner was not in fact a fugitive from justice. These claim are denied bp the attorne}' for the state. In view of the conclusions restched, it is not necessary to pass upon these questions of fact. It may be assumed, in the dis- position of this motion, that all the allegations in the petition are true. "Counsel for the petitioner claims that he can prove in the first place, that the indictment is invalid or void, by reason of some mistake on the part of the grand jury. But the effect of inquiry into this question, assuming such evidence to be admissible and true, would be to call upon the federal court to examine into the proceedings under which said indictment was obtained, and to de- termine collaterally its sufficiency under the laws of this state." "It is further claimed that the petitioner was not a fugitive from justice, and that, inasmuch as extradition proceedings are based upon the statutes of the United States, the question whether he was in fact such fugitive is a federal question, which it is the duty of this court to decide. But it is not denied that the de- mand made upon the executive authority of the asylum state, and his action thereon were proper in form ; and it will not be as- sumed in advance that he has surrendered the petitioner upon insufficient evidence." "I do not mean to be understood as denying the right to this prisoner, at an appropriate time, to introduce evidence that he was not a fugitive from justice, or that evidence before the gover- nor of Massachusetts was insufficient to authorize his action ; nor do I intend at this time to pass upon the merits of this or any other questions presented, nor to intimate what disposition might be made of these claims in case they were brought before this court after final action in the state court. All that is now de- cided is that it must be assumed in advance that the petitioner may obtain all the protection to which he may be entitled in the courts of this state." "In view of the principle of right and law underlying the for- bearance which the federal and state courts exercise towards each other in order to avoid conflict, I should not be justified in pass- ing upon such questions in advance of the proceedings in the state courts." 52 Federal and State Criminal Eeporter, Yol. I. On April 25th the petitioner filed in the curcuit court an appeal reciting the petition, the return, and the motion to quash the re- turn, and concluding as follows: "The 'said circuit court of the United States for the district of Connecticut, on the 28th day of March, 1895, made final ruling, and decreed that upon the face of the petition, without hearing any evidence to sustain the petition [and denying the petitioner the right to introduce any evidence to sustain said petition or tend- ing to sustain it, which the plaintiff duly offered], the writ should be discharged, and that the motion to quash said return be de- nied, and it was afterwards so decreed and ordered. "Wherefore this petitioner appeals from the whole of said de- cree of said circuit court, and the petition, return, motion to quash decree, writ, and all other papers forming a record of said cause may be sent to the supreme court of the United States without delay, together with this appeal, and moves that the said supreme court will proceed to hear the said cause anew, and that the said decree of the said circuit court be reversed, and for such further order and decree to be made -as will to the supreme court of the United States seem just and right. The petition for the writ of habeas corpus, the writ of habeas corpus, the return of the sheriff, the motion to quash, and the decree of the court are hereby made a part of this appeal." On the same day that appeal was allowed by tlie district judge. On May 8th the petitioner filed a paper, purporting to amend his appeal by inserting the words above printed in brackets, and with this paper filed the following letter, addressed to his counsel by the district judge: "United States Courts, Judges' Chambers, New Haven, May 4, 1895. William H. Baker, Esq., 39 Court street, Boston, Mass. — Dear sir: Continuous court engagements night and day for two days have prevented an earlier reply to your letter of April 29th I had supposed that the record contained a statement of the fact that the court declined to hear the evidence; and if not, I am willing that the statement of said fact should be inserted in the record, provided it can be properly done at this time. "Yours, truUy, WILLIAM K. TOWNSEND." Whiten v. Tomlinson. 53 The record transmitted to this court set forth the matters above stated; but showed no further order amending the record, or al- lowing the amendement of the appeal. William H. Baker, for appellant Edward BL Rogers, for appellea Mr. Justice GRAY, after stating the case, delivered the opinion of the court. By the judicial system of the United States, established by con- gress under the power conferred upon it by the constitution, the jurisdiction of the courts of the several states has not been con- trolled or interfered with, except so far as necessary to secure the supremacy of the constitution, laws, and treaties of the United States. With this end, three different methods have been provided by statute for bringing before the courts of the United States pro- ceedings begun in the courts of the states: First. From the earliest organization of the courts of the United States, final judgments, whether in civil or in criminal cases, ren- dered by the hightest court of a state in which a decision in the case could be had, against a right specially set up or claimed un- der constitution, laws, or treaties of the United States, may be re- examined and reversed or affirmed by this court on writ of error. Acts Sept. 24, 1789, ch. 20, § 25 (1 Stat. 85) ; Feb. 5, 1867, ch. 28, § 2 (14 Stat. 396); Rev. St. § 709; Martin v. Hunter's lessee, 1 Wheat. 304; Cohens v. Yirginia, 6 Wheat. 264. Such appellate jurisdiction is expressly limited to cases in which the decision of the state court is against the right of the claimed under the con- stitution, laws, or treaties of the United States, because, when the decision of that court is in favor of such a right, no revision by this court is necessary to protect the national government in the exercise of its rightful powers. Gordon v. Caldcleugh, 3 Cranch, 268; Montgomery v. Hernandez, 12 Wheat. 129; Bank v. Griffith, 14 Pet. 56, 58; Missouri v. Andriano, 138 U. S. 496, 500, 501; 11 Sup. Ct. 385. Second. By the judiciary act of 1789, the only other way of transferring a case from a state court to a court of the United 54 Federal and State Criminal Eeporter, Vol. I. States was under section 12, by removal into the circuit court of the United States, before trial, of civil actions against aliens, or between citizens of different states. 1 Stat. 79. Such right of re- moval for trial has been regulated, and extended to cases arising under the constitution, laws, or treaties of the United States by successive acts of congress, which need not be particularly referred to, inasmuch as the present case is not one of such a removal. Third. By section 14 of the old judiciary act the courts of the United States were authorized, in general terms, to issue writs of habeas corpus and other writs necessary for the exercise of their respective jurisdictions ; " provided that writs of habeas corpus shall in no case extend to prisoners in jail, unless when they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." 1 Stat. 81. Under that act, no writ of habeas corpus, except ad testificandum, could be issued in a case of a prisoner in jail under commitment by a court or magistrate of a state. Ex parte Dorr, 3 How. 103; In re Burrus, 136 U. S. 586, 593; 10 Sup. Ct. 850. By subsequent acts of congress, however, the power of the courts of the United States to issue writs of habeas corpus of prisoners in jail has been extended to the the case of any person in custody for an act done or omitted in pursuance of a law of the United States, or of an order or process of a court or judge thereof, or in custody in violation of Constitution or of a law or treaty of the United States, or who, being a subject or citizen of and domiciled in a foreign state, is in custody for an act done or omitted under any right or exemption claimed under a foreign state, and depending upon the law of nations. Acts March 2, 1833, chap. 57, § 7 (4 Stat. 634) ; Aug. 29, 1842, chap. 257 (5 Stat. 539); Feb. 5, 1867, chap. 28, § 1 (14 Stat. 385) ; Rev. St. § 753. By the existing statutes, this court and the circuit and district courts, and any justice or judge thereof, have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any prisoner in jail who " is in custody in violation of the Constitution or of a law or treaty of the United Whiten v. Tomlinson. 55 States" ; and "the court or justice or judge, to whom the appli- cation is made, sliall forthwith award a writ of habeas corpus, un- less it appears from the petition itself that the party is not entitled thereto'' ; and "shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice may require." Eev. Sl §§ 751-755, 761. The power thus granted to the courts and judges of the United States clearly extends to prisoners held in custody, under the au- thority of a state, in violation of the Constitution, laws or treaties of the United States. But in the exercise of this power the courts of the United States are not bound to discharge by writ of habeas corpus every such prisoner. The principles which should govern their action in this matter were stated, upon great consideration, in the leading case of Ex parte Eoyall, 117 U. S. 241 ; 6 Sup. Ct. 734, and were repeated in one of the most recent cases upon the subject, as follows : " We cannot suppose that congress intended to compel those courts, by such means, to draw to themselves, in the first instance, the control of all criminal prosecutions commenced in state courts exercising authority within the same territorial limits, where the accused claims he is held in custody in violation of the Constitu-' tioii of the United States. The injunction to hear the case sum- marily, and thereupon ' to dispose of the party as law and justice require,' does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not dis- turbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution." " Where a person is in custody, under process from a state court of original jurisdiction, and from an alleged oEEense against the laws of such case, and it is claimed tnat he is restrained of his liberty in vio- lation of the Constitution of the United States, the circuit court has a discretion whether it will discharge him, upon habeas cor- pus, in advance of his trial in the court in which he is indicted ; 56 Federal and State Criminal Eepoeter, Vol. I. that discretion, however, to be sabordinated to any special circum- stances requiring immediate action. When the state court shall have finally acted upon the case, the circuit court has still a dis- cretion whether, under all the circumstances existing, the accused, if convicted, shall be put to his writ of error from the highest court of the state, or whether it will proceed, by writ of habeas corpus, summarily to determine whether the petitioner is restrained of his liberty in violation of the Constitution of tlie United States." Ex parte Eoyall, 117 U. S. 241, 251-253; 3 Sup. Ct. 734; New York V. Eno, 155 U. S. 89, 93-95; 15 Sup. Ct 30. In Ex parte Eoyall and in New York v. Eno it was recognized that in cases of urgency, such as those of prisoners in custody by authority of a state, for an act done or omitted to be done in pursuance of a law of the United States, or of an order or process of a court of the United States, or otherwise involving the author- ity and operations of the general government, or its relations of foreign nations, the courts of the United States should interpose by writ of habeas corpus. Such an exceptional case was In re Neagle, 135 U. S. 1 ; 10 Sup. Ct. 658, in which a deputy marshal of the United States, charged under the Constitution and laws of the United States with the duty of guarding and protecting a judge of a court of the United States, and of doing whatever might be necessary for that purpose, even to the taking of human life, was discharged on habeas corpus from custody under commitment by a magistrate of a state on a charge of homicide committed in the performance of that duty. Such, also, was In re Loney, 134 U. S. 372 ; 10 Sup. Ct. 584, in which a person arrested by order of a magistrate of a state for perjury in testimony given in the case of a contested congressional election, was discharged on habeas corpus, because a charge "of such perjury was within the exclusive cognizance of the courts of the United States, and to permit it to be prosecuted in the state courts would great impede and embarrass the administration of justice in a national tribunal. Such, again, was Wildedhus' Case, 120 U. S. 1 ; 7 Sup. ,Ct. 385, in which the question was decided on habeas corbus whether an arrest, under authority of a state, of one of the crew of a for- Whiten v. Tomlinson. 57 eiga merchant vessel, charged with the commission of a crime on board of her while within a port within the state was contrary to the provisions of a treaty between the United States and the country to which the vessel belonged. But, except in such peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance af a final determination of his case in the courts of the state ; and, even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this court. Ex parte Royall, 117 U. S. 241 ; 6 Sup. Ct. 734; Ex parte Fonda, 117 U. S. 516 ; 6 Sup. Ct. 848 ; In re Duncan, 139 U. S. 449 ; 11 Sup. Ct. 573 ; In re Wood, 140 U. S. 278 ; 11 Sup. Ct. 738 ; In re Jugiro, 140 U. S. 291 ; 11 Sup. Ct. 770 ; Cook v. Hart, 146 U. S. 183 ; 13 Sup. Ct 40 ; In re Frederich, 149 U. S. 70 ; 13 Sup. Ct. 793 ; New York v. Eno, 155 U. S. 89 ; 15 Sup. Ct. 30 ; Pepke v. Cronan, 155 U. S. 100, 15 Sup. Ct. 34; Bergemann v. Backer, 157 U. S. 655 ; 15 Sup. Ct. 727 In a petition for a writ of habeas corpus, verified by the oath of the petitioner, as required by section 754 of the Revised Stat- utes, facts duly alleged may be taken to be true, unless denied by the return, or controlled by other evidence. But no allegation of fact in the petition can be assumed to be admitted, unless distinct and unambiguous. The facts upon which the lawfulness of the imprisonment of this petitioner depends are obscurely and imperfectly presented in his petition and in the record transmitted to this court , The general allegations in the petition that the petitioner is de- tained in violation of the Constitution and laws of the United States and of the Constitution and laws of the state of Connecti- cut, and is held without due process of law, are averments of mere conclusions of law, and not matters of fact Cuddy's Case, 131 U. S. 280, 286 ; 9 Sup. Ct 703. The petition begins by alleging that the petitioner is a prisoner confined by the sheriff of the county of New Haven in thecounty jail for a supposed criminal offense, to wit, the crime of murder in the second degree, and that his imprisonment is by virtue of Fed. Crim. Rep.. Vol. I.— 8 58 Federal and State Criminal Eeporter, Vol. I. a warrant, a copy whereof is in the possession of the sheriff. It also alleges that the petitioner was a citizen of Massachusetts, and was extradited from that state for said alleged crime, in January, 1895. So far, certainly, no unlawful imprisonment is shown. The allegation that in August and September, 1893, he was tried before a local court in New Haven upon the same charge, and, upon a full hearing, was discharged by the court, would seem to point to a hearing and discharge upon an application for his committal to jail to await prosecution, rather than to a formal trial and acquittal, and, whatever effect it might have, if pleaded to a subsequent indictment, affords no ground for his discharge on habeas corpus. Ex parte Bigelow, 113 U. S. 328 ; 5 Sup. Ct M2 ; Ex parte Belt, 159 U. S. 95 ; 15 Sup. Ct 987. It is then alleged that he remained in New Haven during at least two sessions of the grand jury, and then, early in 1894, re- moved to Massachusetts ; and that in January, 1895, he was ar- rested in Massachusetts, and brought to New Haven upon a war- rant of extradition, issued by the gov^ernor of Massachusetts, upon the demand of the governor of Connecticut, alleging that an indictment for murder had been found against him by the grand jury of the county of New Haven. These allegations are immaterial except as introductory to the remaining allegations of the petition. One of those allegations is " that no indictment was ever found .against him by any grand jury sitting at any time within the state of Connecticut, nor no indictment as and for a true bill was ever presented by any grand jury in said state of Connecticut against him, which he is ready to verify and prove ; and any pretended indictment was found by mistake or misconception, and was not their true verdict or finding." It is not alleged that it appears by the records of the court that no indictment was presented by the grand jury ; and it is by no means clear that it was intended to allege anything more than an indictment, actually presented by the grand jury to the court, lacked the words, " A true bill," and was found by the grand jury by. mistake and misconception. Such matters are proper subjects of inquiry in the courts of the state, but afford no ground Whiten v. Tomlinson. 59 for interpositioa by the courts of the United States by writ of habeas corpus. In re Wood, 140 U. S. 278 ; 11 Sup. Ct. 738; In re Wilson, 140 U. S. 575; 11 Sup. Ct. 870. The only allegation in the peiition is that the petitioner was not, at the time of his extradition from Massachusetts a fugitive from the justice of Connecticut The record, independently of the opinion of the circuit court, ■does not show what, if any, evidence was introduced at the hear- ing upon which the writ of habeas corpus was discharged, and the prisoner left in custody. The case was heard by the circuit •court, and not by the district judge at chambers or out of court. Had it been so heard by him, there couid have been no appeal to this court from his decision. Eev. St §§ 751, 752, 764 ; Act March 8, 1885, chap. 353 (23 Stat 437); Carper v. Fitzgerald, 121 U. S. 87 ; 7 Sup. Ct. 825 ; Lambert v. Barrett, 157 U. S. 697 ; 1.5 Sup. Ct 722. The subsequent correspondence between the dis- trict judge and the petitioner's counsel had no proper place in the record of the court, and it does not appear that the judge intended or expected his letter to be filed or recorded. In that letter he did no more than express his willingness that the record should be amended, provided it properly could be done. It does not appear that the judge afterwards allowed, or was requested to allow, any amendment of the record, or of the appeal ; and the petitioner, or his counsel could not amend either the record or the appeal by his own act, without leave of the judge. If, in order to ascertain what was proved, or offered to be proved at the hearing, we turn to the opinion filed in the court below and sent up with the record, it thereby appeared that the petitioner offered to prove that the indictment against him was procured by some mistake of the grand jury, and that he was not in fact a fugitive from justice ; and that the judge assumed, for the purpose of the disposition of the writ of habeas corpus, that all the allegations of the petition were true. But, if the opinion can be referred to as showing part of what took place at the hearing, it may likewise be referred to as show- ing other matters then before the court, and especially the pro- ceedings for extradition. As to those proceedings, the opinion (consistently with the alle- 60 Federal and State Criminal Eeporter, Yol. L gations of the pettion, so far as anything upon the subject is dis- tinctly and unequivocally alleged therein) not only states, as un- controverted facts, that the petitioner was arrested is Massachu- setts, and brought into Connecticut, under a warrant of extradition issued by the governor of Massachusetts, upon a requisition of the governor of Connecticut, accompanied by a certified copy of the indictment, and by an affidavit that the petitioner was a fugitive from justice, but expressly says that it was not denied that the demand upon the executive authority of Massachusetts, and his action thereon, were proper in form. A warrant of extradition of the governor of a state, issued upon tlie requisition of the governor of another state, accompanied by a copy of an indictment, is prima facie evidence, at least, that the accused had been indicted, and was a fugitive from justice, and) when the court in which the indictment was found has jurisdiction of the offense (which there is nothing in this case to impugn), is sufficient to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus, and to leave the question of the lawfulness of the detention of the prisoner in the state in which he was indicted to be inquired into and determined, in the first instance, by the courts of the state, which are em- powered and obliged, equally with the courts of the United States, to recognize and uphold the supremacy of the constitution and laws of the United States. Robb v. Connolly, 111 U. S. 624, 4: Sup. Ct. 544 ; Exparte Eeggel, 114 U. S. 642, 5 Sup. Ct. 1148 ; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291; Cook v. Hart, 146 U. S. 183, 13 Sup. Ct. 40; Pearce v. Texas, 155 U. S. 311, 15 Sup. Ct. 116. The return 'of the sheriff to the writ of habeas corpus does not (iis it might well have done) set forth the indictment, and the war- rant of extradition, as grounds for the detention of the prisoner. But any defect in the return in this respect affords no reason why the courts of the United States should take the prisoner out of the custody of the authorities of the state. The return does show that the petitioner is held in custody by ■ the sheriff by virtue of a mittimus issued to him by a justice of the peace, in accordance with sections 962 and 1613 of the Gen- Whiten v. Tomlinson. 61 eral Statutes of Connecticut of 1887," which authorize the surety on a recognizance either in civil or in criminal proceedings, upon making affidavit that his principal intends to abscond, to obtain from a justice of the peace a mittimus to commit him lo jail. The only objections taken by the petitioner to the sufficiency of this mittimus are : First, that it shows that the recognizance was entered into on the 17th of January, 1895, for his appearance " before the superior court to be holden at New Haven, within and for the couuty of New Haven, on the first Tuesday of January, 1895," which was a day already passed ; and, second, that it de- scribes him as "of the town of Newton, state of Massachusetts," while the statute only authorizes the issue of a mittimus by " a justice of the peace of the county in which such principal resides." But the first Tuesday of January was the day appointed by law for the beginning of the term of the superior court. Gen. St Conn, section 1615. And the question whether the recognizance might be construed as requiring an appearance at a subsequent day in the course of the term, as well as the question whether the word "resides," as used in the statute, implies domicile or only presence in the county, is a question which should be left to the decision of the courts of the state. There could be no better illustration than this case affords of the wisdom, if not necessity, of the rule established by the deci- sions of this court above cited, that a prisoner in custody under the authority of a state should not, except in a case of peculiar ' Sec. 962. Any bail or surety who has entered into a recognizance for the personal appearance of another, and shall afterwards helieve that his principal intends to abscond, may apply to a justice of the peace in the county in which such principal resides, produce his bail bond, or evidence, of his being bail or surety, and verify the reason of his application by oath or otherwise ; and thereupon such justice shall forthwith grant a mittimus, directed to a proper officer or indifferent person of such county, commanding him forthwith to ar- rest such principal, and commit him to the jail of such county; and the keeper of such jail shall receive such principal, and retain him in jail until discharged by due order of law, and such surrender of the principal shall be a full dis- charge of the surety upon his bond or recognizance. ' Sec. 1613. Any surety in a recognizance in criminal proceedings, who be- ' lieves that his principal intends to abscond, may have the same remedy, and proceed and be discharged in the same manner, as sureties upon bail bonds in civil actions. 62 Federal and State Criminal Reporter Vol. I. urgency, be discharged by a court or judge of the United States ■upon a writ of habeas corpus, in advance of any proceedings in the courts of the state to test the validity of his arrest and deten- tion. To adopt a different rule would unduly interfere with the exercise of the criminal jurisdiction of the several states, and with the performance by this court of its appropriate duties. Order affirmed. United States Supreme Court. (December 23, 1895.) KOHL V. LBHLBACK. 1. Habeas corpus— State court. A state court, which has jurisdiction of the offense charged and of the accused, must determine whether an indictment sufficiently charges the crime of murder in the first degree. 2. Same— Appeal. An appeal to a higher court from a judgment of conviction is not a mat- ter of absolute right, independently of constitutional or statutory provi- sions allowing it, and a state may accord it to a person convicted of crime upon such terms as it thinks proper. 8. Same — State courts. Whether a writ of error in criminal cases punishable with death can or cannot be prosecuted under the various acts of New Jersey, unless allowed by the chancellor of the state under section 83 of the Criminal Procedure Code, and, if so, under what circumstances and on what conditions, are- matters for the state courts to determine. 4. Same. The supreme court of the United States can neither anticipate nor over- rule the action of the state courts as to the right to review in an appellate court, since a denial of such a right altogether would constitute no viola, tion of the Constitution of the United States. 5. Same — Constitutional law. The provision of the New Jersey statute that a juror shall not be ex- cepted to on account of his citizenship after he has been sworn, does not violate the state constitution. 6. Same — Judgment. A judgment of conviction is not invalid because one of the jurors was an alien, where no objection was made to him on this account. Kohl v. Lehlback. 63 Appeal from the Circuit Court of the United States for the Dis- trict of New Jersey. This is an appeal from an order of the circuit court of the Uni- ted States for the district of New Jersey, entered May 10, 1896, denying a writ of habeas corpus on the petition of Henry Kohl therefor. Petitioner represented that he was indicted in the court of oyer and terminer and general jail delivery of Essex county, N. J., for the crime of murder, in December, 1894; that he moved to quash the indictment, •which motion was denied, and an excep- tion' duly taken ; that his trial commenced January 14th and ended January 25, 1895, in the rendition of a verdict of murder in the first degree; that on February 12th application was made for a new trial, and rule to show cause was granted and discharged February 14, 1895 ; that he was sentenced, February 21st, to be hanged on March 21, 1895 ; and that he was unlawfully held in imprisonment by Herman Lehlback, sheriff of Essex county, by virtue of said sentence. It was also averred that "Samuel Ader, a juror on the jury that convicted your petitioner, is not, and never was, a citizen of the United States of America" ; and that petitioner was restrained of his liberty in violation of the constitution and laws of the United States and of the state of New Jersey, in that petitioner was in- dicted for an offense having no existence under the laws of New Jersey, which recognized on such crime as murder, the common- law crime of murder having been divided by statute into two de. grees, and the indictment not having distinctly set out the statu- tory crime. Petitioner further showed that on the 27th day of February application for a writ of error was made to the chancellor of New Jersey, which was denied, and " that an appeal had been duly taken from the order of the said chancellor to the court of errors and appeals, where such appeals are reviewable, and said appeal is now pending in said court of errors and appeals in the state of New Jersey." It was further represented tliat petitioner was en- titled, and desired, to have the verdict and all the proceedings on his trial, various objections and exceptions thereto having been made and taken, adjudicated by the highest courts of New Jersey; "that on the 6th day of April last past your petitioner's counsel 64 Federal and State Criminal Reporter, Vol. I. ia open court, in the Essex oyer and terminer, in the presence of the prosecutor, presented a writ of error, signed by the clerk of the supreme court of New Jersey, sealed with the seal of said court, from the said supreme court to the said oyer and terminer ; that the said court would not allow the writ, but permitted it to be filed with the clerk of said court ; that said writ was presented under and by virtue of the act of 1881 of New Jersey ; that the said act is valid and effectual, that the act of 1878 of New Jersey made writs of error writs of right in all cases" ; and further, "that the presiding judge of the said oyer and terminer court has in- structed the clerk of Essex county, who is the clerk of said oyer and terminer, not to furnish your petitioner's counsel with a copy of the record and proceedings in this case; that the supreme court of New Jersey has refused your petitioner a stay of execution, and your petitioner has exhausted all remedies in the state court." The petition then assigned in repetition the several grounds on which it was contended that the conviction was unlawful, to the eSect that the indictment was insuflicient ; that petitioner had been denied by the state of New Jersey the equal protection of the laws i and that petitioner's conviction not only was in violation of the laws of New Jersey, but of the fourteenth amendment of the constitution of the United States, because not by due process of law. And it was further alleged that under and by virtue of the sentence the sheriff of Essex county threatened to execute the sentence of death on petitioner May 16th, to which time he had been reprieved. Arthur English, for appellant E. W". Crane, for appellee. Mr. Chief Justice FULLER, after stating the acts in the fore- going language, delivered the opinion of the court In "Whitten v. Tomlinson, 16 Sup. Ct. 297, the power vested in the courts and judges of the United States to grant writs of habeas corpus for the purpose of inquiring into the cause of re- straint of liberty of persons held in custody under state authority, in alleged violation of the constitution, laws or treaties of the United States, is considered, and the principles which should Kohl v. Lehlbage. 65 govern taeir action in the exercise of this power stated ; and at- tention is there called to the necessary and settled rule that " in a petition for a writ of habeas corpus, verified by the oath of the petitioner, as required by section 754 of the Eevised Statutes, facts duly alleged may be taken to be true, unless denied by the return, or controlled by other evidence, but no allegation of fact in the petition can be assumed to be admitted, unless distinct and unam- biguous"; and that "the general allegations in the petition that the petitioner is detained in violation of the constitution and laws of the United States and of the constitution and laws of the par- ticular state, and is held without due process of law, are averments of mere conclusions of law, and not of matters of fact." Caddy's Case, 131 U. S. 280, 286 ; 9 Sup. Ct. 703. 1. Having jurisdiction of the offense charged and of the accused, it was for the state courts to determine whether the indictment in this case sufficiently charged the crime of murder in the first de- gree. Caldwell v. Texas, 137 U. S. 692, 698; 11 Sup. Ct. 224,- Bergemann v. Backer, 157 U. S. 655 ; 15 Sup. Ct. 727. In the latter case it was decided, in reference to a similar objec- tion to the indictment to that made here, and upon an examination of the statutes and judicial decisions of the highest courts of New Jersey, that it could not be held that the accused was proceeded against under an indictment based upon statutes denying to him the equal protection of the laws, or that were inconsistent with due process of law, as prescribed by the fourteenth amendment to the constitution. Graves v. State, 45 N. J. Law, 203, 358 ; Titus V. State, 49 id. 86 ; 7 Atl. 621. We do not deem it necessary to reconsider in this case the conclusion there reached. 2. In McKane v. Durston, 153 U. S. 684; 14 Sup. Ct 913, we held that an appeal to a higher court from a judgment of convic- tion is not a matter of absolute right, independently of constitu- tional or statutory provisions allowing it, and that a state may ac- cord it to a person convicted of crime upon such terms as it thinks proper; and in Bergemann v. Backer, supra, that the refusal of the courts of New Jersey to grant a writ of error to a person convicted of murder, or to say the execution of a sentence, will not itself Fed. Crim. Rep., Vol. I.— 9 66 Federal and State Criminal Eeporter, Vol. I. warrant a court of the United States in interfering in his behalf by writ of habeas corpus. Appellant insists that he has been denied the equal protection of the laws because he has been deprived of a writ of error for the review of the record and proceedings in his case in violation of the laws of New Jersey. Section 83 of the criminal procedure act of New Jersey, brought forward from section 13 of an act of March 6, 1795 (Pat. Laws N. J. p. 162) provided that " writs of error in all criminal cases not punishable with death, shall be considered as writs of right, and issue of course; and in criminal cases punishable with death^ writs or error shall be considered as writs of grace, and shall not issue but by order of the chancellor for the time being, made upon motion or petition, notice whereof shall always be given to the attorney-general or the prosecutor for the state." Revision N. J. p. 288. By an act approved March 12, 1878, this section was amended so as to read ; " Writs of error in all criminal cases shall be considered as writs of right and issue of course; but in criminal cases punishable with death, writs of error shall be issued out of and returnable to the court of errors and appeals alone, and shall be heard and determined at the term of said court next after the judgment of the court below, unless for good reasons the court of errors and appeals shall continue the cause to any subsequent term." Supp. Eevision N. J. pp. 209, 210. In Entries v. State, 47 N. J. Law, 140, a writ of error under this act was dismissed by the court of errors and appeals, the court holding that such writ would not go directly from that court to the oyer and terminer, and that " the legislature cannot sanction such a proceeding as it is one of the prerogatives of the supreme court to exercise in the first instance, jurisdiction in such cases." By an act of March 9, 1881, it was provided in the first section that "in case a writ of error shall be brought to remove any judg- ment rendered in any criminal action or proceeding, in any court of this state, and such writ of error shall be presented to such court, the said writ of error shall have the effect of staying all proceedings upon the said judgment, and upon the sentence which the court or any judge thereof may have pronounced against the person or persons obtaining and prosecution the said writ of error, Kohl v. Lehlback. 67 pending and during the prosecution of such writ of error " ; and by the second section, that pending the prosecution of such writ of error, the court may require the party prosecuting the writ to give bail, " provided, that this section of this act shall not apply to capital cases." Supp. Eevision, p. 210. And by and act passed May 9, 1894, it was provided that the entire record of the pro- ceedings on the trial of any criminal cause might be returned by the plaintiff in error with the writ of error and form part thereof, and if it appeared from said record that the plaintiff in error had suffered manifest wrong or injury in the matters therein referred to, the appellate court might order a new trial. Laws N. J. 1892, p. 246. Clearly, whether a writ of error in criminal cases punishable with death can or cannot be prosecuted under these various acts, unless allowed by the chancellor of the state under section 83 of tlie criminal procedure act, and, if so, under what circumstances, and on what conditions, are matters for the state courts to deter- mine. Petitioner alleged that an appeal from the chancellor's order refusing a writ of error was pending in the court of errors and appeal, and also that a writ of error signed by the clerk of the supreme court of New Jersey, and sealed with the seal of that court, from the supreme court to the oyer and terminer, had been presented to the latter court under the act of 1881, but that the court of oyer and terminer would not allow the writ, and instructed its clerk not to furnish a copy of the record and proceedings. It is, however, averred that the supreme court had refused a stay of execution, so that it would appear that, if that court really issued a writ of error, it had either arrived at the conclusion that this was improvidently done, or that for other reasons it could not be maintained. And the petition set up no action by the supreme court to com- pel its writ to be respected, and no effort on petitioner's part to procure such action, nor any effort to supply a copy of the record and proceedings. Ableman v. Booth, 21 How. 506, 512. The averments in reference to this matter are so vague and in. definite that interference might well be declined for that reason. At all events, inasmuch as the right of review in an appellate court is purely a matter of state concern, we can neither anticipate 68 Federal and State Criminal Reporter, Vol. I. or overrule the action of the state courts ia that regard, since a denial of the right altogether would constitute no violation of the constitution of the United States. "What petitioner asks us to do is to construe the laws of New Jersey for ourselves, hold that they give a writ of error to the supreme court, and discharge peti- tioner on the ground either that the courts of New Jersey have arrived at a different conclusion and denied the writ, or have granted it and refused to make it efiectual. In either aspect, we are unable thus to revise the proceedings in those courts. 3. It is further contended that petitioner was denied due pro- cess of law and the equal protection of the laws, in that one of the jurors by whom he was tried was an alien. The allegation of the petition is "that Samuel Ader, a juror on the jury that con- vited your petitioner, is not, and never was, a citizen of the United States of America." Nothing is said as to when this matter came to petitioner's knowledge, and, and for aught that appears, it may have been in- quired into by the courts of New Jersey, and the fact determined to be otherwise than alleged, or the objection may have been raised after verdict, and overruled, because coming too late. The statute of New Jersey provides that every petit juror returned for the trial of any action of a criminal nature shall be a citizen of the state, and resident within the county from which he shall be taken, and above the age of twenty-one and under the age of sixty-five years; and if any person, who is not so qualified, shall be sum- moned as a juror on a trial of any such action in any of the courts of the state it shall be good cause of challenge to any such juror, " provided, that no exception to any such juror on account of his citizenship, or age, or any other legal disability, shall be al- lowed after he has been sworn or affirmed." Revision N. J. p. 532. This proviso is brought forward from an act of November 10, 1797 (Acts 22d Gen. Assem. N. J. 1797, p. 250). The constitution of New Jersey of 1776 provided that " the inestimable right of trial by jury shall remain confirmed as a part of the law of this colony, without repeal, forever." Section 22. And the constitution of 1844 declares that "the right of trial by jury shall remain invio- late." Article 1, § 7. It is urged that the above-mentioned pro- viso, which has been part of the laws of New Jersey for nearly Kohl v. Lehlback. 69 100 years, should now be held by this courts contrary to the con- stitution of that state, although the courts of the state may have held it in this case in harmony therewith, and have certainly not pronounced it invalid. The line of argument seems to be that by the common law as obtaining in New Jersey an alien was disqualified from serving on a jury; that the disqualification was absolute; in that particular under the state constitution ; that the proviso was, therefore, void ; and that, if an alien sat upon a jury, the common-law right of trial by jury would have been invaded. So far as the petition shows, this contention may have been disposed of adversely to petitioner by the state courts; and, moreover, we are of opinion that in itself it cannot be sustained as involving an infraction of the constitution of the United States. In Hollingsworth v. Duane, reported in Wall. Sr. 147, Fed. Cas. No. 6,618, and also, but imperfectly, in 4 Dall. 353, it was held by the circuit court of the United States for the Eastern dis- trict of Pennsylvania, at October term, 1801, that alienage of a juror is cause of challenge, but is not per se sufficient to set aside a verdict, and this whether the party complaining knew of the fact or not ; and that this was the rule at common law as shown by authorities cited from the Year Books and otherwise. In Wassum v. Feeney, 121 Mass. 93, the snpreme judicial court of Massachusetts held that '"a verdict will not be set aside because one of the jurors was an infant, where his name was on the list of jurors returned and impaneled, though the losing party did not know of the infancy until after the verdict." And Mr. Justice Gray, then chief justice of Massachusetts, delivering the opinion, said: "When a party has had an opportunity of challenge no disqualification of a juror entitles him to a new trial after ver- dicts This convenient and necessary rule has been applied by this court, not only to a juror disqualified by interest or relation j(Jefi!ries v. Randall, 14 Mass. 205; Woodward v. Dean, 113 Mass. 297), but even in a capital case, to a juror who was not of the country or vicinage, as required by the constitution (Declaration of Rights, art. 13; Anon., cited by Jackson, J., in 1 Pick. 41, 42). The same rule has been applied by other courts to disqualication by reason of alienage, although not in fact known until after ver- 70 Federal and State Criminal Eepoeter, Vol. L diet. Hollingsworth v. Duane, 4 Dall. 353; Wall. Sr. 147: Fed. Gas. No. 6,618; State v. Qaarrel, 2 Bay. 150; Presbury v. Com., 9 Dana, 203; King v. Sutton, 8 Barn. & C. 417; Same Case, nom. King V. Despard, 2 Man. & R 406. In the Case of Chelsea Waterworks Co., 10 Bxch. 731; Baron Parke said : "In the case of a trial by a jury de medietate linguae, which by the forty-sev- enth section of the jury act [6 Geo. IV. ch. 50] is expressly re- served to an alien, he may not know whether proper persons are on the jury; yet, if he was found guilty, and sentenced to death, the verdict would not be set aside because he was tried by im- proper persons, for he ought to have challenged them.' See, also, Case of a Juryman, 12 East, 231, note; Hill v. Yates, Id. 229." The great weight of authority is to that eflEect,' though there are a few cases to the contrary. Thus in Guykowski v. People, 1 Scam. 476, it was held that a new trial should be granted because one of the jurors was an alien when sworn, of which fact the de- fendant was ignorant at the time ; but in Greenup v. Stoker, 3 Gilraan, 202, the supreme court at Illinois, though Purple, J., re- luctantly concluded that it was not indispensable to hold that that case was not the law, but limited its application to capital cases ; and in Chase v. People, 40 III. 352, it was finally overruled. Mr. Justice Breese spoke for the court, and it was held that alienage in a juror was not a positive disqualification, but ground of ex- emption or of challenge, and nothing more. It has been held that under the constitution of New lork the defendant in a capital case cannot consent to be tried by less than a full jury of twelve men (Cancemi v. People, 18 N. Y. 128), and that under the constitution of California, a law authorizing a change of the place of trial of a criminal action to another county than that where the crime was committed on application of the prosecution without defendant's consent was invalid (People v. Powell, 87 Cal. 348; 25Pac. 481); but in neither of these cases was it intimated that objection to individual jurors could not bq waived by the accused, or that trial by jury would be violated if persons who were open to challenge happened to be impaneled. The disqualification of alienage is cause of challenge propter de- fectum, on account of personal objection, and if voluntarily, or through negligence, or want of knowledge, such objection fails to Maekham v. United States. 71 be insisted on, the conclusion that the judgment is thereby invali- dated is wholly inadmissible. The defect is not fundamental as affecting the substantial rights of the accused, and the verdict is not void for want of power to render it. U. S. v. Gale, 109 U. S. 65, 71; 3 Sup. Ct. 1. Whether, where the defendant is without fault, and may have been prejudiced, a new trial may not be granted on such a ground, is another question. That is not the inquiry here, but whether the law of New Jersey is invalid under the constitution of that state, and this judgment void, because one of the jurors who tried petitioner may have been an alien. If prior to the filing of the petition, the objection had been brought before the state courts, and overruled, we perceive no reason for declining to be bound by their view of the e£Eect of the state con- stitution; and if the matter had not been called to their attention, it does not appear why that should not have been, or should not now be done. In any view, we cannot hold, on this petition, that petitioner has been denied due process of law, or that protection of the laws accorded to all others similarly situated. The circuit court was right in declining by writ of habeas corpus to obstruct the ordinary administration of the criminal laws of New Jersey through the tribunals of that state (In re Wood, 140 U. S. 278, 289; 11 Sup. Ct. 788), and its order is affirmed. United States Supreme Court. (December 19, 1895.) MAEKHAM v. UNITED STATES. Indictment — Perjukt. An indictment for perjury, which gives the name of the ofBcer before whom the alleged false oath was taken, avers that he was competent to administer an oath, sets forth the very words of the statement alleged to have been willfully and corruptly made by the accused, and charges that such false statement was part of a deposition given and subscribed by the 72 Federal and State Criminal Eeportee, Vol. L accused before that oflScer and was material to an inquiry then pending before, and within the jurisdiction of, the commissioner of pensions of United States, is sufficient under the statute. 2. Same— Section 5396. Section 1035 of 3 Rev. St., does not dispense with the requirement of section 5396 that an indictment for perjury shall set forth the substance of the offense charged. In Error to the district court of the United States for the dis- trict of Kentucky. The plaintiff in error was indicted in the district court of the United States for the district of Kentucky for the crime of per- jury, as defined in section 5392 of the Revised Statutes. The defendant pleaded not guilty. The first and second counts related to certain statements by the accused, alleged to have been willfully, falsely, and feloniously made, in a deposition, given, under oath, before G. C. Loomis. a special examiner of the pension bureau of the United States, such statements being material to an inquiry pending before the commissioner of pensions in refer- ence to a claim of the accused for a pension from the United States. The third count set out another statement of the accused in the same deposition, and charged that he did not believe it to be true. The defendant was found guilty upon the fourth count of the indictment, which was as follows : "And the grand jurors aforesaid, upon their oaths aforesaid, do further present that at Bowling Green, in the district aforesaid, on the seventh day of October, in the year of our Lord eighteen hundred and ninety-two, the matter of the hereinafter mentioned deposition became and was material to an inquiry then pending before, and within the jurisdiction of, the commissioner of pen- sions of the United States, at Washington, in the District of Co- lumbia, whereupon said William H. Markham did then, at said Bowling Green, willfully and corruptly take a solemn oath before G. C. Loomis, then and there a special examiner of the pension bureau of the United States, and then and there a competent offi- cer and having lawful authority to administer said oath ; that a certain deposition then and there by said Markham subscribed was then and there true, and in giving said deposition said Mark- Markham v. United States. 73 ham was asked by said Loomis a question in substance and eSect as follows, to wit: ' Have you received any injury to forefinger of right hand since the war, or since your discharge from the army ?' by which said question said Loomis referred, and said Markham well understood said Loomis to refer, to the right hand of said Markham. And in answer to said question said Mark- ham then and there made and subscribed an answer and statement in substance and effect as follows, to wit : ' No, sir ; I never have, — which said statement that said Markham never had re- ceived any injury to the forefinger of his right hand since his (said Markham's) discharge from the army was then and there material to said inquiry, and was then and there not true; whereas in truth and in tact, the said Markham had then and theretofore received an injury to the forefinger of his (said Markham's) right hand, as he, the said Markham, then and there very well knew. And so the 'jurors aforesaid, upon their oath aforesaid, say that said Markham did commit willful and corrupt perjury, in the manner and form as in this count aforesaid, against," etc. There was no demurrer to the indictment nor any motion to quash either of the counts. The defendant moved for an arrest of judgment upon the fol- lowing grounds : (1) That the count upon which he was found guilty charged no offense under ths statute. (2) That its aver- ments did not inform the court that any offense had been commit- ted, nor show that Loomis, the examiner, was authorized to ad- minister the oath alleged. (3) That the averments did not set the proceeding or cause in which the defendant was charged to- have given his disposition, or made oath to the statement alleged to be false, in such manner as to show that the disposition and the- alleged false statement were material to any inquiry or matter be- fore the commissioner of pensions, nor to what said inquiry re- lated, nor show that Loomis, special examiner had any lawful authority to swear or require the defendant to swear to the depo- sition or statement averred to be false, nor for what purpose, nor upon what cause, or investigation of what claim, or of any claim pending before any department of the government, or in any court (4) That it did not aver facts sufficient to show the mate- Fed. Crim. Rep., Vol. I.— 10 74 Fedeeal and State Crimhstal Reporter, Vol. I. riality of the oath or statement alleged to have been made. (5) That the words charged to have been sworn to by defendant were not averred to have been sworn to willfully and corruptly (6) That it failed to aver what charge was under investigation. The motion in arrest of judgment was overruled, and the ac- cused was sentencod to make his fine to the United States by the payment of $5, and to be imprisoned at hard labor in the Indiana state prison, south, at Jefl'ersonville, Ind., for the full period of two years from a day named. From that judgment the present writ of error was prosecuted. Samuel McKee, for plaintiff in error. Asst. Att. Gen. Whitney, for the United States. Mr. Justice HARLAN, after stating the facts as above, deliv- ered the opinion of the court. The contention that the indictment was insufficient in law can- not be sustained. By section 4744 of the Revised Statutes, as amended by the act of July 25, 1882, chap. 349, it is provided : " The commis- sioner of pensions is authorized to detail from time to time clerks or persons employed in his ofiice to make special examinations into the merits of such person or bounty land claims, whether pending or adjudicated, as he may deem proper, and to aid in the prosecution of any party appearing on such examinations to be guilty of fraud, either in the presentation or in procuring the allowance on such claims ; and any person so detailed shall have power to administer oaths and take affidavits and depositions in the course of such examinations, and to orally examine witnesses, and may employ a stenographer, when deemed necessary by the com- missioner of pensions, in important cases, such stenographer to be paid by such clerk or person, and the amount so paid to be .allowed in his accounts." Rev. St. § 4744-(22 Stat. 175.) And by section 3 of the act of March 3, 1891, chap. 548, it was pro- vided : " That the same power to administer oaths and take affi- davits, which by virtue of section forty-seven hundred and forty- four of the Revised Statutes is conferred upon clerks detailed by the commissioner of pensions from his oifice to investigate sus- Mabkham v. United States. 75 pected attempts at fraud on the government through and by vir- tue o£ the pension laws, and to aid in prosecuting any person so offending, shall be, and is hereby, extended to all special exami- ners or additional special examiners employed under anthority of congress to aid in the same purpose." 26 Stat. 1083. In view of these enactments, the averment that the oath, charged to have been -willfully and corruptly taken '' before G. C. Loomis, then and there a special examiner of the pension bureau of the United States, and then and there a competent officer and having lawful authority to administer said oath," was sufficient, in con- nection with the statute, to inform the accused of the official character and authority of the officer before whom the oath was taken. It is provided by section 5392 of the Eevised Statutes that " every person who, having taken an oath before a competent tri- bunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, ■declaration, deposition, or other certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and by imprisonment, at hard labor not more than five years, and shall, moreover, thereafter be incapable of giving testimony in any court of the United States until such time as the judgment is reversed." And by section 5396 it is declared that, " in every presentment ■or indictment prosecuted against any person for perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to administer the same, together with the proper averment to falsify the matter wherein the'perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or certificate, other than as hereinbefore stated, and without setting forth the commission or anthority of the court or person before whom the perfury was committed." 76 Federal and State Criminal Eepouter, Vol. I. The requirement tbat it shall be sufficient in an indictment for perjury to setiorth the substance of the offense is not new in the statutes of the United States. It is so provided in the crimes- act of April 30, 1790 (1 Stat. 112, 116, chap. 9, § 18) ; and the latter act, in tlie particular mentioned, was the same as that of 23 Geo. II., chap. 11 (7 British Stat, at Large [Ed. 1769] p. 221). Referring to the English statute, and to the objects for which it was enacted, Mr. Chitty says that the substance of the charge is intended in opposition to its details. 2 Cr. Law 307 ; King v. Dowlin, 5 Term. R 311, 317. Did the fourth count set forth the substance of the offense charged ? It gave tiie name of the officer before whom the al- leged false oath was taken ; averred that he was competent to ad- minister an oath ; set forth the very words of the statement alleged to have been willfully and corruptly made by the accused ; and charged that such false statement was part of a deposition given and subscribed by the accused before that officer and was material to an inquiry then pending before, and within the jurisdiction of, the commissioner of pensions of the United States. The question propounded to the accused, and to which he was- alleged willfully and corruptly to have made a false answer, man- ifestly pointed to an inquiry pending before the commissioner of pensions, in relation to himself as a former soldier in the army ;, that inquiry presumably related to a claim by him for a pension on account of personal injuries received by him in the service ;• and the general charge that the statement was made with refer- ence to a pending inquiry before and within the jurisdiction of, the commissioner of pensions, in connection with the distinct, thougli general, averment -that such statement was material to that in- quiry, was quite sufficient under the statute. Under the plea of not guilty, the government was required to show the materiality of the alleged false statement, and, in so doing, must necessarily have- disclosed the precise nature of the inquiry to which it related. And it may well be assumed, after verdict, that all such facts ap- peared in evidence, and that the accused was not ignorant of the- nature of the inquiry to which his deposition related, and to which the indictment referred. It was not necessary that the indictment should set forth all' Markham v. United States. 77 the details or facts involved in the issue as to the materiality of such statemeat, and the authority of the commissioner of pensions to institute the inquiry in which the deposition of the accused was taken. In 2 Chit. Or. Law, 307, the author says : " It is un- doubtedly necessary that it should appear on the face of the in- dictment that the false allegations were material to the matter in issue. But it is not requisite to set forth all the circumstances which render them material. The simple averment that they were so will suffice." In King v. Dowlin, above cited. Lord Kenyon said that it had always been adjudged to be sufficient, in an indictment for perjury, to allege generally that the particular question became a material question. So, in Com. v. PoWard, 12 Mete. (Mass.) 225, 229, which was a prosecution for perjury, it was said that it must be alleged in the indictment that' the matter sworn to was material, or the facts set forth as falsely and cor- ruptly sworn to should be sufficient in themselves to show such materiality. In State v. Hayward, 1 Nott & McC. 546, 553, which was also a prosecution for perjury, the court, after observ- ing that it should appear on the face of the indictment that the false allegations were material to the matter in issue, adjudged that it was not necessary "to set forth all the circumstances which render them material. The simple averment that they became and were so will be sufficient." Many other authorities are to the effect that the substance of the offense may be set forth, with- out incumbering the indictment with a recital of its details and circumstances. As the count in question set forth the words of the alleged false statement, and thereby made it impossible for the accused to be again prosecuted on account of that particular statement ; as it charged that such statement was material to an inquiry pend- ing before, and within the jurisdiction of, the commissioner of pensions ; and as the fair import of that count was that the in- quiry before the commissioner had reference to a claim made by the accused under the pension laws, on account of personal in- juries received while he was a soldier, and made it necessary to ascertain whether the accused had, since the war, or after his dis- charge from the army, received an injury to the forefinger of his right hand, — we think that the fourth count, although unskill- 78 Federal and State Criminal Reporter, Vol. I. fully drawn, sufficiently informed the accused of the matter for which he was indicted, and therefore met the requirement that it should set forth the substance of the charge against him. It is proper to add that section 1025 of the Revised Statutes, providing that "no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceedings thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant," is not to be interpreted as dispensing with the requirement in in section 5396 that an indictment for perjury must set forth the substance of the offense charged. An indictment for perjury that does not set forth the substance of the offense will not authorize judgment upon a verdict of guilty. Dunbar v. U. S., 156 U. S. 185 192; 15 Sup. Ct. 325. We perceive no error of law in the record, and the judgment is affirmed. Supreme Court of North Carolina. (December 23, 1895.) STATE V. LYTLE. 1. Criminal law— Veniie. Where, under section 1194 of the Code, the indictment charges an of- fense in a certain county, but there is no evidence of venue, the presump- tion is that it was committed in the state. 2. Evidence — Arson — Threats. On a trial for arson, evidence of threats made by defendant to burn the building is admissible to establish motive in a case by circumstantial evi- dence. 3. Evidence — Identity. On such trial, evidence as to identity of the defendant with the persoa committing the crime was held to be admissible. Appeal from a judgment convicting defendant of arson. Adams & Parker, for appellant. The Attorney General and Lock Craig, for the State. State v. Lytle. 7^ FURCHBS, J. — The exceptions not appearing very plainly from the record, it was agreed by the attorney general and Mr. Adams, who represented the defendant, to submit the case on three exceptions: (1) That there was no evidence that the offense charged (burning a barn) was committed in Buncombe county; (2) as to the admission of evidence that defendant had threatened to burn the barn; and (3) the court erroneously allowed the evidence of Dawkins as to seeing defendant the night of the fire. The first exception cannot be sustained. The indictment charged the offense to have been committed in Buncombe county. Defendant pleaded not guilty, and went to trial, and there was no evidence introduced to show that the offense was committed in Buncombe county, or any other county. It was in evidence that it was within eleven miles of Asheville. But we will leave this- evidence out of the case in considering this exception. There was no such point made on the trial; no request that the court should rule upon this question ; no instruction asked as to this point But the question is attempted to be raised by the exception as to the charge of the court that, there being no evidence on this point the court should have directed the jury to return a verdict of not guilty. For this position the counsel for defendant cited State v. Revels, Busb. 200, which tends to sustain his position. And. while this case was decided in 1853, it seems to have been put upon the question of sufficient evidence, and a case in 6 E. C. L. 413, is cited as authority. And the statute of 1844 (Code, § 1194) seems to have been entirely overlooked. This statute reversed the rule which seems to have obtained on trials of criminal cases before its enactment It was intended to do so, and we must hold that it did do so. It provided that it should be presumed that the offense was committed within the county in which the indict- ment charges it to have been committed, and makes it a matter of defense, if this is denied by defendant, to be taken advantage of by plea in abatement, if it is alleged to have occurred in another county of this state, as held in State v. Outerbridge, 82 N. C. 617; or, where it is insisted that it was not in this state at all, it may be shown as a matter of defense under the general issue, as in State V. Mitchell, 85 N. G. 674. These cases clearly establish the rule in such cases, under the statute of 1844, supra, to be a matter 80 Federal and State Criminal Reporter, Yol. I. of defense, and overrde the case of Stave v. Revel, supra. But it was insisted by counsel for defendant that the act of 1844 only made this presumption as to the county in which the offense was committed, and it made no presumption that it was committed within the state. But it would be so illogical to say that it was committed in Buncombe county, which is a part of the state, and then say it was not committed within the state, that we must decline to give this proposition our assent. The second exception cannot be sustained. One Van Allen, among other things, testified that in a conversation with defendant a short time before the burning, in which defendant was complain- ing of the prosecutor Merrill's claiming too much rent, the witness asked defendant what he was going to do about it, when defend- ant replied: "I'll burn it ! I'll burn it ! I'll burn it! " This evidence was objected to by defendant, allowed by the court, and defendant excepted, and cites State v. Norton, 82 N. 0. 628, in support or his exception. But this case is distinguishable from Norton's Case. That was an indictment for assault and battery. There was no dispute as to the parties engaged in the dif&cultj, and it was held to be incompetent, as it could not tend to explain the fight. But in that case it is said that it is competent in cases where it be- came material to show intent. This case is a case of circumstantial evidence. The fact that the barn was burned was not denied. But who did it? was the question. The state alleged that it was the defendant, and offered this evidence as one fact, or link in the chain, connecting the defendant with the burning; that he had the motive which is always considered a leading fact in circumstantial evidence. And in this view threats were allowed to be proved in State V. Rhodes, 111 K 0. 647 ; 15 S. E. 1038 ; State v. Thomp- son, 91 N. C. 496; 1 S. E. 921 ; State v. Gailor, 71 N. C. 88,— all of these cases being for burning houses, and they were all ap- proved by this court. The third exception cannot be sustained. John Dawkins, among other things, testified : " I recollect the night when the barn was burnt. I met a man whom I took to be Lytle. I was in seven step of him, the man whom I took to be Lytle, in the road, near my house. He was a low, chunky man. It was too dark to see whether he was white or black. He had his back to State v. G-adberry. 81 me; had on a dark sack coat. I have known Lytle ten years. Have seen him often. Had I spoken to him, I would have called him Lytle. This was almost 7:30, on the Howard Gap road. This was the night the barn was burnt." This evidence was objected to, allowed, and defendant excepted ; and State v. Thorp, 72 N. C. 186, is cited to sustain the exception. But it will be seen that this case is easily distinguishable from Thorpe's Case. That case holds that a witness should not be allowed to give his " impression as to matters of which he has no personal knowledge" ; that is, he should not be allowed to give the results of his mind — his reason- ing — as evidence, but only the results produced on his senses, as seeing, hearing, etc. In fact, the case of State v. Thorp sustains the ruling of the court, as does also that of State v. Rhodes, supra. It is true that it appears from the evidence sent up that, upon cross-examination by defendant, the witness Dawkins said : " I only judged it was Lytle from his chunky build, and the fact that I had heard he had gone upon the road that day." If this had been the evidence called out by the state under the objection of defendant, we would have held that the latter part of the sentence (" and the fact that I had heard he had gone up the road that day " ) was improper as a means of identifying Lytle. This would have fallen within the criticism of Judge Reade in delivering the opinion in State v. Thorp, supra. But there are two reasons why it cannot avail the defendant here : It was called out by him on cross-examination, and it was not objected nor expected to. Affirmed. Supreme Court of North Carolina. (November 26, 1895.) STATE V. GADBERRY. Ckminal law — HoMicroE — Instructions. Under Act February 11, 1893, it is error to instruct the jury, on a trial for murder, that, if they believe the evidence, the defendant is guilty of murder in the first degree, though defendant offers no evidence, and all the evidence for the state tends to show only murder in the first degree. Fbd. Crim. Rbf., Vol. I.— 11 82 Federal and State Criminal Reporter, Vol. L Appeal from superior court, Yadkin county; BROWN, Judge William Gadberry was convicted of murder in the first degree and appeals. Reversed. The court instructed the jury, after reciting all the evidence that if they believed the evidence to be true beyond a reasonable doubt, the prisoner was guilty of murder in first degree. There were no exceptions to evidence. The court explained to the jury the degrees of murder, and also stated that the credibility of the evidence was a question peculiarly for the jury, and that in a case of this importance the jury should exercise great care, and weigh the evidence well, and be fully convinced of its truth be- fore convicting. A. E. Holton, for appellant. TKe Attorney-General, for the state. FURCHBS, J. — The facts in this case present a very bad tragedy, to use no stronger word. But we have nothing to do with that. This is a court of appeals upon errors of law appearing in the transcript of record. We do not try the prisoner, but simply pass upon the correctness of the trial below. And if we shall find error in the trial below, this does not acquit the prisoner, but only sends the case back for another trial. The state intro- duced evidence showing the homicide, that defendant was the author of the homicide, and the attending and surrounding circum- stances, and rested the case. The defendant introduced no evi- dence, and the court charged the jury, if they believed the evidence, the defendant was guilty of murder in the first degree. This charge is the error assigned and complained of by the defendant. The evidence, as the case comes to us, would have been suffici- ent to have authorized the court to instruct the jury that if they believed the evidence it would, be their duty to find the defendant guilty of murder, prior to the act of the 11th of February, 1893 (Acts 1893, p. 76), and guilty of murder in the second degree under this act. But this act created an era in the law of homicide in this state. Before that time we had but one offense of murder, and the penalty for this offense was death. But the act of 1893 divided murder into two degree, first and second degrees This State v. G-adberby. 83 act continues the death penalty as to the first degree, but makes the penalty for murder in the second degree imprisonment in the penitentiary for not less than two and not more than thirty years. It enacts in section 1: "All murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpretration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed to be murder in the firt degree and shall be punished with death." Section 2: "All other kinds of murder shall be deemed murder in the second degree and shall be punished with imprisonment of not less than two, nor more than thirty years in the penitentiary." Section 3: "* * * But the jury before whom the offense is tried shall determine in their verdict whether the crime is murder in the first or second degree." This statute being of recent date, we have had but few cases before use invol- ving its construction. Many of the states of the Union had pre- ceded us in enacting this and similar statutes ; Pennsylvania being the first. She passed a statute, from which ours is taken, and very nearly, if not entirely, the sarrie as the Pennsylvania statute of 1794. The fact was called to our attention on the argument both by the attorney general and Mr. Helton, who argued the case for the defendant. And as the Pennsylvania statute had often been before the Pennsylvania c'ourts for construction, — which court is recognized as one of the ablest in the Union, — we were recom- mended by both these attorneys to consult the Pennsylvania re- ports, and both cited us to Pennsylvania decisions and construing their statute. The attorney general referred to the case of Com. v. Smith, m 2 Serg. & E. 300, decided in 1816, which seems to sup- port his contentions ; while, on the other hand, the counsel for the defendant cited Lane v. Com., 59 Pa. St. 371, delivered in 1868. This case to have been thoroughly considered ; and from the fact of the high standing of the court, as well as the fact that we were referred specially to this court for aid in construing our statute, which is almost, if not identically, the same as theirs, and from the further fact of the great similarity in the facts and the charge of the court in that case to ours, we are induced to make several quotations from that case. The defendant in that case was in- 84 Federal and State Criminal Reporter, Vol. L dieted for the murder of his wife, and " the commonwealth gave evidence that the deceased died by means of poison, and that it had been administered to her by the prisoner." The court charged tlie jury, "If your verdict is, 'Guilty of murder,' you must state 'of the first degree'; if 'Not guilty,' you say so, and no more." The jury returned a verdict of murder in the first degree. The prisoner sued out a writ of error, and the supreme court delivered thereon the opinion from which we are quoting. The court say, in discussing this charge: " Hence it would seem to be more than ever material that the jury be charged with the responsibility and duty of finding the degree. That it is a material fact to be found is not to be denied or doubted. The statute makes it so, and with it all our decisions accord. But it is argued that, where the facts bring the case within either of the killings declared murder in the first degree, it being the duty of the jury to find a verdict in ac- cordance therewith, a peremptory direction to find that degree is proper and right. To admit this would be to determine that this portion of the verdict is matter of form, and to substitute a court to do that which the law says the jury shall upon their oaths do. * * * Many men have been convicted of murder in the second degree who, really guilty of a higher crime, would have escaped punishment altogether but for the distinction in degrees so care- fully committed to juries by the statute." In Rhodes v. Com., 48 Pa. St. 396, the theory of the prosecution was that the murder was committed by the prisoner in perpetrating the crime of robbery, for the prosecutor's house was robbed that day ; and the prosecu- tion claimed a conviction on that ground; and the judge, in his charge to the jury, used almost the same language which the judge did in this case. The language was : " If you find the defendant guilty, your verdict must state, ' Guilty of murder in the first de- gree, in the manner and form as he stands indicted.' If not guilty, your verdict will simply be, 'Not guilty.' " The same reason was urged in the justification of this instruction as was urged here ' namely, that the evidence exhibited a case of robbery by the hatids of the prisoner, and therefore it must be murder in the first degree, if anything. For so instructing, that court felt constrained to re- verse the sentence. WOOD, 0. J., after noticing the change made by the statute in the common law in respect to degree in murder. State v. Gadberry. 85 and the duty of tbe jury under the statute to find the degree, said i " Yet the judge assumes the province of the jury, and ascertained the degree in this instance, though this was a conviction by trial, and not by confession. Nothing less can be made out of his words, 'If you find the defendant guilty, your verdict must state "Guilty of murder in the first degree."' Was this leaving the degree to the jury to find ? Most clearly not. It excludes all chance of deliberation on the degree, and left to them only the question of guilty or not guilty. It is vain to argue that the judge was more competent to fix the degree than the jury, or that the circumstances proved the crime to be murder in the first degree, if murder at all ; for the statute is imperative that commits the degree to the jury. It was proper for the judge to advise them of the distinction between the degrees, to apply the evidence, and to instruct them to which of these degrees it pointed. But to tell them they must find the first degree was to withdraw the point from the jury, and decide it himself. * * * The charge be- ing intended to be peremptory, * * * we think it impinged too strongly on the province of the jury. It did not leave them free to deliberate and fix a degree. * * * The judge decided it, and not the jury. ■>• * * The court always leaving them [the jury], however, free to deliberate upon and the duty and re- sponsibility of finding the degree, if they convict." So we see that, so far as the case of Lane v. Com. is concerned, it settles this case, if we adopt it as authority. And while we do not feel bound to do this, we see no reason why we should not It is construing a statute identical with ours. It is from a court of high authority and appears to have been well considered and well discussed. We have no opinions of our own in conflict with it In fact the prin- cipal case we have where this statute is discussed (State v. Fuller, 114 K 0. 885; 19 S. B. 797), so far as it goes, is in harmony with the reasoning in this Pennsylvania case. The reasoning, to our minds, is so clear and sound, we feel no hesitation in adopting it, which we do, and it disposes of this case. It fully covers both views of it presented by the attorney general, — that the court be- low should be sustained because it appeared the prisoner was in the act of committing another felony, to wit an abduction of the deceased at the time the homicide took place, which put the case 86 Federal and State Criminal Eeporter, Yol. I. within the first degree ; and secondly, that the jury would have found the same issue from the evidence if the court had left it to them to determine. But we see from the reasoning in Lane's Case, supra, that neither of these positions can be sustained. The statute in our state, as it does in Pennsylvania, by express terms confers this duty upon the jury to determine the degree, and it cannot be taken from them by the court. There were other views of this case presented by the defend- ant, but, being so well convinced that the consideration of the construction of the statute determine the case, we have not thought it necessary to enter into a discussion of them. There is error, and a venire de novo is ordered. AVERY, J. (concurring). — It must be admitted that if the members of this court were jurors, impaneled to try the prisoner upon the testimony offered in the court below, and considered the witnesses worthy of credit, they would not hesitate to concur in declaring the prisoner guilty of murder in the first degree. Re- volting as his conduct seems to have been, and probably was, if the able judge who presided had, after learning of the facts from a preliminary examination upon a writ of habeas corpus, held that the prisoner was so clearly guilty of murder in the first de- gree that he would hear the evidence himself without impaneling a jury, and pronounce the sentence of the law upon him, the aver- age citizen, regardless of his knowledge of the forms and technic- alities of law, would understand that the fundamental right of trial by jury, acquired at the cost of blood and treasure, had been wantonly violated. The most unlearned and inexperienced of our people know that the constitution (article 1, § 13) provides that no person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men, in open court. The legislature, as it was authorized to do, and as every other legisla- ture which has enacted a statute grading homicides has done, pro- vided that the "jury before whom the offender is tried shall de- termine in their verdict whether the crime is murder in the first or second degree." The language of our statute (Code, § 413) is equally explicit in declaring that "no judge in giving a charge to the petit jury in a civil or criminal action shall give an opinion State v. Gadbekry. 87 whether a fact is fully or sufficiently proved, such matter being the true office and province of the jury, but he shall state in a plain and correct manner the evidence given in the case and de- clare and explain the law arising thereon." The law provides plainly, first, chat the jury have the exclusive right "to determine in their verdict" the grade of the homicide; and second prohibits the judge, in terms quits as unmistakable, from telling the jury whether any fact is fully or sufficiently proved. We have decided (State V. Fuller, 114 N. C. 885; 19 S. E. 797), as has every re- spectably court in the United States where a similar statute has been passed, that when it is proved or admitted that the accused killed with a deadly weapon, the common law raises, if any at all no more serious presumption than that the prisoner is guilty of murder in the second degree, but that it is the province of the jury to say whether they will, from the testimony, draw the infer- ence that the prisoner premeditated the killing. The solution of the question whether the killing was premeditated involves a finding of what was the purpose in a person's breast, to be gathered as an inference from his acts. The law declalres that the jury shall determine (upon finding the intent or purpose of the prisoner from the evidence as to his conduct under the definition of murder in the first and second degrees given them for their guidance by the court) how they will classify the offense. The law limited the authority and duty of the judge to defining the grades of homicide, and pointing to the evidence relied upon to establish guilt of either. Instead, however,of telling the jury that it was their province to determine under his explanation of the law whether the prisoner, for however short a time, entertained the preconceived purpose to kill, he assumed the authority to de- cide what the law gave the jury the exclusive right to determine. He told the jnry, when the law prohibited his doing so, that the proof was sufficient to make it their duty to return a verdict of guilty of murder in the first degree. If it became necessary for the jury, before fixing the grade, to inquire whether they were warranted in inferring from the evidence that there was a previous purpose to kill, the judge violated the statute when he told them that a purpose to kill was to be irresistibly inferred, or was fully or sufficiently shown by testimony as to any conflict, however 88 Federal and State Criminal Eeporter, Vol. I. outrageous. If, upon tbe suggestion of the attorney general, we attempt to snstain the instruction upon tlie idea that the evidence tended to show an attempt on the part of the prisoner to abduct the deceased, the same insurmountable difficulty presents itself. We cannot repeal, and the judge below could not disregard, the plain provision of law that the jury must fix the grade. In the discharge of that duty it necessarily became their province to in- quire and ascertain whether the evidence of the conduct of the prisoner convinced them of his purpose to abduct. If the lan- guage of the judge is to be construed as meaning that the jury must infer a purpose to abduct, — of the existence of which it was their exclusive province to judge, — then he violated the statute in expressing the opinion that the intent to abduct was fully proved. No principle is more clearly established than that, where guilt depends upon intent, a special verdict which omits to find the in- tent is imperfect, and no judgment can be pronounced upon it. If, in this case, the jury had been permitted to return as a special verdict the testimony of the motlier of the girl, with all of its re- volting details, bat had failed to add that they found either that the prisoner had killed in the execution of a premeditated intent or that his purpose in driving the girl before him was to abduct her, it is settled law that the court could not pronounce judgment. State V. Blue, 84 K C. 807; State v. Oakley, 103 id. 408; 9 S. E. 575; State v. Curtis, 71 N. C. 61; State v. Lowry, 74 id. 121 . In State V. Bray, 89 N. C. 481, tbe court said : " The special verdict is defective, in that the intent is not found as a fact There may be evidence of intent but the fact is not fouud by the jury. * * * The jury must find the fact from the evidence before them, and the intent is a question for the jury. * * * Whether, if the fact of felonious intent were found in the special verdict, the facts would constitute the offense of larceny. * * * is a question we are not called upon to decide." So in our case the judge would not have invaded the province of the jury, but would have avoided the error into which he has fallen, liad he told them that if they should find from .the testimony there was either a pre- meditated intent on the part of tbe prisoner to Mil, or that he killed while he was attempting to carry out a purpose to abduct they would be warranted in returning a verdict of guilty of mur- State v. Gadbebry. 89 der the first degree; but, if they were not satisfied as to the exist- ence of either the premeditated purpose to kill or the intent tO' abduct, and they believed that he killed with a deadly weapon, then the law raised a presumption of guilt of murder in the second degree, and that presumption had not been rebutted, he would have avoided the error into which he has fallen. If a special verdict would be fatally defective because the jury, in the exercise of their exclusive right, failed to find the existence of the essential element of intent in abduction or the preconceived pur- pose in order to constitute the highest grade of homicide, then it would seem to follow inevitably that the judge has no more right, to find the intent for them before than after they have considered and passed upon the testimony. It be true that whatever the intent is of the essence of the offense, and the jury fail in a special verdict to state specifically that there was a criminal intent, the judge is not at liberty to supply the defect before stating the con- clusion of the law, surely, when the jury retain the right to state the verdict in the shape of a conclusion, he cannot do before what he could not do after, — assume that the facts proved a guilty intent. My Brother FlIRCHES has cited cases exactly in point from the court of the state where the statute originated, and in which the opinions rest upon the fundamental principles to which I have adverted. I have ventured to discuss the question upon the rea- son of the thing as it would be presented if no authority could be- adduced from aboard. We are not acting as arbitrators, nor as- citizens susceptible to the influence of the public indignation ma- turally aroused by such conduct as is attributed to the prisoner, but as a court supposed to bold the scales of justice too high tO' be shaken in our purpose by even our own abhorrence of cruelty. To sanction the mistake of a nisi prius judge who may have been swept from his moorings by listening to testimony which could scarcely fail to excite disgust at least would probably be to en- danger the safety of some other prisoner around whom a network of false testimony may be woven^ and whose only safety may lie in the discrimination of an intelligent jury of the vicinity. If a trial judge has the right to draw inferences for the jury, the safe- Fed. Grim. Rep., Vol. I.— 13 90 Federal and State Oeiminal Eeporter, Vol. I. guard thrown around accused persons, as well as parties to civil actions, is destroyed. I concur fully in the conclusion of the court, and have deemed it wholly unnecessary to add anything to the clear and full discussion of authorities by Justice FUECHES. CLAKK, J. (dissenting). — The exact point presented in this •case has been recently decided in State v. Gilchrist, 113 N.C. 673; 18 S. E. 319, construing the act of 1893 (chapter 85) "dividing the •crime of murder into two degrees." In that case the judge •charged in almost the very words used by the judge in this, tell- ing the jury that the prisoner, upon the evidence, was " guilty of murder in the first degree or of nothing." This was approved by the unanimous opinion of this court, and there is nothing in the present case which calls upon the court so soon to ignore its own decisions to follow the unsettled construction of the Pennsylvania courts upon a somewhat different statute. To the same effect are three decisions upon chapter 434, Acts 1889, dividing the crime •of burglary into two degrees, in which the identical words are used as to the duty of the jury, as in tlie act dividing the crime •of murder, and are construed as in State v. Grilchrist, supra. In State V. Fleming, 107 K C. 905; 12 S. E. 131 (on page 909, 107 N. C, and page 131, 12 S. E.), the court holds that this does not give the jury the discretion to convict of the second degree, but the conviction should be in the first or second degree, according to the evidence ; and the court should instruct what degree of burglary a given state of facts would be, if found to be true. This was cited and approved in State v. McKnight, 111 N. C. •690; 16 S. E. 319, in which it is held (opinion by Shepherd, C. J.) that the court did not err in refusing to charge that the de- fendant could be convicted of a lesser grade of burglary than in tlie first degree if they believed the evidence. In the charge there approved the court instructed the jury that, if certain evi- dence was believed, they should convict of burglary in the first degree, and, if it was not believed, not to convict of burglary at .all. The same authority was cited again in State v. Alston, 113 N. 0. 666; 18 S. E. 692, the court holding that the judge prop- •erly should have instructed the jury as was done in the present •case. The court below therefore followed the uniform decisions State v. Gadberry. 91 ■of this court upon an exactly similar statute, which ruling is sus- tained by the almost uniform decisions of the courts of other states upon similar statutes. There are repeated decisions in our ■court, not resting upon the presumption from the use of a deadly weapon, approving a charge, ''If the jury believe the evidence the defendant is guilty of murder." Among these it is sufficient to refer to State v. Baker, 63 N. 0. 276. His honor did not in- struct the jury to convict, but simply told them that this state of facts, if found beyond a reasonable doubt to be true, would con- stitute murder in the first degree ; just as he would have gone on, if there had been conflicting evidence, to instruct them that an- other state of facts, if believed, would have constituted murder in the second degree, and still another, manslaughter. There being but one state of facts in evidence, the court, after " explaining to the jury the degrees of murder, and that the credibility of the witnesses was peculiarly for the jury, and that in a case of this importance the jury should exercise great care, and weigh the evidence well, and be fully convinced of its truth before convic- tion," instructed the jury that this state of facts, if fully believed, would make the prisoner guilty of murder in the first degree, and, if not believed, the prisoner should be acquitted. The jury found the uncontradicted testimony to be true. If these facts ■constitute murder in the first degree, his honor committed no error in telling the jury so. If these facts do not constitute murder in the first degree, then his honor erred in instructing that they did. There is nothing else in the case. Now, what is the undisputed and uncontradicted state of facts which the jury have passed upon by their verdict, and found to be the truth. Succinctly stated, it is this : The deceased, ac- cording to her mother, about ten to twelve years old, and, ac- cording to the physician, apparently fourteen, being "well de- veloped," was sister to the prisoner's wife, and been living with them in Virginia. For some reason she returned home to her parents about last Christmas, and in February last the prisoner •appeared at their house, and spent Sunday night. He wished the little girl to fondle his head, and on her refusal struck at her with a razor, and swore he would kill her. He was armed with a pistol, razor, and knife, and, firing off his pistol, swore that the 92 Federal and State Criminal Reporter, Yol. I. girl should go back to Virginia with him, or he would kill her. On Monday the prisoner stated to tlie girl's brother, in the woods, that he " intended to make Tessie [the deceased] go off with him, or it would go Iiard with her." On Tuesday the priso- ner came back with his pistol, asked if the girl had returned. Wlien she came up she attempted to run, and the prisoner fol- lowed her, grabbed her by the arm, and pushed her at arm's length in front of him, pulling out his pistol, and trying to carry her off. She appealed to her mother, weeping and beseeching her not to let the prisoner carry her off. The mother called the child's father to assist her in preventing the abduction. The father came from the field to rescue his child, armed with some rocks. The prisoner advanced on him with his drawn pistol, an the perpetration of or in the attempt to perpetrate * * * a felony shall be deemed murder in the first degree." It is not State v. Gadberry. 93 necessary to dwell upon the attorney general's second ground, — that the crime, having been committed in an attempt to commit abduction, which is a felony, was necessarily murder. That the prisoner was attempting to take the^ young girl from the care of her parents for purposes of lust is an infersnce which the jury might have been justified in drawing, but that the killing was, in the language of the statute, "wilful, deliberate and premeditated," is not an inference, but the necessary consequence, the very fact itself, which the jury found when they found the above state of facts to be true. In State v. Norwood, 115 N. C. 789; 20 S. E. 712 (since the act of 1893), the presiding judge refused, though requested by written prayers, to submit the phases of murder in the second degree or manslaughter (and they were not even prayed for in the present case), but told the jury that ''premedi- tation did not require any considerable length of time ; and if the prisoner, after conceiving the purpose to kill, immediately carried the resolve into execution [there being in that case, as in this, no provocation or heat of passion], malice would be pre- sumed, and the premeditation contemplated by the statute would be shown." This court, sustaining the charge, said : " If it is shown that the prisoner deliberately determined to take the child's life by putting pins into its mouth, it is immaterial how soon, after resolving to do so, she carried her purpose into exe- cution." In State v. McCormac, 116 N. C. 1033; 21 S. B. 693, the court again say : "It is not essential that the prosecution, in order to show prima facie premeditation and deliberation on the part of a prisoner charged with murder in the first degree, should offer testimony tending to prove a preconceived purpose to kill, formed at a time anterior to the meeting when it was carried into execution." A prima facie case is one which is conclusive un- less evidence, from which a different conclusion may be reason- ably drawn, appears somewhere in tl;ie case. Aside from the previous threats shown in the present case, the prisoner placed his pistol at the back of a defenseless girl, who was offering no resistance, save her cries for help. There was nothing to show that he acted thus to defend himself from her, nor as in the heat of a contest with an opponent under circumstances which could mitigate the offense to manslaughter or murder in the second 94 Federal and State Criminal Keporter, Vol. I. degree. He placed his pistol at her back, blew a hole in her and ran off into the woods. This is not the presumption arising^ from the use of a deadly weapon, but here the naked facts them- selves, unless added to, are susceptible of no other interpretation, when found to be true, than that the killing was " willful and deliberate," and hence murder in the first degree. If the jury found these facts to be true (as they did), they would not have been warranted in justice in finding the prisoner guilty of murder in the second degree or or manslaughter. As they could not justly have done so, his honor committed no error in not submitting those phases to them, and in telling them that if this state of facts was, beyond reasonable doubt, the truth of the oc- currence, it constituted murder in the first degree. There are decisions under the Pennsylvania statute which di- rectly sustain the charge of the court below in this case. Ees- publica V. Mulatto Bob, 4 Dall. 145; Com. v. Smith, 2 Wheeler, Cr. Cas. 79. And there is a Pennsylvania case apparently con- flicting with these cases, but which can be readily distinguished. It would be a useless labor, however, to consider and reconcile Pennsylvania decisions, — which are not always reconcilable, — and that task can best be left to the court that made them. But one thing is clear beyond all technical and skillfully drawn dis- tinctions, and that is, by our law the willful, deliberate killing of a human being is still murder in .the first degree ; and, taking the facts of this case as a jury have found them, the prisoner will- fully, deliberately, without provocation or legal cause to excite his anger against her, placed his pistol at the back of a defense- less girl, whom he was trying to carry away from her home, against her cries for help, and the efforts of her father to save her, and the shrieks of her mother, and in in cold blood shot her to death. This is still murder in North Carolina, and of the kind for which the perpetrators can be hung. These facts can admit of but one inference, and, that being so, his honor committed no- error in telling the jury, if they found beyond all reasonable doubt that such were the facts concerning the killing, they should find the prisoner guilty of murder in the first degree, and no lesser offense. State v. Gadberry. 95 MONTGOMERY, J. (dissenting). The crime of murder, by the act of 1893 (chapter 85), is divided into two degrees. Sec- tion 1 provides that : "All murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture or by any other kind of willful, deliberate and premeditated kill- ing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony shall be deemed to be murder in the first degree and shall be pun- ished with death." Section 2 makes all other kinds of murder murder in the second degree, punishable by imprisonment. Sec- tion 3 declares that : "Nothing herein contained shall be con- strued to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree." In North Carolina, pre- vious to the enactment of that statute, if a person killed another without any, or upon slight, provocation, as for offensive words? for instance, or with an excess of violence out of all proportion to the provocation, the law placed him on the same plane as it did the murderer who had deliberately planned and executed a kill- ing from a long-cherished feeling of revenge, or by waylaying for the purpose of robbery. The rule was that, where the killing was proved, malice was always presumed ; and where there was malice the law declared the homicide to be murder, and the punishment death. It was to do away with this forced and artificial conclu- sion which the law drew of the equal guilt of the man who had committed a homicide on a sudden heat without malice in fact, even though done without provocation, and of the man who had deliberately, willfully, and premeditately planned the killing for revenge or greed. The statute was enacted to afford a more ra- tional rule for the trial and punishment of him who had commit- ted a homicide on the impulse of the moment, and without malice in fact, and not to take from out the common-law rule a killing where, by undisputed testimony, it was proved to have been done under circumstances of threats and preparation and deliberation. It was not intended that it should be left to the jury to determine judicially the effect of such testimony, but that they should, as formally, pass upon its credibility, leaving it 1)6 Federal and State Criminal Eeportee, Vol. L to the court to instruct them as to its legal effect. If, in a case where the crime has been committed since the enactment of the statute, the state should show that the killing was sudden, and without provacation, and no more appears, the accused cannot be convicted, as under the old law, of murder in the first degree, but only of murder in the second degree, though a deadly weapon was used. But, if the testimony is undisputed and uncontra- dicted, and goes to show the killing by any of the means named in section 1 of the act, the rules of the common law ought to apply. The judge out to instruct the jury that they are to con- sider thoroughly the credibility of the testimony, and that, if they believe it to be true beyond a reasonable doubt, they should render a verdict of guilty in the first degree. In cases like the one before the court the language of the act, which reads, " but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second de- gree," ought not, in my opinion, to be construed to mean more than that the jury shall, under proper i nstructions from the court upon the character of the testimony, consider it simply in the light of its credibility, and return their verdict as they would do in all other cases where the testimony was undisputed, and where they had received instructions from the court as to the legal bearing and effect of such undisputed testimony, should they find it to be true. This construction is strengthened when it is noticed that the words which declare the duty and power of the jury under this statute stand in direct connection with, and in the same sentence with, that part which treats of the nature and form of the bill of indictment. Chapter 434 of the Acts of 1889 divides burglary into two degrees, first and second, — the first punishable with death, the second by imprisonment ; and section 3 of that act reads as fol- lows : " That when the crime charged in the bill of indictment is burglary in the first degree the jury may render a verdict of guilty of burglary in the second degree if they deem it proper to do so." The last-named section seems upon its face to give the jury broader latitude in making up their verdict than is conferred upon them in the act dividing murder into two degrees. This court has passed upon the burglary statute several times, and I State v. Gadberry. 97 believe it has sustained me in the view I have expressed in this, opinion. In State v. Fleming, 107 K 0. 905 ; 12 S. E. 131, the defendant was indicted for burglary. On the trial frhe court charged the jury that certain facts testified to amounted in law to a sufficient " breaking " if they believed the evidence ; and this court sustained the charge. It is true, the bill of indictment was, in form, under the common law ; but this court said further in that case : " We do not understand the provision of the statute that on an indictment for burglary in the first degree ' the jury can return a verdict of burglary in the second degree if they deem it proper so to do' to make such verdict independent of all evi- dence. The jury are sworn to find the truth of the charge, and the statute does not give them a discretion against the obligation of their oaths." In State v. McKnight, 111 K C. 690 ; 16 S. E. 319, an indictment under the statute of 1889 for burglary in first degree, the house broken into was an inhabited dwelling house, and the accused admitted that he had broken into and taken money therefrom. The counsel for the defendant asked the court to instruct the jury that- they might convict for a lesser offense than that charged in the bill of indictment, as provided in section 906 of the Code. The instruction was refused and this court said, in substance, that there was no error in the refusal, for the only question to be determined by the jury was whether it was done in the nighttime ; the prisoner having admitted the breaking and entering and the taking of the money. If it was done in the nighttime, it was burglary in the first degree. In State V. Alston, 113 N. C. 666 ; 18 S. E. 692, the defendant was indicted for burglary. The charge of his honor to the jury was that, " although all the evidence was that the family was present in the house" at the time the accused was charged to have broken into it, they might find him guilty of burglary in the first degree or guilty in the second degree. This court said in reference to that charge : "The court should have charged the jury that if they believed from the evidence that the family was present in the house at the time of the felonious entry as charged, they should convict the defendant of burglary in the first degree. Under such circumstances the jury are not vested with the dis- Fed. Crim. Rep., Vol. I. —13 98 Federal and State Criminal Reporter, Vol. L cretionary power to convict of burglary in the second degree. The power to commute punishment does not reside with the jury." The court further said, in substance, that it would have been improper for his honor to have instructed the jury that all the evidence was that the family was in the house at the time of the felonious entry, and that they should find the defendant guilty of burglary in the first degree, that it was only where the jury believed that the family was in the house to be a fact that they could have returned such a verdict. The jury must first pass upon the credibility of the evidence. In the case now before the ■court, the accused, on his trial, offered no testimony. That which was ofiiered by the state was undisputed and consistent. The substance of it was that the deceased, who the mother said was about ten or twelve years old, and the physician who attended her said was about fourteen, and well developed, was a sister of prisoner's wife, and had lived with them in Virginia a short while — for a part of the year 1894, — returning to her home in Yadkin county about Christmas of that year. On Sunday night before the homicide, which occurred the following Tuesday (16bh Feb- ruary, 1895), the accused arrived at the home of the deceased, from Virginia, armed with a pistol, razor, and a knife. He in- eisted that the deceased should fondle his head, and upon her re- fusal, slashed at her with his razor, and swore he would kill her. He then fired off his pistol, and swore that the deceased had to go to Virginia with him, or he would kill her. She said she did not intend to go. He left that night, but returned on the next day, — Monday, — and told her brother that "he intended to make Tessie (the deceased) go off with him, or it would go hard with her." On Tuesday he returned, and, seeing the deceased, he drew his pistol. She tried to escape from him ; and ran to her mother, but her "grabbed " her and pushed her up the road. The mother called the father, at work in a field near by, who, upon his coming near saw the situation, and began to gather stones, which the accused noticing, he leveled the pistol at the father, and, still holding the child, drove him behind a house on the roadside. The mother crying for the help of neighbors, and the girl begging for help from.her brother and father, and imploring them not to let the ac- cused carry her off, the prisoner placed his pistol immediately EoBiNsoN V. People. 99 tipon the back of the deceased, and fired it, inflicting a wound from which she died two days afterwards. He fled into the woods after he had shot her. He was sober. There was no exception to the testimony, and, as stated before, he offered none. What was there to submit to the jury except the credibility of the testi. mony ? The facts, if believed, constituted in law premeditation and malice. The case was well argued by the attorney general, and by Mr. Holton for the prisoner. The decisions of the court of Pennsylvania were relied upon by both to help sustain their several viewa The Pennsylvania statute is like ours, and was the first of the kind enacted in the States. That court, in the earlier cases on that statute, put the construction on it which I contend for here. Later decisions of that court have reversed the former ones, and this court, in the opinion filed in this case, has followed the later Pennsylvania cases, without, I think, giving due weight to our own decided cases in reference to statutes similar in nature to the one under consideration. His honor instructed the jury, after reciting all the evidence, that if they believed it to be true beyond a reasonable doubt, the prisoner was guilty of murder in the first degree This was, in substance, the charge which the court gave in State v. Gilchrist, 113 N. C. 673 ; 18 S. E. 319, and which on appeal was approved. I think there was no error in the charge. Supreme Court of Illinois. (November 25, 1895.) EOBINSON v. PEOPLE. EvTOBNCB— Confession. A confession can never be received in evidence when the prisoner has been influenced by any threat or promises. So held, ■where a person accused of crime was promised by the state's attorney that, if he would 100 Federal and State Criminal Eeporter, Vol. I. make a written statement of the facts, it should not be used again st him, hut, after he did so, the state's attorney was not satisfied witli the state- ment and asked him to come to the latter's office, and 'make an oral state- ment, which the accused did under the belief that it would not be used against him. Appeal from a judgment convicting defendant of burglary. Grier & Stewart, for plaintiff in error. M. T. Moloney, Atty. Gen., for the People. Baker, J. — In January, 1894, the barn of one John Gabby was burglarized, and certain harness and other property stolen there- from. At the May term, 1895, of the Warren circuit court, Wil- liam Robinson, the plaintiff in error, was indicted for the offense, and a jury trial resulted in his conviction, and he was sentenced to the penitentiary for the term of one year. The only incriminat- ing testimony against him was a certain alleged confession made by him to the state's attorney of the county, and testified to by A. B. Holliday, a police officer ; and this testimony was admitted in evidence over his objections and exceptions. The confession in question was obtained under, substantially these circumstan- ces: About the last of April or first of May, 1895, it was suspected by the state's attorney, by said Holliday, and by Pershin, a deputy sheriff, that plaintiff in error and certain other persons had committed the crime ; and they procured the ■ arrest of plaintiff in error, who was then sick in bed, and had him placed in the custody of an officer. The state's attorney induced Samuel Robinson, a brother of plaintiff in error, to procure from plaintiff in error a written statement of the supposed facts of the transaction, promising him that plaintiff in error should not be prosecuted if he would tell everything he knew about the matter, and that he would not use such written statement in evidence against him. These promises were communicated by Samuel to his brother. Samuel then took down in writing the statement made by plaintiff in error, and there was placed at the head of the statement a provision that it was not to be used in evidence. The state's attorney was not satisfied with this written statement, and expressed a wish to have a personal interview with plaintiff in Robinson v. People. 101 error, so that he " could draw out what he was after." Samuel arranged for the interview, telling his brother that what he told the state's attorney " would be with the understanding that it should not be brought up against him in court." The state's at- torney called Holliday in to hear the conversation with the pris- oner; and it is the conversation that then took place that was intro- duced in evidence. It seem that, upon the prisoner's being taken to the office of the state's attorney, he immediately began making his statement, and that, after he had finished making it, the state's attorney told him that if he would go before the grand jury, and testify to what he had just said, and tell the same story on the trial of the case, he should not be punished ; and the prisoner agreed to do so, but afterwards refused to testify against the others charged with the ofiEense. The matter of this latter arrangement is of no importance in the decision of the question now before us. The confession or admis- sion that was introduced in evidence had been fully made and completed before the making of such arrangement, and, as matter of course, was not induced thereby ; and there is no occasion for settling the conflict between the testimony of Samuel Robinson and the state's attorney as to inducements being held out, and promises made, in the coversation that occurred between them after the written statement had been obtained that led up to the personal interview between the state's attorney and the prisoner. The latter testified : " I had a conversation with the state's attor- ney and Mr. Holliday at the state's attorney's office. I was told to go in there, and make a statement, and anything I said would not be brought in evidence against me. That is the way I came to make it. My brother Samuel told me that." As we under- stand the testimony of the state's attorney, he does not deny the inducements alleged to have been held out, and the promises al- leged to have been made, prior to the time the written statement was procured, but that he merely denies having made the similar promises that Samuel Robinson testifies were made subsequent thereto, and prior to the personal interview between the state's at- torney and the prisoner. The former constituted Samuel Robin- son his agent to communicate the inducements and promises to the prisoner, and they were so communicated. The written state- 102 Federal and State Criminal Eeporter, Vol. L ment was thereby iaduced. The promises and inducements were not afterwards withdrawn. The surrounding circnmstances and the direct evidence clearly indicate that the subsequent oral state- ment was made by the prisoner with the understanding that the inducements offered and promises made in the first instance ap- plied as well to the oral as to the prior written statement ; and the evidence shows that the police officer and the deputy sheriff so understood it Holliday testifies: "I understood that Eobinson was to tell his story, and he was to be indemnified ; was not to be prosecuted if he would tell his story. That was the fact as I un- derstood it I understood he was telling what he told under that sort of a promise, but nothing was said. I understood he was telling under a promise of that kind, because I had talked with the state's attorney. All I know about the arrangement is what I was told by the state's attorney. He told me about the previous ar- rangement" Pershin testifies : " The understanding I had was that any evidence he would give would not be used in court Had that understanding at time written statement was shown me. The substance of what the state's attorney said to me was that any statement he should make would not be used as evidence against him in court I don't know that it had particular reference to the written statement The talk with the state's attorney was at dif- ferent times." The rule is that a confession can never be received in evidence when the prisoner has been influenced by any threat or promises, for the reason that the law cannot measure the force of the influ- ence used, or decide upon its effect on the mind of the prisoner, and therefore excludes it if any degree of influence has been ex- erted by any person having authority over the charge against the prisoner or over his person. Austin v. People, 51 111. 236 ; 1 &reenl. Bv. sections 219, 222 ; Starkie, Bv. 36. Bartley v. Peo- ple, 156 111. 234, 40 N. E. 831, does not establish any different rule. We there said that the confession becomes incompetent wherever any degree of influence has been exerted, because the law presumes that it was prompted by that influence. That case is plainly distinguishable from this. There were there facts to show that the confession was voluntarily made. There the defend- ant had not been arrested, or even publicly accused of the crime ; Robinson j;. People. 103 and he of his own accord sought the opportunity to talk with the prosecuting witness in regard to the crime, and with the manifest intention of making a confession, and promising to return the stolen money. Here, on the other hand, the confession and the implication of others in the commission of the crime were clearly induced by hope and the promises that the prosecution against him should be dropped. It was error to admit the confession in evidence. For that error the judgment is reversed. The cause is remanded. Reversed and remanded. NOTE ON CONFESSIONS. WHAT ARE. — A voluntary confession is one proceeding from the spontaneous suggestion of the party's own mind, free from the influence of any extraneous disturbing cause. People v. McMahon, 15 N. Y. 384 ; People v. Chapleau, ante. A statement by accused that he knows who committed a crime, and that he was present when another person (naming him) com- mitted it, is not a confession. Bell v. State (Gra.), 19 S. B. 244. Statements made by defendants, indicted together for murder, in which each accused the other of the crime without inculpating himself, and which did not refer to anything done in common as charged, are not admissible as confessions. State v. Carson (S. C), 15 S. E. 588. Or) a trial for arson, declarations by accused designed and tend- ing to explain his possession of some of the goods which were in burned building immediately preceding the fire, and his knowl- edge touching the whereabouts and the possession of other parcels of the goods, were in their inculpatory tendency criminating ad- missions, as distiniguished from confessions. Fletcher v. State (Ga.), 17 S. B. 100 ; see, also. State v. Carson, 36 S. C. 524. In a prosecution for tearing up a railroad track so as to throw off the cars, defendant's admissions that he was with one who broke open a tool house, took out tools, and therewith wrecked the train, in order to rob the dead, are a confession, to be corrobo- rated by proof that the crime had been committed, and joined in by defendant. Collins v. Commonwealth (Ky.), 26 S. W. 1. BEFORE CODE. — The following propositions were, prior to the adoption of the Code of Criminal Procedure, well settled by law in this state of New York : First. All confessions material to the issue, voluntarily made by a part, whether oral or written, and however authenticated, were admissible as evidence against him 104 Federal and State Criminal Eeporter, Vol. on a trial for a criminal offense. People v. Wentz, 37 N. Y. 303. Second. It was no objection to the admissibility of such confes- sions, that they had been taken under oath from a person attend- ing before a coroner, in obedience to a subpoena, upon any inquiry conducted pursuant to law, into the causes of a homicide. Hend- rickson v. People, 10 N. Y. 13. Third. That the confession or declaration sought to be given in evidence was in writing and purported to be sworn to, was no objection to its admissibility, unless it also appeared that it was taken before a magistrate upon a judicial investigation against the person accused of the commis- sion of the crime. People v. McGloin, 91 K Y. 247; 1 K Y. Cr. 154. The test of admissibility of the statements of a party accused of the commission of the crime, whether made in the course of judicial proceedings or not, is whether they were voluntary. People V. Chapleau, 30 St. Kep. 989 ; 121 N. Y. 274. This can be determined by their nature aind the circumstances under which made. Id. If in all respects, and however viewed, they could only have been the voluntary and uninfluenced statements of the individual, no principle of law warrants their exclusion and the Code expressly authorizes their being given in evidence upon the trial. Id. THREATS, ETC.— The fear, which is required to exclude the confessions, must be a fear produced by threats, and the hope must be based upon the stipulation of the district attorney prom- ising immunity from prosecution for the crime confessed. People V. Mondon, 2 St. Rep. 713 ; 103 N. Y. 219 ; 4 N. Y. Cr. 559. Where the state offers to prove a confession by defendant to the officer who conducted him to jail, and such officer testifies that no threats were made to induce the confession, defendant may show that the confession was made under the influence of fear, caused by threats. Confessions of the accused in a criminal prosecution are inad- missible, where there is reasonable ground for the prosumption that they were extorted by threats, or induced by means of prom- ises. May V State (Neb.), 56 N. W. 804. Where a confession extorted by threats of violence is admitted, but there is also evidence of a distinct confession, made by de- fendant at other times and to other persons, when he was not in- fluenced by any promise, advice, or threat, a verdict of guilty will not be set aside. Wigginton v. Commonwealth (Ky.), 17 S. W. 634. Error in admitting a confession, incompetent because made under duress, is not cured by a subsequent exclusion thereoi State V. Shepard (Wis.), 59 N. W. 449. EoBiNSON V. People. 105 WHEN QUESTIONS OF LAW. —Where there is no con- flict ill the evidence as to the circumstances under which the state- ments were made, their admissibility should be decided by the court and not be left to the jury. Willett v. People, 27 Hun, 469. Where there is no conflict in the evidence as to what occurred at the time the confession was made, or as to the conversation held with the defendant, it is a question of law as to whether the confes- sion is or is not receivable. People v. Druse, 3 St. Eep. 617 ; 5 N. Y..Cr. 20; 1 Silv. (Ct App.), 186; Willett v. People, 27 Hun, 469 ; People V. Mondon, 38 Id. 188; 4 N. Y. Or. 112; Murphy v. People, 63 N. Y. 591. The sufficiency of the evidence to show the competency of a confession is for the court. Brady v. United States, 1 App. D. C. 246. The admissibility of confessions is for the court and their credi- bility for the jury. Goodwin v. State (Ala.), 15 So. 571. Where there is no conflict in the evidence as to the circumstances under which such statement was made, the question of admissi- bility should be decided by the court, and not left to the jury. Id. Willett v. People. 27 Hun, 469. WHEN QUESTION OF FACT.— But, where there is a con- flict of testimony, or room for doubt, the court should submit the question to the jury, with instructions that, if they are satisfied that the confession was procured by the prohibited inducements, they should disregard and reject it People v. Mackinder, ante ■; People V. Kurtz, 3 St. Eep. 315; 42 Hun, 335; People v. Fox, 31 St Eea 570; 121 N. Y. 449; People v. Oassidy, 44 St Eep. 869 ; 133 N. Y. 612. Where the defendant testified that the confession was made by reason of threats, the person to whom it was made, testified that no threats were employed, the charge of the judge correctly stated the rules of law relating to confessions which should govern the deliberations of the jury, and the jury found the defendant guilty, the appellate court must assume that the jury found the confes- sions to have been voluntarily made. People v. Bishop, 53 St. Eep. 60 ; 69 Hun, 105 Where the evidence as to whether defendant was cautioned by the officer before making a confession is conflicting, the jury should be instructed to disregard the same if they believe the caution was not given. Eains v. State (Tex. Or. App.), 26 S. W. 398. ; The jury could accept statements that seemed to deserve credit, and from such statements, and the other evidence, find facts suf- ficient to warrant a conviction. State v. Dooley (Iowa), 57 N. ;, W. 414 Fed. Crim. Rep., Vol. I.— 14 106 Federal and State Criminal Reporter, Vol, I. Evidence of confessions to various persons, made by defendant voluntarily, and not under any threats, duress, or promises, is competent, and the weight of such evidence is for the jury. People V. Taylor (Mich.), 53 N. W. 777 ; 93 Mich. 638. Under Code, section 1146, it is not necessary that the magis- trate shall use the precise words of the statute in giving the pre- scribed caution, but it is sufficient if there be a substantial com- pliance with the requirements of the law. State v. Eogers (N. C), 17 S. E. 297. PRELIMINARY EXAMINATION.— Whether the prelimin- ary inquiry to determine whether a confession was voluntary shall be conducted in the presence of the jury, or not, rests in the sound discretion of the trial judge. Lefevre v. State (Ohio Sup.), 35 N. E. 52 ; 50 Ohio St. 584. Upon the preliminary inquiry had before the judge to deter- mine whether a confession was voluntary, defendant may intro- duce pertinent evidence in addition to that which results from the preliminary examination and cross-examination of the witness produced to testify to the confession. Lefevre v. State, 35 N. E. 52; 50 Ohio St. 584. While it is the better practice to show by preliminary evidence that confessions intended to be proved were made freely and vol- untarily, yet, where such evidence is omitted until after the con- fessions are received, it may then be introduced. Smith v. State, 15 S. E. 675 ; 88 Ga. 627. ' BEFORE CORONER. —The statement of a prisoner before the coroner and jury, if made at his own election and request, and -without the operation of the influences of fear, produced by threats, or of hope, under a stipulation that he would not be prosecuted, is admissible, under the provisions of section 395 of New York Code of Criminal Procedure, on a trial against him to prove the homicide. People v. Chapleau, 30 St. Rep. 989 ; 121 N. Y. 272. Defendant's testimony at an inquest will be presumed to be voluntary, in the absence of proof to the contrary. State v. David (Mo. Slip.), 33 S. W. 28. A mere consciousness of being suspected of a crime does not so disqualify a person that his testimony, in other respects freely and voluntarily given, before the coroner, cannot be used against him • on his trial on a charge, subsequently made, of such crime. Teachout v. People, 41 N. Y. 7. When a coroner's inquest is held before it has been ascertained that a crime has been committed, or before any person has been arrested charged ^ith a crime, the testimony of a witness, who is -called and sworn before such jury, may be used against him on his trial, in case he shall afterwards be charged with the crime. Robinson v. People. 107 People V. Mondon, 2 St. Rep. 713; 103 N. Y. 221 ; 4 N. Y. Cr. 559. The mere fact that, at the time of his examination, he was aware that a crime was suspected, and that he was suspected of being the criminal, will not prevent his being regarded as a mere witness, whose testimony may be afterwards given in evidence against himself. Id. , Statements made by the defendant, as a witness at the coroner's inquest, before the witness has been charged with the murder, ^nd before is was ascertained that a murder had been committed, ixvQ admissible in evidence against liim upon a trial for murder. Hendrickson v. People, 10 N. Y. 13. But where it appears, at the time of a witness' examination before a coroner's jury, that a crime has been committed, and that he is in custody as the supposed criminal, he is not regarded merely as a witness, but as an accused party, to be treated in the same manner as though brought before a committing magistrate, and his examination, if not taken in conformity with the provis- ions of sections 196 to 200 inclusive of New York Code of Crim- inal Procedure, cannot be used against him on his trial for the •ofiEense. People v. Mondon, 2 St. Rep. 713 ; 103 N. Y. 221 ; 4 N. Y. Cr. 559. From the time that the prisoner occupies the position, before the coroner's inquest, of a person accused of crime, his situation is similar to that of such a person before an examining magistrate. Id. Where a constable arrested, without warrant, the prisoner on suspicion of being the murderer of his wife, and took him before the coroner, who was holding an inquest upon her body, and who swore and examined him as a witness, such evidence is not ad- missible on his trial for murder. People v. McMahon, 15 N. Y. 884. It appeared that defendant made a written statement to an offi- •cer after an inquest, and the court, before the state offered it in evidence refused to allow defendant to introdnce it, or to interro- gate a witness in relation to it, but it was read by the state in re- buttal, and defendant exercised a right to testify all about it. Held, that defendant was not deprived of any right with respect to such statement State v. Fitzgerald (Mo. Sup.), 32 S. W. 1113. DISCOVERY. — Under the Texas statute, a confession which lesults in a discovery of the fruits of the crime is admissible in evidence, though inducements were held out to defendant, if the discovery was made "by reason of the confession." Rains v. State (Tex. Cr. App.), 26 S. W. 398. A confession by accused, though he was not cautioned, is ad- 108 Federal and State Cbiminal Eeporter, Vol. I. missible to impeach his credibility as a witness, though it did not result in a discoverv of the fruits of the crime. Raines v. State (Tex. Or. App.), 26 S. W. 398. The statement, made by one while in jail on the charge of burglary, that a certain article with which the building was broken into, and a certain article taken therefrom, would be found in a certain place under a building, is, in connection with evidence- that they were so found, admissible against him under Code Grim. Proc, art. 750, making the confession of one in confinement ad- missible, wliere, in connection therewith, he made statements of facts, that are found to be true, which conduce to establish his guilt. Davis v. State (Tex. Or. App.), 23 S. W. 687. Confession of one accused of receiving stolen goods, although made when under arrest without being cautioned, if accompanied by a statement of facts and circumstances conducing to support, his guilt, and afterwards found to be true, and which led to the finding of the stolen property, are admissible in evidence, under Code Grim. Proc, art. 750, which expressly excepts confession* made under such circumstances from the general rule. Sands v. State (Tex. Ap.), 18 S. W. 86. A confession not resulting in a discovery of the fruits of the crime, and which was obtained from defendant by holding out inducements to him, is not admissible for any purpose. Eains v.. State (Tex. Cr. App.), 26 S. W. 398. PEOOF. — Where a prisoner makes a confession to a person who afterwards procures another to reduce it to writing, the latter is competent to prove that it was freely and voluntarily made ;• and the person to whom it was first made need not be put upon, the stand at all. State v. Howard (S. C), 14 S. E. 481. When a written confession of guilt is offered against a person; on trial for a criminal offense, and he objects to the same and of- fers to prove to the court that it was procured from him by threats- or promises, or under such circumstances as would render it in- competent as evidence, it is error to receive the paper without first hearing the proof offered, and deciding upon the competency of the confession as evidence against the party making it People v. Fox, 31 St. Rep. 570 ; 121 K Y. 453. Where a witness to whom confessions were made, and several persons present, testified that they were voluntary and the accused testified that they were induced by threats, there was no error in admitting them in evidence, under instructions that they should' be disregarded if so obtained. 14 N. Y. S. 349; affirmed; Peo- ple V. Cnssidy (K Y. App.), 30 N. E. 1003 ; 133 N. Y. 612. WHEN ADMISSIBLE.— In order that a confession may be- admissibie in evidence, the onus lies upon tiie prosecution to prove Robinson v. People. 109 that it was free and voluntary. Reg v. Thompson, 5 Reports, 392 ; (1893), 2 Q. B. 12. A confession, not made under the influence of fear produced by threats, nor upon any promise of immunity from prosecution, is admissible. People v. Druse, 3 St. Rep. 617; 103 N. Y. 656; 6 N. Y. Or. 27 ; 1 Silv. (Ct. App.), 186. A declaration or statement, made before tne accused was con- scious of being charged with, or suspected of, the crime, is ad- missible in all cases, whether made under, or without oath, upon a judicial proceeding or otherwise. People v. McMahon, 15 N. Y. 384. Where the evidence does not disclose any threats, nor authorize an inference that the confession was made under the influence of fear, the statement, though sworn to by the accused, is in no re- spects compulsory, and is admissible in evidence under section 395 of New York Code of Criminal Procedure. People v. Mc- Gloin, 91 N. Y. 241 ; 1 N. Y. Or. 154 ; 12 Abb. N. C. 172 ; 16 W. Dig. 255. The accused need not be told, on his preliminary examination, that he need not testify unless he choose to do so, to render his testimony voluntarily given admissible against him. Dill v. State 175- Exceptions overruled. Goart of Appeals of New York. (Filed December 19, 1895.) THE PEOPLE V. McCLURE. Evidence— Receiving btolen goods. Upon the trial of an indictment for receiving certain stolen goods know- ing them to have been stolen, the rule that it is improper upon the trial of a party for one offense to give proof that he is guilty of another on evi- dence having no connection with the offense on trial, does not apply to a case where it is difficult, if not impossible, to separate the transaction. So held, where the evidence tends to identify the goods covered by the in- People v. McOluke. 217 dictment, and it appears that the proof in reference thereto justifies the inference by the jury that all the goods were taken from the same place, by the same person, at the same time, and were received by defendant from the same person at the same time. Appeal from supreme court, general term, Third department Eugene B. McClure was convicted of receiving stolen goodSf and from a reversal by the general term (34 N. Y. Supp. 974) of a conviction the state appeals. Eeversed. Upon the trial, the people were allowed to prove, under the ob- jections of the defendant, that the defendant, McClure, had re- ceived and had in his possession, at the time the goods of Little & Co. were recovered, the balance of merchandise stolen from the same car at the same time, and presumably by the sam© person. John P. Kelly, for the Peopla E. A. Parmenter, for respondent O'BRIEN, J. — The indictment in this case charged the defend- ant with having received certain stolen goods, knowing them to- be stolen. The goods were described as cigars, cigarettes, and packages of tobacco, of certain brands. The proof tended to show that this property was stolen from a railroad car while in transit to certain consignees. In the same car were certain dry goods owned by other persons, and consigned to other parties. The proof tended to show that these dry goods were stolen from the same car at the same time, and by the same person, and delivered to the defendant Both classes of goods were found in the de- fendant's possession. The learned general terra reversed the con- viction on the ground that it was incompetent, on a trial of de- fendant upon the charge of receiving the stolen tobacco and cigars, knowing them to be stolen, to give proof of receiving the stolen dry goods from some other person and at some other time, know- ing them to be stolen; that it was improper, upon tlie trial of a, party for one offense, to give proof that he was guilty of another offense, having no connection with the offense on trial. We would have no difficulty in agreeing with the learned general term with Fed. CniM. Rep., Vol. I.— 28 218 Federal and State Criminal Eeporter, Vol. I. respect to the general principle. We are unable to see, howeverj that the rule has any application to this case. It was difficult, if not impossible, to separate the transaction. All the goods were in the same car, and the circumstances were such that the jury- had the right to find or infer that all were taken therefrom by the same person. All of them were found in the defendant's posses- sion, and when found, the defendant had a long conversation with the police in regard to the matter, which ended in his restoring all the goods to the railroad. The defendant's admissions proved by the police were of such a character as to warrant a finding that the defendant received all the goods at the same time, and from the same person. It is true that the defendant, when on the stand as a witness, gave testimony tending to show that the dry goods were received by him at another time and from another person, but this was not conclusive. The jury had a right to con. sider the defendant's admissions at the time of the discovery of the goods, and were not necessarily bound by the subsequent nar- rative. So that the case did not fall within the rule referred to by the learned court below. The people were bound to identify by proof the pails and packages of tobacco found in defendant's possession as those stolen from the car, and if they could show that other goods contained in the same package with the cigars were found in the defendant's possession after the theft, that fact would aid in the identification of the cigars and tobacco. A per- fect identification of the dry goods would help an imperfect identi- fication of the other goods, since they were all taken from the same ear, and were found in the same place. So that this was not the case of receiving other goods at other times and from other persons, but the proof was sufficient for the consideration of the jury, and thcinference could fairly be drawn that the defend- ant received all the goods from the same time, though his own testimony was to the contrary. But, while disagreeing with the learned general term in this re- spect, still I think the judgment was properly reversed, for the reason that the record does not show that the defendant was ever legally convicted or sentenced, but does show the contrary. By section 436 of the Code of Criminal Procedure, the jury in a ■criminal case may either render a general verdict, or where they People v. McClure. 219 are in doabt as to the legal effect of the facta proved, they may «xcept upon an indictment for libel, find a special verdict The next two sections define a general verdict to be " Guilty" or "Not guilty," and a special verdict to be that by which the jury find the facts only, leaving the judgment to the court. It must con- tain the conclusions of fact as established by the evidence to the satisfaction of the jury, and not the evidence to prove them. The next section provides the special verdict must be reduced to writing in the presence of the jury, and agreed to by them before they are discharged, and entered in the minutes of the court. The case before us contains these minutes certified by the clerk and from them it appears that the jury came into court, and delivered the verdict "that they find the prisoner, Eugene McClure, guilty of receiving stolen goods." The four sections following provide for a hearing by the court upon the special verdict, providing, among other things, that upon such hearing the defendant's counsel shall have the right to close the argument. Section 443 provides that, if the facts found by the jury are not sufficient to enable the court to judge whether not the facts import a crime then a new trial shall be granted. The object of these proceedings after the verdict is obtain the judgment of the court upon the question whether the facts found do or do not import the crime charged, and if they do not, then the defendant must be discharged. The verdict in this case being special, no sentence could be pronounced until further proceedings before the court, and on these proceed- ings the defendant must have been discharged, since the facts found do not import any crime. The facts found constitute but one element of the offense charged, as guilty knowledge that the goods had been stolen is that main ingredient of the crime. In Miller v. People, 25 Hun, 473, the jury returned the following verdict: "We find the prisoner guilty of receiving stolen goods knowing them to be stolen." It was held that this was a special verdict, which could not be enlarged by intendment, or held to mean more than it expressed, and as it was not found that he re- ceived them feloniously, no crime was found, and the judgment of conviction was reversed. The reasons for this result, and the authorities cited in the opinion, apply with full force to this case. We must take the verdict in this case as it has been certified to 220 Federal and State Ceiminal Eeporter, Vol. L us by the clerk whose duty it was to record it. It cannot be en- larged or changed by any admissions, verbal or written, which the defendant or his counsel made afterwards. When the de fendant was sentenced to the state prison, immediately afterwards the only authority that the court had to act upon was this verdict expressed in the very words quoted. When it was entered in the minutes of the court, the defendant was at that moment con- victed or not If he was not then convicted, he could not be after- wards by admissions, however made. Now, it appears that long after thia verdict was rendered, and after sentence passed, the defendant's counsel made a bill of ex- ceptions, in which it is stated, by way of recital of the proceedings, that there was a general verdict of guilty. It was not necessary in the bill of exceptions, to say anything whatever about the form- of the verdict. It is perfectly manifect that this statement is nothing more than an erroneous construction by the counsel of the legal effect of the verdict as entered by the clerk, and to hold that such a statement changes or modifies the verdict as certified by the clerk whose duty it was to enter it, or is to be taken as- importing verity against the plain terms of the court record, seems- to me utterly impossible. But there is nothing in this case like a formal judgment recoid. The only judgment that appears is the sentence of the court. I» Messner v. People, 45 N. Y. 1, this court reversed a conviction m a criminal case where the record failed to show that the prisoner, before sentence, was asked by the court what he had to say why judgment should not be pronounced against him. This was said to- be a substantial right, and one of the safeguards which the law gave to the accused, and it was followed in many subsequent cases. Graham v. People, 63 Barb. 468. When the legislature came to codify the criminal law, so important did this right seem to them that it was provided, in section 480 of the Code of Criminal Procedure, that when the defendans appears for judgment he must be asked by the clerk, whether he have any legal cause to show why judgment would not be pronounced against him. In this case- the importance of observing that provision is obvious. If it had been complied with, the defendant would then have an opportun- ity to call the attention of the court to tlie form of the verdict. CuRBY V. Territory of Arizona. 221 and the necessity of further legal proceedings thereon before judgment could be pronounced, and that was the first opportun- ity that he had to raise the question after the entry of the ver- dict. If the sentence is to be deemed a judgment, this question remains, for nowhere in the record before us does it appear that the defendant had the benefit of this legal right. Before a person can be deprived of life or liberty, the people are bound to show that every provision of law intended for his benefit or safety has been complied with. The Code also provides what the defendant may show when so asked, in arrest of judgment or otherwise, and it is only after it appears that he has nothing to allege in that re- gard that the court is permitted to pronounce judgment. For these reasons, I think the general term properly reversed the conviction. But my brethren do not concur in this last view, but hold that, considering the minutes and their reference to the indictment under which the conviction was had, and the express-statement in the bill of exceptions that the jury rendered a general yerdict of guilty, this record shows a conviction for the offense charged in the indictment, namely, the receiving of stolen goods with guilty knowledge. This necessarily leads to a reversal of the judgment of the general term, and an affirmance of the conviction. All concur, except O'ERIEIST, J., who dissents from result. Judgment accordingly. Supreme Court ot Arizona. (Eiled December 33, 1895.) CURBY v. TEERITORY OF ARIZONA. EviDBNCE — Rape. On the trial for rape alleged to have been committed by a father upon his daughter, it is competent to show that complainant's motive in charg- ing defendant was to shield a lover, whose attentions were paid to her against her father's will. 222 Federal and State Criminal Reporter, Vol. I. '2. Same— Examination of defendant. A defendant can only be examined by the prosecution about the matters testified to in his direct examination. 3. Same — Corkobobation. A conviction for rape may be had on the uncorroborated testimony of the victim. 4. Same— Proof. The evidence, in this case, was held to be insufficient to sustain a con- viction. Appeal from district court, Cocbise county ; before Justice Bethune, Judge. Joseph Curby was convicted of the crime of rape, and appeals. Reversed. On May 18, 1894, an indictment was returned, accusing Joseph Curby of the crime of rape, committed January 14, 1894, oa Laura Curby. To the indictment, defendant demurred. The demurrer was overruled, and defendant entered a plea of not guilty. The trial was had May 24, 1894. A verdict of guilty was returned, and judgment pronounced thereon, by which de- fendant was sentenced to the penitentiary for life. Joseph Curby resided in a house at the limits of Tombstone. The nearest dwelling to his was 185 feet away. He was a dealer in second- hand furniture, and had his place of business in the city of Tombstone. He owned an express wagon, which he used in de- livering goods, and to ride in, in going to and from his place of business. Laura Curby, the prosecutrix, resided in San Francisco until the first part of the year 1893, when she took up her resi- dence with the defendant. She worked at a dressmaker's in Tombstone for about six months just prior to the date when de- fendant was arrested. She kept defendant's house, and, after do- ing up the housework in the mornings, she would go to her work at the dressmaker's, where a number of ladies were employed. On the trial she testified that the defendant assaulted her in his bedroom on Sunday, January 14, 1894, at between eleven and twelve o'clock in the day ; that she resisted him to her utmost; that he overpowered her ; that she screamed ; that he put his hand over her mouth ; that while the act was being performed she exclaimed," Father, have mercy on your own flesh and blood ! " that when the act was over she went into her own bed room, CuRBY V. Territory of Arizona. 225 and, when she had recovered from the exhaustion caused by her efforts to prevent the act, she went about the doing of her house- work ; that from that date down to the 26th day of February, 1894, defendant raped her as often as three times a week, and that she resisted hirn every time to her utmost ; and that at each time, while the act was being performed, she exclaimed, "Father, have mercy on your own flesh and blood ! " She testified that she had not reported his conduct to any one, giving as a reason for her silence that she had no friends to whom she could go and report it to, and the further reason that she was afraid he would kill her. For nearly one year Laura Ourby resided in the same house with her father, the defendant. Their bedrooms were ad- joining, with a door from the one to the other. She kept the house. They made visits together, and received visitors. During that period he attended to his store in the city, and his other business, and she worked six months of the time at the dress- maker's, where several matrons were engaged in business. She rode on defendant's wagon with him, frequently, between their residence and the business house. Their conduct towards each other was marked by no change after the day of the alleged as- sault from that which existed prior to that date. She testified that he assaulted her in December, 1893, but at that time, she said, " He tried to get the best of me, but did not succeed." On the trial, Mrs. Curby, whose residence is San Francisco, and who is defendant's divorced wife, of sixteen years' standing, was offered as a witness for the prosecution, and only two facts were proved by her, or attempted to be proved : (1) " That Laura Curby is the defendant's daughter ; '' and (2) " that she is the divorced wife of defendant, of sixteen years' standing." Evidence was intro- duced to the effect that, after the date of the first rape, Laura re- quested defendant to purchase for her a diamond ring, and that he suggested to her that a watch would suit her better ; that she agreed with him in that suggestion ; and that he did purchase her a gold watch and chain, and presented them to her on her birth- day, February 22d, just four days before he was arrested on this charge. At the date of the trial, defendant was nearly sixty years old, and he had been a grandfather for over .seven years. Laura Curby, the prosecutrix, was eighteen years old. The de- 224 Federal and State Criminal Reporter, Yol. I. fendant offered to prove, or attempt to prove, that Laura was prompted in making the charge by a desire to shield her lover, and to punish defendant for interfering with the movements of her lover in his attentions to her ; that is, he attempted to prove that she had a motive for instituting the prosecution against him. The court did not allow him to offer "such evidence. Defendant was sworn as a witness, and after closing his testimony he was examined by the prosecution, and forced by the court to answer questions propounded to him by the prosecution which were not connected with the matters testified to in his examination in chief. Prom the judgment of conviction he appeals. Allen R. English, for appellant. T. D. Satterwhite, Atty. Gen. (William Herring, of counsel), for the Territory. EOUSE, J. (after stating the facts.) It is not necessary to pass upon the action of the court in overruling the demurrer to the in- dictment, or that we should express an opinion as to the validity of the indictment in this case. Passing those questions, we find defendant was accused of the crime of rape, tried therefor, con- victed, and sentenced to the penitentiary for life. Rape is justly considered one of the most heinous crimes. A low degree of moral turpitude must be attained by a man, in order to commit this crime. Against a man who commits this cfime, popular in- dignation is aroused, and exists with the first information that the man is accused of or charged with the offense. Indignation starts with the accusation. The case, in part, is prejudged before an examination is had. Support the charge with the allegation that the victim is the mother, sister, or daughter of the accused, and a trial, unless it be well conducted, is a useless proceeding, for the accused will be condemned before the trial. The sentiment just mentioned gave birth to this expression of an able jurist : " Rape is easy to charge. It is hard to disprove." Care should be used by the court, in all criminal trials, to prevent convictions on pre- judice alone. On account of the nature of the crime of rape, in trials therefor, the court should be exceedingly careful. Laura Curby and Joseph Ourby, her father, resided in the same dwell- CuEBY V. Territory of Arizona. 225 ing, and had adjoining bedrooms, with a door from one to the other, for nearly twelve months before the time fixed on which the alleged assault was made. Lodging so near each other dur- ing all that period, with opportunities for such an assault at hand every night, when an outcry would summon no protector to her defense, the assault was deferred for over ten months. It is al- leged that he chose an hour in the daytime, when people were abroad and an outcry would likely attract attention, and on a Sunday (a day on which unusual sounds would be sure to be noticed), to commit the act. After the first act, at intervals of two or three days, it is said, the act was repeated, and that at each time she exclaimed, " Father, have mercy on your own flesh and blood ! " That after the completion of the first act she went into her bedroom, and that after she had rested awhile, and recovered from the exhaustion caused by her resistance, she went to work in the doing up of her housework. She rode on defendant's wagon with him, after the performance of some of those acts, to his place of business and elsewhere. After the act she importuned him to purchase her a diamond ring, and he purchased her a gold watch and chain, instead of a ring, and presented them to her on February 22d, her eighteen birthday, — nearly forty days after the alleged assault, and only four days before she made the complaint on which he was arrested. During the period between the day on which the alleged assault was made and the day of his arrest, she worked at the dressmaker's, where there was a number of ladies employed, and went about the city of Tombstone as she had done before that period, and was in company with those she was accustomed to be with. The facts and circumstances in evi- dence, the age of the accused, the conduct of the prosecutrix after the date of the alleged assault, the nature of the exclamations said to have been uttered by the prosecutrix at the time of the acts, the number of acts alleged to have been had, and the failure of the prosecutrix to make complaint, leads us to the conclusion that no rape was committed. Remove from this case the fact that Laura Curby is defendant's daughter, and no one familiar with the nature of the crime would, from the evidence in the case, be- lieve defendant guilty of this crime. This case must be consid- Fed. Cbim. Rep., Vol. 1—29 226 Federal and State Criminal Eepokter, Vol. I. ered as though she was not related to him. If he committed the act with force, against her consent, it was rape. If he commit- ted the act with her consent, it was incest. He is guilty of rape, or not guilty of anything, on this indictment. On the trial the prosecution seemed anxious to prove the relationship of the parties, and lost no opportunity to establish that fact. Mrs. Curby, who lives in San Francisco, and who is defendant's divorced wife, was introduced by the prosecution as a witness, apparently for no other purpose than to prove that Laura is his daughter, and the further fact that she is defendant's divorced wife of six- teen years' standing. At least, no other facts were attempted to be established by that witness. Defendant attempted to show that the prosecutrix was actuated, in making the charge against him, by a motive, and to show that the motive was to shield a lover of hers, whose attentions were paid to her against her father's con- sent. This the court did not permit. We think the court erred in its rulings in that respect. It is competent to show in every criminal prosecution, the motives of the prosecuting witnesses. Their motives are to be considered by the jury, in order to deter- mine the question of the guilt or innocence of the accused. Es- pecially is the motive of the injured woman, in a charge of rape, material to be shown and considered. The prosecution pro- pounded to defendant questions about matters not testified to in his direct examination, and he was compelled to answer those questions. A defendant can only be examined by the prosecution about the matters testified to in his direct examination. Pen. Code, par. 2040. Counsel for appellant contends that a conviction for rape can- not be had on the uncorroborated testimony of the woman rav- ished ; that her evidence alone is not sufficient; that Laura Curby was not corroborated by any other witness in the case, and for that reason the defendant should be acquitted. We cannot give our assent to that contention. Corroboration is not necessary or required, as a rule. It is required only in cases in which the prosecuting witness occupies, in some degree, the status of a par- ticeps criminis. The woman, who is ravished, commits no crime by that act. Of all persons, she is the most unfortunate. She is entitled to the sympathy of society, and in her interest the scales CuRBY V. Territory of Arizona. 227 of justice should be speedily adjusted. Evidence of the victim alone, in a charge of rape, is sufficient to convict; but as ''rape is easy to charge, and hard to disprove," great care should be exercised, on a trial of one accused of this crime, to prevent a conviction on prejudice alone, on account of the prejudice which exists against the crime itself. It must be established by evi" dence that the victim was ravished ; she must be overcome with force, which she has not the power to resist in an honest effort to do so, or be compelled to yield by threats of violence, which, if executed, would endanger her life ; and she must, in good faith if of the age of discretion, believe her assailant has the power at that time to carry the threats into execution, and will do so im- mediately on her refusal to obey. She must resort to every rea- sonable means at hand, if of the age of discretion, to prevent the act, and yield not as long as she can discover.an avenue through ■which she may make her escape. She cannot be neutral or pas- sive. If she is, she will be in pari delicto, and it will not be rape- If, after the first act is accomplished, it be repeated at intervals' and the woman is of the age of discretion, and has the opportunity to make complaint, and she makes none, or if she consents to an act after the first intercourse, such conduct will be evidence that the first act was performed with her consent, and that she was not ravished. We do not think the evidence sufficient to sustain the judgment. The judgment is reversed and the case dismissed, and it is ordered that the defendant be released from the penitentiary, and that for that purpose the proper writ be issued. BAKER, C. J., and HAWKINS, J., concur. BETHUNE, J. (specially concurring in the reversal of the judgment). In this case I concur in the opinion that the judg- ment should be reversed, on the ground of errors committed by the trial court. I do not concur in the judgment discharging the defendant, but think the case should be sent back to the trial court for a new trial. I think the trial court erred in not permit- ting certain testimony offered by defendant, but I am not pre- pared to say that the evidence adduced at the trial was insufficient to convict the defendant, but think the jury should be permitted 228 Federal and State Criminal Reporter, Vol. L to judge that. I do not agree with my brethern that this case must be considered as though the prosecutrix was riot related to defendant. I think the fact that she is his daughter, taken in connection with the surrounding circumstances, would make a ma- terial difiEerence in considering the lapse of time between the first commission of the offense, and her telling of it, and her apparent passive submission to subsequent commissions. With shame to our civilization be it confessed, there are not wanting instances of rape by fathers upon their daughters, and the existence of that relation puts a different phase upon a case like the one under con- sideration and ordinary cases of rape. The prosecutrix testified that she was in mortal fear of her father, and that he was rough and harsh to her, and threatened to kill her if she told on him. " Where a father has established a kind of reign of terror in his family, and his daughter, under the influence of dread and terror, remains passive while he has connection with her, he may be found guilty of rape." Reg. v. Jones, 4 Law T. (K S.) 154. And again : " Where the defendant had intercourse with a fourteen- year-old step-daughter, in her bed, in a room where three younger children were sleeping ; she told him not to get into bed, and threatened to tell her mother, but made no outcry, and no com- plaint for six days, — it was held, that under the circumstances, a conviction of rape must be sustained." Bailey v. Com., 82 Va. 107. All these matters of evidence, I think, should be left to the consideration of the jury, with proper instructions from the court, and opportunity being given the defendant to show any motive the prosecutrix may have in bringing the charge, which latter was not done in this case. For that reason, I think the judgment should be reversed and a new trial granted. People v. Glassman. 229 Supreme Court of Utah. (Filed December 9, 1895.) PEOPLE V. GLASSMAK 1. Libel — Judicial proceedings. Where a reporter, or an editor, or a publishing company becomes the defendant in a prosecution for libel, based on a publication referring to evidence produced in the judicial proceeding, the defendant will be per- mitted to introduce the testimony to which such publication referred for the purpose of showing that the publication, or any portion thereof, is a fair and true report of such testimony, and, if this is shown, the publication is so far privileged that no malice will be inferred from the mere fact of publication. 2. Same. In such event, in order to convict, the prosecution must affirmatively show express malice on the part of the defendant. 3. Same — Malice. To rebut malice, any mitigating circumstances, or such as show a justifi- able motive, may be admitted, and likewise any evidence tending to show that the charges in a libelous publication are true. 4. Same — Candidate for office. Every candidate for public office is amenable to public and private criti- cism, made in good faith, and based upon reasonable or probable cause. 5. Same. A newspaper has the same right, as a private individual, to discuss the character and qualifications of a candidate for office conferred by vote of the people, being responsible for an abuse of the right. 6. Same — Malice. Where the prosecution has introduced evidence, which tends to show that the publication was made maliciously, it is competent for the defend- ant to rebut such evidence, and free themselves from the imputation of malice, by showing not only upon what evidence the publication was made, but also the circumstances under which it was made, the sources of their information, and the facts tending to show the motives which in- duced the publication, to enable the jury to pass upon the question whether or not the publication was in fact malicious, as being made in bad faith, or without probable cause. 7. Trial — Instruction. Where the court, by its declarations, in the presence of the jury, and its instructions to them, determined that the defendant is guilty, it is error. 230 Federal and State Criminal Reporter, Yol. I. Appeal from a jadgment convicting defendants of a criminal libel. L R Rhodes, J. D. Murphy, and Miner & Hiles, for appel. lants. W. L. Maginnis, Asst. U. S. Atty., for the People. BARTCH, J. — The defendants were indicted for libel, con- victedj and sentenced each to pay a fine of the sum of $500, and the defendant Glassman, in default of payment of fine, to be im- prisoned until the same was paid. A motion for a new trial was overruled, and thereupon an appeal was prosecuted to this court, and many errors assigned. The indictment, among other things, charges that the defendant Glassman was the editor of a certain newspaper called the Standard, and that the defendant publishing company was the owner of the said newspaper ; that on the 30th day of October, 1894, the said company unlawfully, willfully, and with malicious intent to injure one L. R. Rogers, did write and publish a false, scandalous, malicious, and defamatory libel of and concerning the said L. R. Rogers. The alleged libelous arti- cle charges, substantially, that L. R. Rogers is not a fit and proper person to be elected a member of the constitutional convention^ and in support of this position refers to the record in a criminal case — the trial of one Borel for the murder of one George Lewis. The article states that Lewis, a "sure thing" man, deliberately stole from Borel, who was a sheep herder, $1,600, by means of a certain game of chance ; that Rogers had been acting as attorney for Lewis; that Borel was induced to employ Rogers, and pay him a fee of twenty-five dollars, with the understanding that Lewis would be arrested, and the money returned ; and that Borel brooded over the matter, became insane, and killed Lewis. The article also refers to Borel's testimony at the trial, and to the fact that it was published in the Standard at that time, and stated that Rogers could have had Lewis arrested and confined, and averted the murder, but, instead of that, Borel was arrested, and confined under bond as a witness. The article further charges that when Rogers was prosecuting attorney six or seven men were arrested for criminal trespass, some of whom were his clients, and were People v. Glassman. 231 discliarged withoub hearing the prosecuting witness or investiga- ting the case; that a certain woman of New Orleans, for whom he managed some business concerning an estate, wrote letters to cer- tain business men in Ogden, which did not show him a model administrator. The article then asks the people to defeat Eogers in the election for members to the constitutional convention, in order that dishonesty and corruption may be repudiated. The colloquium in the indictment recites that the article imputed to Eogers that when he was prosecuting attorney he was guilty of misfeasance and malfeasance in office, and that, when his friends or clients were charged with crime, he was guilty of dishonest and unprofessional practices, and failed to do his duty as an offi- cer under oath, and was guilty of unprofessional and dishonest conduct in relation to the estate regarding which the letters were written by the woman in New Orleans. The first question raised in the bill of exceptions which it is deemed necessary to consider is whether the court erred in refus- ing to allow the witness Gatrel, court stenographer, to read, on the part of the defense, from his stenographic notes, the testimony of Eugene Borel, given on the trial for the murder of Lewis, on the subject of the employment of Rogers by Borel to recover his money, of which he claimed Lewis had robbed him, and as to what Rogers did in the matter. It appears that this testimony was offered for the purpose of rebutting malice, and to show that the alleged libelous article, in so far as it related to the subject of Borel's testimony, given in open court, in the case of People v. Borel, was a true and fair report thereof. This was material, be- cause, if said article contained a fair and true report of such testi- mony, and was- published in good faith, without malice, it was privileged under the statute which provided that " no reporter, editor, or proprietor of any newspaper is liable to any prosecution for a fair and true report of any judicial, legislative, or other pub- lic official proceedings, or of any statement, speech, argument, or debate in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication." Comp. Laws Utah 1888, § 4495. Clearly, this statement is broad enough to include the evidence of witnesses adduced in a judicial proceeding, for such evidence consists of state- 232 Federal and State Criminal Reporter, Vol. I. meats made in the course of such proceeding. A newspaper may, therefore publish a " fair and true report " of the evidence produced in a j udicial proceeding, bei ng liable for such publication only when the same is made maliciously, for the purpose of injury. It fol- lows as a necessary consequence that if a reporter, or an editor, or a publisbing company becomes the defendant in a prosecution for libel, based on a publication referring to such evidence, such de- fendant will be permitted to introduce the testimony to which such publication referred, for the purpose of showing that such publication, or any portion thereof, is a fair and true report of such testimony y and, if this be shown, then the publication is so far privileged that no malice will be inferred from the mere fact of publication ; and, in such event, in order to convict, the prose- cution must affirmatively show express malice on the part of the defendant. The burden of showing that the publication was made with malicious intent is thus cast upon the prosecution, and as to whether or not malice did actually exist becomes a question of fact for the jury, to be determined from all the evidence admitted on the trial. It appears that the prosecution realized the rule of law applicable under the circumstances disclosed by the bill of exceptions in this case, for, in addition to the alleged libelous publication, it introduced in evidence other publications and state- ments, in making out its case, tending to show malice. The prosecution having done this, the defendant unquestionably had the right to negative malice, and to show that the alleged libelous publication was a fair and true report of the testimony of Borel, given in the judicial proceeding to which such publication refer- red. For these purposes the evidence in question was proper and material, and, Borcl, being without the jurisdiction of the court, the stenographer who took the evidence referred to was a compe- tent witness. In every case where a publication is made the foundation of a criminal action for libel, malice is an essential in- gredient, and therefore any evidence which tends to show a want of malice is admissible. So, to rebut malice, any mitigating cir- cumstances, or such as show a justifiable motive, may be admitted, and likewise any evidence which tends to show that the charges contained in a libelous publication are true, because, if a publica-. tion defamatory in character is found to be false, it is itself evi- People v. Glassman. 233 dence of a malicious intent, and such evidence may be admitted for the purpose of repelling the legal inference of malice, even though it be insufficient in justification. Comp. Laws Utali 1888, § 44:92 ; Cooley, Torts (2d Ed.) 257 ; White v. Nichols, 3 How. 266 ; Kennedy v. Holborn, 16 Wis, 457 ; Holt v. Parsons, 23 Tex. 9 ; O'Donaghue v. McGovern, 23 Wend. 25. It is further complained that in the course of the trial the court sustained an objection of the prosecution to the following ques- tion, propounded to the witness Glassman, one of the defendants,, by his counsel: " I will ask you to state to this jury upon what evidence the publication was made in the Standard respecting the Borel and Lewis affair." On what ground the objection was based does not appear from the bill of exceptions- It does appear there- from, however, that the question was asked for the purpose of showing that the publication complained of was not made with a malicious intent, and it is therefore insisted that it was competent, and that the sustaining of the objection was error. The evidence shows that the prosecuting witness, L. R. Rogers, was a candidate for the office of member of the constitutional convention. He was thus seeking to assume the duties of a high public office, in which the public had the gravest and most serious concern. In sustaining the objection the court remarked, in the presence of the jury, that a candidate for office offered his character to the public to the " extent that private communications may be made in regard to him." From this statement the natural inference would be that that an editor or manager of a newspaper had no right to investigate the character and qualifications of a person who presented himself as a candidate for office, conferred by the people, and publish the result of such investigation, if it contained anything defamatory, without rendering himself liable for libel, no matter how corrupt or unfit such candidate might be to be in- trusted with public interests. This we do not conceive to be the law, for the rule appears to be well settled by an unbroken line of authority that every candidate for public office is amenable to public and private criticism, made in good faith, and based upon reasonable or probable cause ; and when a person becomes such candidate he is regarded in law as putting his character in issue Fbd. Crim. Rep., "Vol. I.— 30 234 Federal and State Criminal Reporter, Vol. I. in respect to his qualifications and fitness 'for the office for which he is a candidate. This rule is founded in public policy, which demands that the conduct, qualifications, and fitness of persons seeking public positions of trust and confidence shall be subject to criticism, upon proper occasion, from proper motives, because the community has a right, and it is to his interest, to known the character, habits, mental and moral qualifications of its public servants. Undoubtedly, for this reason, the freedom of the press was intended to be secured, and a newspaper has the same right as a private individual to discuss the character and qualifications of a candidate for office conferred by vote of the people, being respon- sible for an abuse of the right ; and not until such abuse occurs does a publication become an ofliense against the laws. Likewise in public policy is founded the rule which forbids a publication cf what is false against a candidate for such office, because it may deceive the community, and lead to the rejection of the most worthy and competent persons, to the injury of the public service ; and so a publication which is true, if made with malicious intent, and to defame another, is in violation of law. In Cooley, Torts (2d Ed.) p. 256, the eminent author, after stating what the liberty of the press implies, says: "The freedom of the press was un- doubtedly intended to be secured on public grounds, and the general purpose may be said to be to preclude those in authority from making use of the law to prevent full discussion of political and other matters, in which the public are concerned. With this end in view, not only must freedom of discussion be permitted, but there must be exemption afterwards from liability for any publication, made in good faith, and in the belief in its truth, the making of which, if true, would be justified by the occasion. There should consequently be freedom in discussing, in good faith, the character, the habits, and mental and moral qualifications of any person presenting himself, or presented by his friends, as a candi- date for a public office, either to the electors or to a board or officer having power of appointment." This doctrine is very clearly stated in Com. v. Clap, 4 Mass. 163, by Mr. Chief Justice Parsons, as follows: "When any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue, so far as it may re- People v. Glassman. 235 • spect his fitaess and qualifications for the office. And publica- tions of the truth on this subject, with the honest; intention of in. forming the people, are not libel ; for it would be unreasonable to conclude that the publication of truths, which it is the interest of the people to know, should be an offense against their laws_ * * * For the same reason the publication of falsehood and calumny against public officers is an offense most dangerous to the people, and deserves punishment, because the people may be deceived, and reject the best citizens, to their great injury, and, it may be, to the loss of their liberties." Newell, Defam. §§ 134, 135 ; Belknap v. Ball, 83 Mich. 583 ; 47 N. W. 674 ; White v. Nichols, 3 How. 266 ; Crane v. Walters, 10 Fed. 619 ; Jackson v. Pittsburg Times (Pa. Sup.) 25 Atl. 613: Marks v. Baker, 28 Minn. 162; 9 N. W. 678; Sweeney v. Baker, 13 W. Vn. 158, 183; Wheaton v. Beecher, 66 Mich. 307 ; 33 K W. 503 ; Mott v. Dawson, 46 Iowa, 533. The same doctrine appears to prevail in England, for there communications made to persons in the dis- charge of some public or private duty, whether legal or moral, concerning candidates for office, or affairs where the interests of the public are concerned, are privileged, unless express malice is shown. 2 Kent. Comm. 22 ; Newell, Defam. §§ 141, 142 ; Fair- man V. Ives, 5 Barn. & Aid. 642 ; Rex v. Burdett, 4 Barn. & Aid. 131 ; Woodward v. Lander, 6 Car. & P. 548 ; Lewis v. Walter, 4 Barn. & Aid. 605. It is evident that the prosecuting witness in the case at bar, when he became a candidate for office offered his character to the public so far as his qualifications and fitness for the office were concerned ; and the publication on which the indictment was founded, though defamatory, having criticised and challenged the qualifications and fitness of such candidate, belongs to that class of privileged communications which is protected, if made in good faith, and upon reasonable and probable cause, and without malice. In such case malice is not presumed. Comp. Laws Utah 1888, § 4497. Hence the prosecution having introduced evidence which tended to show that the publication was made maliciously, it was competent for the defendants to rebut such evidence, and free themselves from the imputation of malice, by showing not only upon what evidence the publication was made, but also the circumstance under which 236 Federal and State Criminal Reporter, Yol. I. it was made, the sources of their information, and the facts tend- ing to show the motives which induced the publication, to enable the jury to pass on the question whether or not the publication was in fact malicious, as being made in bad faith, or without probable cause. Some of the charges contained in the publica- tion having been based upon the testimony in the Borel trial, the witness Glassman shpuld have been permitted to answer the ques- tion under consideration, because it related to the source of in- formation, and tended to elicit facts material in the determination of the question of malice by the jury. Wilson v. Fitch, 41 Cal. 363; Bailey V. Publishing Co., 40 Mich. 251; 1 Ersk. Speech. (High, Ed.) 160-208 et seq. In further defining its position in sustaining the objection just considered, the court used the following language, as appears from the bill of exceptions : "Now, then, the defendant in this case, or the defendants in this case, are charged with publishing certain matters with respect to a citizen of this town, which is libel. It is libelous by its terms, and charges not only crimes, but charges matters which are intended to make a man infamous and ridiculous in the eyes of the community," It is insisted that by the use of this language the court declared the defendant guilty of the oEEense charged, in the presence of the jury, before the case was submitted to them. That such a strong expression of the views of the court, within the presence of the jury, in relation to the character of the publication which was the foundation of the indictment, and the thing which it was the province of the jury to determine, was unfortunate, must be conceded, because it doubtless conveyed to the jury the fact that, in the opinion of the court, the matter contained in the publication was a libel. If this were so, then the only question to be determined by the jury, in order to convict, would be whether the defendants made the pub- lication. Under these circumstances it is impossible to say that the declarations of the court which would at once dispose of the question of malice — the real issue in ttie case — did not prove dis- astrous to the defendants by prejudicing the minds of the jury against them. Especially is this so wiien such declarations are considered in connection with certain language used in the charge of the court in respect to the character of the publication, which People v. Glassman. 237 language is as follows: " If the matter is false, and not shown to be true, there can be no justification for it There is none in a case of this character." The court having previously refused to allow the witness Glassman to state upon what evidence the oub- lication was based in relation to the Borel affair, the defendants were unable to show the material facts upon which they relied in justification ; and therefore the opinion of the court, expressed in the presence of the jury, that the publication was a libel, was rendered yet more prejudicial to their rights by the instruction that there was no justification in a case of this character. In efifect, the court, by its declarations in the presence of the jury, and its instruction to them, determined that the defendants were guilty. This was error, because it was an invasion of the province of the jury, who were sole judges of guilt or innocence. We do not deem it necessary to discuss the other questions raised in the bill of exceptions, since it is apparent from those already considered that the defendants are entitled to a new trial. The judgment is reversed, with directions to grant a new trial. MBERITT, C. J., concurs. KING, J. — This case is reversed upon three grounds. I agree with the majority of the court in the judgment of reversal, and with the views expressed in the question first discussed in the opinion, but I dissent from the conclusions of my brethren reached in the two remaining questions considered by them. 1. The record does not disclose whether or not the publication alleged to be libelous purports to have been made upon the au- thority of another. For the purpose only of disproving malice may a defendant in a case of this character show that he was not the author of the publication, and all of the authorities unite in expressing the view that evidence of this character is only admis- sible when the publication itself indicates that it was made upon the authority of another. The question, " State upon what evi- dence the publication was made in the Standard respecting the Borel and Lewis aSair," would be proper, and the answer thereto admissible, if the defendant, when publishing it, had stated the 238 Federal and State Criminal Eeporter, Vol. I. " evidence " upon which the publication was based, and the infor- mation upon which it was founded. This question was discussed at some length in the case of Fenstermaker v. Publishing Co. (just decided by this court), 42 Pac. , and the view here taken was there announced as the law, and I think the numerous au- thorities here cited unerringly indicate the erroneous position taken by the majority of the court in this case upon this propo- sition. 2. During the progress of the trial frequent discussions arose between the court and counsel respecting the admissibility of tes- timony. While these discussions were in the presence of the jury, they were not for the jury. The court stated to counsel that : " The defendants in this case are charged with publishing certain matter with respect to a citizen of this town, which is libel. It is libelous by its terras, and charges not only crimes, but charges matters which are intended to make a man infamous and ridiculous in the eyes of the community." This, together with one of the sentences of the charges of the court, viz. : " If the matter is false and not shown to be true, there can be no jus- tification for it; there is none in a case of this character," — is held to be reversible error. There was no complaint that the court persistently during the trial made statements calculated to influ- ence the jury and prejudice them against defendants, and I do not think that the statement made in answer to arguments made; by counsel respecting legal propositions was sufficient, even in connection with the words quoted from the charge, to constitute error. I concede the trial court ought to be cautious in their ex- pressions concerning the vital points of the case in the presence of the jury, but it is impossible for the court to answer various questions raised by counsel, and intelligently decide upon objec- tions raised, without expressing views upon material questions ; and especially is this so in a case of this kind, where the publica- tion is libelous per se, and where the publication is admitted, and the only defense is justification. Moreover, the legal and tech- nical discussions ensuing between court and counsel are lost to the jury, and from the record in this case I cannot see that de- fendants were in any manner prejudiced by these statements. State v. Thompson. 23& Supreme Court of Oregon. (Filed December 30, 1895.) STATE V. THOMPSON. 1. Indictment — Larceny — Bailee. An indictment, which charges that defendant, being " the bailee and trustee " of a note, the property of another, embezzled and converted it to his own use, charges but one crime and that crime under section 1800 of the Code. 2. Criminal law— Larceny— Identity. Where the identity of a note offered in evidence is unquestionable, a variance, in the indictment, of two days in the date thereof is immaterial. 8. Same — Collateral attack. On a prosecution for larceny by a bailee, objection cannot be made to the regularity of the appointment of the guardian who made the demand, where the court making the appointment has jurisdiction of the subject- matter and the parties. 4. Same — Proof op value. Where a note is negotiable and at the time of its conversion is not due, the fact that the defendant was able and did sell and dispose of it for itg face is sufScient proof of its value. 6. Same— Ownership. A purchaser of land, who agreed to pay, as part of its consideration, a note of the vendor secured by a mortgage on the land, is, on payment thereof, entitled to its possession, and the owner thereof, within the aver- ment of an indictment charging one to whom it was delivered aa attorney of the payee, and who converted it to his own use, with the crime of larceny by a bailee. Appeal from a judgment convicting defendant of the crime of larceny. B. P. Welch, for appellant C. M. Idleman, Atty. Gen., and W. T. Hume, Dist. Atty., for the State. BEAN, 0. J. — The defendant was tried and convicted of the crime of larceny by bailee, under an indictment charging tliat on the 14th day of June, 1794, the defendant, being " the bailee and trustee of a certain promissory note, dated on the 18th day of 24:0 Federal and State Criminal Eeporter, Yol. L February, A. D. 1889, signed by F. F. Jancke, and for the sum of three hundred and seventy-five dollars, and made payable to the order of E. W. Oressy, of the value of three hundred and seventy-five dollars, the personal property of J. F. Broetje," did feloniously embezzle, and unlawfully convert the same to his own use, etc. From the judgment rendered upon such conviction, he appeals; assigning error in overruling his demurrer to the indict- ment, and in the admission of testimony by the trial court. The undisputed facts in the case are that in June, 1894, application was made to the county court of Clackamas county for the ap- pointment of a guardian for one F. W. Oressy, who was old and feeble in mind and body, and incapable of taking care of himself. At this time Oressy, who was the owner of considerable property, was in possession of a certain promissory note in his favor, for $375, dated February 16, 1889, executed by F. F. Jancke, and secured by a mortgage, but which had in fact been paid by one Broetje, who had purchased from Jancke the mortgaged premises, and, as a part of the consideration therefor, had assumed and agreed to pay the note in question, and for that purpose had be- come a party thereto. Soon after the application for the appoint- ment of a guardian, and the service of a citation upon him, Oressy suddenly disappeared from his usual place of abode, leaving among bis effects several promissory notes and mortgages ; among the number being the note above referred to, upon which this prosecution was based. On the 14th of June, and after the dis- appearance of Oressy, a son of the proprietor of the house where he had been staying, acting upon the advice of a neighboring jus- tice of the peace, delivered these notes and mortgages, for safe- keeping, to the defendant, who was, or claimed to be, attorney for Oressy, and took his receipt therefor as such attorney. A few days afterwards one Hungerford, who was appointed guardian of the person and estate of Oressy by the Clackamas county court, demanded of the defendant possession of the notes and mortgages which had been so delivered to him, but without avail. Defend- ant, being thereupon cited by the county court to appear and an- swer concerning the property which had been intrusted to him, denied having possession of the same, and claimed that he had re- delivered it to Oressy. But in November following he demanded State y. Thompson. 241 payment of the note in question from Broetje, and was informed by him that it had been paid to Grassy, who failed to surrender it because, as he said, it had been lost. Thereafter the defendant, notwithstanding his knowledge of such payment and the appoint- ment of a guardian for Cressy, procured his indorsement on the note, which was not yet due, and sold it for about its face value, and appropriated the money to his own use. After the sale of the note he was again required by the county court, on petition of the guardian, to appear and answer concerning the same, which he did, and upon examination said he did no know what had be- come of the note ; that he left it lying on his office desk, and it disappeared in some manner unknown to him, and he did not know where it then was; that he never received anything for it, directly or indirectly, and knew nothing concerning it. Subse- quently, on the trial of an action against Broetje by the purchaser of the note, defendant, who was a witness, testified that he had loaned Cressy some money on the note, and had an interest in it to that extent. There can be no possible doubt of defendant's guilt, on the facts ; and, unless the record discloses some error afiEecting a substantial right, the judgment should be affirmed. We shall therefore proceed to notice briefly the alleged errors. The objection to the indictment is untenable. It is in the lan- guage of the statute, and does not charge more than one crime. The word "trustee," as used therein, does not afifect its validity, or charged a crime under section 1800 of the Code. The variance between the note ofEered in evidence and the one described in the indictment was not material. "The strictness of the ancient rule as to variance between the proof and the indict- ment," says Barl, J., "has been much relaxed in modern times. Variances are regarded as material because they may mislead a prisoner in making his defense, and because they may expose him to the danger of being again put in jeopardy for the same ofEense." Harris v. People, 64 N. Y. 148. The variance in this case could present no such difficulty. The indictment does not undertake to set out the note according to its tenor, but only in substance and legal effect ; and the difference of two days in the date alone could not have misled the defendant in making his defense, and will not Fbd. Crim. Rep., Vol. I.— SI 242 Federal and State Criminal Reporter, Vol. L expose him to the danger of agaia being put in jeopardy for the same ofifense. Tbe identity of the note described in the indict- ment and tbe one offered in evidence is unquestionable, and the judgment in this case will protect the defendant from another prosecution for the same offense, and this is all the law requires. Donovan's Appeal, 41 Conn. 550. The objection to the regularity of the proceedings of the county court of Clackamas county in appointing a guardian for Cressy is without meirt in this case. The only object of the proof of such appointment was to show a legal demand upon the defendant for the possession of the note in question. The county court had •jurisdiction of the subject-matter and .the parties, and it is imma- terial for the purposes of this case whether the proceedings in the appointment of the guardian were regular or irregular. It made an appointment and issued letters of guardianship to Hungerford, who duly demanded the note of the defendant, in order that it might be delivered to Broetje, the owner ; and this would, no doubt, have been sufficient to establish the conversion, if proof of demand was necessary, which may be well doubted, as the undis puted evidence shows an actual conversion and fraudulant appli- cation of the note and its proceeds to the defendant's own use, contrary to the terms of the bailment. State v. New. 22 Minn. 76; Com. v. Hussey, 111 Mass. 432. It is also claimed that the state faifed to prove that the note was of any value, or that it was the property of Broetje, as alleged m the indictment. The note was negotiable, and at the time of its conversion by the defendant not due, and the fact that he was able to and did sell and dispose of it for its face is sufficient proof of its value. Broetje, having paid Cressy and thus discharged his obligation, was entitled to possession of the ilote, and was there- fore the owner, within the averments of the indictment. There are several other assignments of error discussed in defend- ant's brief, but they proceed on the mistaken theory that the same rules as to the indictment and proof prevail in prosecutions for larceny by bailee and for embezzlement, under the statutes of thiS^, state, and therefore require no further consideration. A careful '^.^ examination of this record has failed to disclose any error affect- inca substantial right, and the judgmentmustthereforebeaflfirrned. People v. Wiman. 243 Court of Appeals of New York, (Piled December 19, 1895.) PEOPLE V. WIMAN. I 1. Ceiminai/ law— Torgert— Intent. Criminal intent is essential to constitute the crime of forgery, and the testimony bearing thereon is always a question for the jury. 3. Same. The conviction should be reversed where the charge renders uncertain the question as to whether "criminal intent" was essential to constitute the crime of forgery. Appeal from a judgment of the general term of the supreme court, reversing the conviction of defendant. John D. Lindsay, for the State. Benjamin P. Tracy, for respondent. PER CUEIAM.— It appears that Robert Or. Dun, Arthur J. King, Robert D. Douglass, and the defendant, Erastus Wiman, were associated together in business, carrying on a mercantile agencies under he names of R. Gr. Dun & Co., and Dun, Wiman & Co., in various cities of the United States and Canada. Wiman was the principal business manager, and had the power to sign the company's name to checks that were necessary to be drawn in the conduct of the business. On the 6th day of February, 1893, the company was owing one E. W. Bullinger the sum of about $15,- 000, and on that day the defendant directed a clerk in the com- pany's office to draw a check to the order of Bullinger for $5,000, upon the Chemical National Bank, to be paid to Bullinger on ac- count of the money owing to him. A check was accordingly filled out by the clerk, and that amount charged to the account of Bullinger on the books of the company. The defendant took the check, signed the company's name thereto, and on the same day, without the knowledge or consent of Bullinger, indorsed Bullinger's name on the back of the check, and then, after indors- ing his own name thereon, deposited it to his own credit in the 244 Federal and State Criminal Eeporter, Yol. L Central National Bank. The check was subsequently presented to the Chemical National Bank, and was paid, and a few days thereafter it was bronght to the attention of the defendant's as- sociates in the business. It further appears that at this time the defendant had overdrawn his account with the company in an amount upwards of $150,000, and that his associates had forbid- den him to draw more from the business on his'own account, ex- cept a stipulated sum, agreed upon, per month, until the amount of the overdraft should be restored or made good The defendant was subsequently accused of the crime o£ forgery in the second degree by an indictment charging him with having feloniously forged on the back of the check the indorsement of E. W. Bull- inger, with intend to defraud, and in another court he was charged with uttering the same. Upon the trial court withdrew from the jury all questions with reference to the intent to defraud Bullinger or the Chemical National Bank, and submitted only the question of the intent to defraud E. Gr. Dun & Co. The claim is made that the transaction set forth does not constitute the crime of forgery. Upon this question our minds are not in accord, and in- asmuch as other facts may- appear in the event that we should again be called upon to review this case, we have not thought it advisable to enter upon a discussion of the question at this time. During the summing up of the defendant's counsel, he was in- terrupted by the court, and a conversation ensued, after which the defendant's counsel stated that he should asked the court to charge the jury "that if the defendant believed that under the rules of commercial law he had legal authority to make this check and indorsed it as he did, the crime is not forgery." The court replied that he should refuse to so charge. Subsequently the court did charge, on the request of the counsel, that "if the jury shall find that Wiman believed that, under the rules of law applicable to commercial paper, he had legal authority to use the name of a person as payee to whom it was not intended that the check should be paid, and to indorse such name on the back of the check, indorsement is not forgery." The court was also re- quested by the defendant's counsel to charge that, "unless the jury find that the acts charged were committed with criminal in- Sanders v. State. , 245 tent, the defendant is entitled to an acquittal." The court replied: "I charge you, unless the act was committed with intent to defraud as I explained it to you, the defendant is entitled to an acquital. I refuse to charge as requested." To this ruling an exception was taken by the defendant. During the summing up of the de- fendant's counsel, the judge was asked how he would charge upon the subject of criminal intent, and he replied: "I shall charge that the jury must find that there was intent to defraud ; nothing about criminal intent." In the charge the judge instructed the jury that there must be an intent to defraud in order to con- stitute the crime of forgery, and then defined the term defraud, "to deprive of right, either by obtaining something by exception or artifice, or by taking something wrongfully, without the knowl- edge or consent of the owner." Criminal intent is essential to constitute the crime, and the testimony bearing thereon is always a question for the jury. Duffy v. People, 26 N. Y. 588-593; Stokes V. People, 53 N. Y. 164 ; People v. Powell, 63 N. Y. 88 ; People V. Flack, 125 KY. 324; 26 K E. 267. It follows that the court should have charged as requested. It is urged, however, that the refusal to so charge did no harm, and that the charge as made sufficiently covered the ground. But we are all of the opin- ion that the charge as made taken in connection with the remarks of the court and its refusal to charged as requested, was confusingj and rendered uncertain the question as to whether "criminal in- tent" was or was not essential in order to constitute the crim& The judgment of the general term should be affirmed. All concur. Judgraeat affirmed. Supreme Court of Mississippi. (Filed November 4, 1895.) SANDERS V. STATE. Obdiikaii lAw— Dbfbhdant's failure to TBSTrFY— Comments oit. Comment by the state's counsel on the failure of the accused to testify. Tinder § 1741 «»f the Code, Is ground for reversal. 246 Federal and State Oeiminal Ebportee, Vol. I. Appeal from a judgment convicting the defendant of a criminal defense. Kimmons & Kimmons and Stone & Lowrey, for appellant Frank Johnston, Atty. Gen., for the State. COOPER, C. J. — The judgment in this case must be reversed, and a new trial awarded, because counsel for the state, in his argu- ment before the jury, commented upon the failure of appellant to testify. The statute expressly declares that " the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel." Code, § 1741. It is true the court promptly rebuked counsel, and directed the jury to disregard the fact alluded to, and that counsel then asked that his remarks be considered as withdrawn; but, as we have heretofore decided, this did not cure the error. Reddick v. State, 16 South. 490. As was there said : "The statute forbids absolutely any comment on the failure of the accused to testify, and it is the right of every person charged with crime to insist that he enjoy this statutory immunity from criticism by hostile counsel; and the disregard of this plain statute, and of the decisions of this court upon it, by the state's own counsel, must reverse the judgment appealed from in this case." .Reversed. Supreme Court of Mississippi. (Filed November 4, 1895.) STATE V. JOLLY. ISTDICTMENT — PbBJURT. An indictment for perjury, which charges that defendant, while on trial on a certain date, before a designated court, having jurisdiction, under an indictment for unlawfully selling liquor, and while a witness under oath, administered by the duly-authorized clerk of said court, falsely swore that he did not on a certain date sell spirituous liquors, knowing it to be false, the same being a material issue in the case, is suiflcient under section 1363 ot Ann. Code. State v. Jolly. 247 « Appeal from circuit court, Chickasaw county ; Newnau Cayce, Judge. S. J. Jolly was indicted for perjury, and from a judgment sus- taining a demurrer to the indictment, the state appeals. Re- versed. The indictment was as follows: "On the 18th day of Octo- ber, 1894:, in the second district of Chickasaw county, state of Mississippi, a certain issue was joined between the state of Mis- sissippi and S. J. Jolly, upon an indictment against said Jolly for unlawfully selling vinous and spirituous liquors, in the circuit court of the second district of Chickasaw county, of which cause the said court had jurisdiction, and that on the said day, at the regular October term of the circuit of said district, held at the court house thereof, by the Hon. Newnau Cayce, circuit judge of said court, who was by law authorized to bold said court, the said issue and cause between the state of Mississippi and said S. J. Jolly came on to be tried in due form of law by a jury of the said second district in that behalf duly taken and sworn between the said parties; and upon the said trial upon the issue aforesaid tlie said S. J. Jolly did then and there appear and tender himself as a witness in his own behalf, and was received to give evidence on behalf of himself, the said Jolly; defendant aforesaid, and that the said Jolly did then, before the said court, take his corporal oath, and was then duly sworn by L. F. Baskin, the clerk of said court, who by law was authorized to administer said oath ; that the evidence he, the said Jolly, should give to the court and the jury sworn the parties aforesaid, touching the matters in question in said issue, should be the truth, the whole truth, and nothing but the whole truth ;■ and thereupon on the trial of the said issue, it became and was a material question and matter in the same, whether the said Jolly did, on September 22, 1894, in the second- district of Chickasaw county, state of Mississippi, sell vinous and spirituous liquors, and that thereupon the said Jolly, being so sworn as aforesaid, devising and intending to cause and procure a verdict to pass for him, did then and there, to wit, on the said October 18, 1894, upon the trial aforesaid, before the said court and jury, falsely, feloniously, willfully, knowingly, corruptly, and wickedly, and by his own proper act and consent, upon his> oath 248 Federal and State Criminal Eeporter, Vol. L aforesaid, depose, swear, give evidence to the jury so sworn as aforesaid, amongst other things, in substance and e£Eect, following, — that is to say, that he, the said Jolly, did not sell vinous and spiritous liquors in the second district of Chickasaw county, state of Mississippi, on the 22nd day of September, 1894, whereas in truth and in fact the said S. J. Jolly did, on September 22, 1894, in the second district of Chickasaw county, state of Mis- sissippi, sell vinous and spirituous liquors, all of which he, the said Jolly, well knew ; and so the grand jurors aforesaid,, upon their oaths aforesaid, do say and present that the said Jolly, on the trial of the said issue, on.the day and year aforesaid, and before the court aforesaid, falsely, maliciously, wickedly, know- ingly, corruptly, and feloniously, in manner and form as afore- said, did commit willful and corrupt perjury, against the peace and dignity of the state of Mississippi." A demurrer was inter- posed to this indictment upon the following grounds: " The in- dictment does not allege that the indictment was found by grand jury of the second district of Chickasaw county, upon which said Jolly was tried. The indictment does not set up the indictment, or some part of it, that Jolly was tried upon, on which the alleged false swearing was done. The indictment does not allege to whom Jolly sold liquor. It does not allege that he sold it to any one. Because the indictment does not allege that the indictment upon ■which Jolly was tried was ever found by any grand jury, and re- turned into court. It does not charge that the indictment was a legal and binding indictment. It does not show that the issue joined was upon a valid and binding indictment. It does not allege that he knew at the time that he was swearing falsely. It does not sufficiently set the indictment upon which Jolly was tried to identify the case. It fails to allege at what time, or in what court said indictment was found and returned into court. It does not allege that it was found and returned into court by the grand jury of the second district of Chickasaw county. The indictment upon which Jolly was tried was an invalid indictment, and did. not charge any offense against him." The demurrer was sustained by the court. The state appealed. Frank Johnston, Atty. Gen., for the State. Bertrand v. State. 249 T. J. Buchanan, Jr., and W. D. Frazee, for appellee. WHITFIELD, J. — The indictment was sufficient, under sec- tion 1362, Ann. Code, 1892. Judgment reversed, demurrer over- ruled, and cause remanded for further proceedings. Supreme Court of Mississippi. (Filed NovemlDer 4, 1895.) BERTRAND v. STATE. Intoxtcating liquors — Druggist. A druggist, who in good faifh sells tincture of ginger as a medicine, cannot be convicted of selling intoxicating liquors because the buyer diluted the drug with water, and drank it as an intoxicant. Appeal from a judgment convicting plaintiflE in error of selling intoxicating liquors. Thos. Brady and R. H. Thompson, for appellant Frank Johnston, Atty. Gen., for the State. WHITFIELD, J. — The test question in this case was whether the essence or tincture of ginger in this case was a medicine, sold by appellant to Davis as such in good faith, and not as a beverage, or whether it was a sham preparation, disguised as medicine, really an intoxicating liquor, sold as a beverage. If the former, appellant should have been acquitted ; if the latter, convicted. The learned court below excluded the testimony of Dr. Stevens and Dr. Gillis, the appellant's license and certificate of registration as a druggist, and refused, among others, instruc- tions numbered one and three, to the defendant, and charged the jury, for the state, that if they believed from the evidence that appellant sold essence of ginger, and that it, when diluted with •water, and drank to excess, would produce intoxication, they Fed. Cbim. Rep., Vol. I.— 33 250 Federal and State Criminal Repoutek, Vol. I. should convict appellant, wholly ignoring appellant's motive in the sale, and wliether, when sold, it was a medicine, known and recognized as such, and incapable in its then state of being used as a beverage. The learned judge excluded all proof that it was a standard medicine, prepared according to a standard formula laid down in the United States dispensatory, and used by physi- cians throughout the United States as a medicine in their practice. Appellant testified that he so made it, and never sold it otherwise than as a medicine. The state's witnesses testified that it could not be used, as bought, as a beverage, but that by diluting it sufficiently with water it would, if enough of it were drank, pro- duce intoxication. Tiie appellant was a duly-licensed druggist. The appellant also offered to prove by Dr. Stevens, a practicing physician, that there were a great many other officinal tinctures used by practicing physicians in the United States, which, if diluted with water, and drank to excess, would produce intoxica- tion ; and this was excluded. The court refused defendant's in- struction No. 1, propounding the proposition that, "if the jury believed from the evidence that defendant sold tincture of Jamaica ginger as a medicine, in good faith, and believed further from the evidence that the same was prepared by the directions of the United States dispensatory, and that the same was recognized by the medical profession of the United States," they should acquit. This charge substantially was approved in King's Case, 58 Miss. 740, as we think, correctly. The true rule is there announced with great clearness, the court saying : " One authorized to sell medicines ought not to be held guilty of violating the laws against retailing, because the purchaser of a mixture containing alcohol misuses it, and becomes intoxicated; but, on the other hand, these laws cannot be evaded by selling as a beverage intox- icating liquors containing drugs, barks, or seeds which have me- dicinal qualities. If the other ingredients are medicinal, and the alcohol is used as a necessary preservative or vehicle for them, if from all the facts it appears that the sale is of the other ingredi- ents as a medicine, and not of the liquor as a beverage, the seller is protected ; but if the drugs or roots are mere pretenses of med- icines, shadows and devices under which an illegal traffic is to be, conducted, they will be but shadows when interposed for protec- MuKPHY V. State. 251 tion against criminal prosesecution." The same test, in equally clear cut language, is laid down in Ramsdell's Case, 130 Mass- 68, 69 ; State v. Haymond. 43 Am. Rep., at page 789 ; and in a multitude of other cases. See 11 Am. & Eng. Enc. Law, p. 573 et seq. We refer especially to the masterly opinion of Mr. Jus- tice Brewer, now of the United States supreme court, in Intoxi- cating Liquor Cases, 25 Kan. 751. From King's Case, 58 Miss. 737 ; EamsdeU's Case, 130 Mass. 68 ; and authorities supra, — it is obvious that the issue in the case — the test question above set forth — was not submitted to the jury. The instructions one and three asked by the appellant should have been given ; the instruction for the state, framed to present this issue, and the testimony referred to above as offered by the appellant, should have been received ; and the jury thus, under proper instructions as to the real issue they were to try, left to respond on these charges and the facts, as the very truth of the matter might appear. Reversed and remanded. Supreme Court of Alabama. (Filed November 14, 1895.) MURPHY V. STATE. Ckimtnai. law — Evidence — Good character. In rebuttal of evidence of good character, the state is not allowed to prove, by a deputy sheriff, ' ' that he nearly always had a warrant for the defendant's arrest." Same — Impeachment. A conviction of a felony cannot be proved in the first instance by parol. Appeal — Offer to prove. , Where a party states to the court certain facts which he proposes to prove by a witness, some of which are legal and others are inadmissible, the court does not commit a reversible error by sustaining an objection to the introduction of the facts as an entire statement. 252 Fbderal and State Cbiminal Reporter, Yol. L 4. Same — Reasonable doubt — Good chakactbr. Good character cannot be dissociated from the other facts in the case by- referring to it alone as being sufficient to generate a doubt; good character of the defendant is a fact in the case, in the light of which the other facts must be weighed. 6. Appeal — Instruction. The court commits no error in refusing charges requested by a party ■which are mere repetitions of charges already given at his request. 6. Ceiminal law — Homicide. Where the defendant fires the shot which results in the death of the de- ceased, or is an accomplice of the party who commits the deed, though the shot may be intended for a different person, the offense, in the eyes of the law, is the same as it would be if the shot had killed the person for whom it was intended. 7. Criminal law — Instruction. Though a party is entitled to an acquittal if the jury have a reasonable doubt of his guilt, arising out of any part of the evidence, upon consider- ation of the whole evidence, a charge is misleading which instructs the ' jury that the defendant is entitled to the benefit ot any reasonable doubt they may have as to the existence of any material fact in evidence. Appeal from circuit court, Baldwin county, W. S. Anderson, Judg& John Murphy was convicted of murder, and appeals. On the trial of the cause, as is shown by the bill of exceptions, the state introduced evidence tending to show that Ed. Cameron was killed by being shot with a gun on May 24, 1884, about eight o'clock at night, in his store, in Baldwin county, Ala.; that the shot was fired from the outside of the building, from a musket, through a window in the building; that about dusk on the day of the shooting the defendant was seen near said store with a musket in his hand, and was heard to say, "I'll get revenge if this musket will go ofE before daylight;" that the defendant voluntarily admit- ted to several persons, at different times and places, that he fired the shot which killed Cameron, while in company with one Jim Early; that defendant was a young man, about nineteen or twenty years of age, at the time of the kHling; that the deceased and defendant was always friendly; and that the defendant intended to shoot one John D. Cameron, the father of the deceased, who was present at the time of the killing. The defendant introduced evi- Murphy v. State. 253 dence tending to show that at the time Cameron was killed the defendant was a small boy, about fourteen years of age, and was staying at the honse of Jim Early; that up to the time of the kill- ing of Cameron the general reputation of the defendant was good; and that his general character for peace and quiet was good. The defendant, as a witness ^in his own behalf, testified that on the evening of the killing he was compelled by Early, who carried a musket to accompany him to Cameron's store ; that Early was a dangerous and desperate man, and would not allow the defendant to leave him on his way to the store, although requested to do so, and the defendant was afraid of him; that Early fired the shot that killed Cameron, and that he (the defendant) did not know, up to the time they got to the store, where Early was taking him, or what Early intended doing; that defendant took no part in the killing of Cameron, and was present by compulsion and under dhress from Jim Early; and that at no time, while with Early could he get away from him. On cross-examination of the de- fendant as a witness he was asked "where he came from to attend the trial of this cause." The defendant objected to this question on the ground that it called for irrelevant and incompetent evi- dence, and duly excepted to the court's overruling hig objection. The defendant answered that he came from the coal mines, where he had been serving a sentence under conviction for burglary. The defendant moved the court to exclude this answer on the ground ot its immateriality and incompetency, and because its tendency was to prejudice the defendant's cause. The court over- ruled the objection, and the defendant duly excepted. Charles Hall, a witness for the state, testified that he was formerly a deputy sheriff oi Baldwin county, and that he knew the defend- ant, and "nearly always had a warrant for defendant's arrest." The defendant objected to tlie part of the testimony of this witness, as quoted above, as being irrelevant and incompetent, and duly ex- cepted to the court's overruling his objection. Upon defendant's introducing a witness, and asking him to state "whether or not he had a conversation with Jim Early shortly after the killing of Cameron, and if so, what did Early say about the killing of Cam- eron, if he said anything? " the state objected to the question, and 254 Federal and State Ckiminal Reportek, Vol. I the court sustained the objection. Thereupon the defendant stated, to the court that he expected to prove by the witness that Jim Early himself shot Cameron, and that Murphy was only pre- sent at the time of the shooting because he was compelled to ac- company Early, and that he (Murphy) did not take any part or interest in said killing, and that Cameron had poisoned Early's dog, and had hired men to kill Early." The court refused to al- low the question to be asked, or to allow this evidence to be ad- mitted, and the defendant excepted to this ruling of the court Upon the introduction of all the evidence the defendant requested the court to give the following written charged : (1) "The good character, alone, of the defendant, prior to the time when Mr. Cameron was killed, if proved, may, when taken in connection with the other evidence in the case, be sufficient to authorize the jury to acquit the defendant." The bill of exceptions recites: "The court had already, in addition to its general charge on the evidence, given the following special charge, in writing at the de- fendant's request: 'Good character, alone, when taken in connec- tion with the other evidence in the case, may be sufficient to create a reasonable doubt of the defandant's guilt, when, without good charaater, there would be no reasonable doubt.' '" The court refused to give this charge asked by the defendant, and the de- fendant duly excepted. Among the other charges asked by the defendant, and to the refusal to give each of which the defendant separately excepted, were the following: (2) "If the jury enter- tain a reasonable doubt as to the truth or falsity of any material fact constituting a part of the testimony in a criminal case, the defendant is entitled to the benefit of such doubt, no matter how slight may be its influence." (3) "The court charges the jury that if they have a reasonable doubt of the defendant's guilt, arising from any part of the evidence, they must acquit the defendant." (4) "Before the jury can find the defendant guilty of murder in the first degree, they must believe from the evidence beyond all reasonable doubt, that the defendant fired the fatal shot, not in self-defense, which resulted iu the death of the deceased, willfully deliberately, maliciously, and premeditatedly, intending at the time tCiat he tired the fatal shot that it should result in the death Murphy v. State. 256 of the deceased." (5) "Although you may believe beyond a reasonable doubt that Murphy committed the crime with which he stands charged, yet if you further believe beyond a reasonable doubt that he was compelled to do it by fear of death or great bodily harm from Early, and he had no way to escape from do. ing it without being in danger of death or great bodily harm, the defendant would not be guilt-.y in either degree." (6) "A crime may be committed under duress, or under a sense of fear of death or of great bodily harm ; and if you believe from the evidence, beyond all reasonable doubt, that. Murphy committed the crime, and you farther believe that he did it under duress, or fear of great bodily harm or death from another, and he had no reasona- ble way of escape from anch duress, the defendant would not b© guilty." (7) "If the jury believe from the evidence that Murphy, the defendant, merely accompanied or was with Early when the homicide was committed, and they further believe that Early fired the fatal shot which killed Cameron, they cannot find Murphy guilty of murder in either degree, unless they further be- lieve, beyond a reasonable doubt, and to a moral certainity, that Murphy aided, abetted, or encouraged Early to kill Cameron." (8) "The oourt charges the jury that the mere presence of an- other at the time one commits the crime of murder would not make another guilty of any offense, unless the jury believe, be- yond a reasonable doubt, and to a moral certainty, he knew the murder was going to be committed before it was committed, and aided, abetted, or encouraged its commission." (9) "If the jury believe from the evidence that the defendant was simply or merely present at the time Cameron was killed, by the request of Jim Early, and that Early killed Cameron, and that the detendant was present under duress or fear of Early, and that he had no opportunity to escape from being present from the time that he got with Early until the commission of the alleged murder, he (Murphy) would not be "guilty of any offense under this indict- ment, and it would be the duty of the jury to so find." Samuel B. Browne, for appellant W. 0. Fitts, Atty. Gen., for the State. 256 FEDERAL AKU StATE CBIMIlfAIj EePOBTEB, VoL. L COLEMAN, J. — The defendant in the court below was con- victed of murder, and sentenced to the penitentiary. On the trial the defendant offered evidence of good character. In rebuttal, we presume, of the evidence of good character, the state was allowed to prove, against the objection of the defendant, by a deputy sheriff, "that he nearly always had a warrant for the defendant's arrest." This evidence was clearly illegal, and should have been excluded. A warrant in the hands of an officer for the arrest of another es- tablishes no fact affecting the general reputation of the party to be arrested, and good character cannot be impeached by such evidence. A defendant who avails himself of the right to testify in his own behalf may be cross-examined generally, and be compelled to disclose all facts within his knowledge which could be elicited if he was merely a witness, and not a defendant, material to the issue, and is subject to all legal questions which may affect his credibility. It is competent to show, for the purpose of affecting his credibility, that a witness has been convicted a felony (and a defendant who has been examined is subject to this rule); but the court record of his conviction, or a properly certified copy thereof, is the primary evidence to establish the fact. It cannot be proven by parol evidence in the first instance. Thompson v. State, 100 Ala. 70; 14 South. 878; Thomas v. State, 100 Ala. 53; 14 South, 621. When a party states to the court certain facts which he proposes to prove by a witness, some of which are legal, and others are in- admissible, the court does not commit a reversible error by sus- taining an objection to the introduction of the facts as an entire statement. Counsel offering the evidence should separate the legal from the illegal, and have the court rule separately as to each fact, and reserve his exception. The proper rule for framing charges relative to good character is stated in Goldsmith v. State (Ala.) 16 South. 938 ; Johnson v. State, id. 99 ; Scott v. State, id. 925 ; Newsom v. State (Ala.) 18 South. 206. Good character cannot be dissociated from the other facts in the case by referring to it alone as being sufficient to generate a doubt, any more than a similar reference could be made to any other fact in evidence. Under our rule, good character of MuBPHY V. State. 257 the defendant is a fact in the case, in the light of which the otlier facts must be weighed. The fact of good character may generate a reasonable doubt, when without this fact the jury might be satisfied beyond a reasonable doubt of guilt. The same may be true of other facts in the case. The rule does not authorize the framing of a charge in such way as to give undue prominence to the fact of character, any more than to any other fact in the case. It is well to keep in mind the rule declared in the case of Rail- road Co. V. Hurt, 101 Ala. 34, 13 South. 130, where it is held that the court commits no error in refusing charges requested by a party which are mere repetitions of charges already given at his request; and a mere variation in the use of words, which does not change the meaning in any respect, or application of the princi- ples asserted, does not aflfect the rule. Smith v. State, 92 Ala. 30, 9 South. 408. We would also direct attention to the rule declared in the case of Arp V. State, 97 Ala. 5, 12 South. 301, where a defendant, being tried for murder, attempts to justify the taking of the life of an innocent person under the plea of duress. If the defendant fired the shot which resulted in the death of the deceased, or was an accomplice of the party who committed the deed, although the shot may have been intended for a different person, the offense, in the eyes of the law, is the same that it would have been if the shot had killed the person for whom it was intended. Clarke v. State, 78 Ala. 474. It seems from the evidence that the deceased was the person at whom the fatal shot was fired. Jackson v. State (Ala.) 17 South. 333. Although a party is entitled to an acquittal if the "jury have a reasonable doubt of his guilt, arising out of any part of the evi- dence, upon consideration of the whole evidence, a charge is mis- leading which instructs the jury that the defendant is entitled to the benefit of any reasonable doubt they may have as to the exist- ence of any material fact in evidence. We are of the opinion that the principles declared and authori- ties cited will furnish sufficient guide to the court and counsel for the defendant on another trial. Reversed and remanded. Fed. Ckim. Rbp., Vol. I.— 33 258 FjfiDEKAL AND StATE CRIMINAL EfiPORTEE, YOL. L NOTE ON EBASONABLE DOUBT. EULB AS TO SEASONABLE DOUBT COEEEOTLY APPLIED. — The rule that, in criminal cases, the defendants are entitled to the benefit of a reasonable doubt, applies not only to the case as made by the prosecution, but to any defense inter- posed. People V. Eiordan, (N.Y.) 26 St. Eep. 531 ; 117 N. Y. 73. If, taking the whole case together, the evidence for the prosecution and the evidence respecting the defense, the jury have any doubt of the guilt of the prisoner, thev must acquit. People v. Stone (N. Y.) 27 St. Eep. 823; 117 N. Y. 480. See People v. Downs, (N. Y.) 34 St. Eep. 262 ; 123 N. Y. 558. It is the duty of the trial judge, on the trial of a criminal action, to instruct the jury, clearly and ungrudgingly, in behalf of the defendant that, in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. Peo- ple v.' Stephenson, (N. Y.) 66 St. Eep. 566 ; 32 Supp. 1122. Not only must the guilt of the defendant follow as the only conclusioa of reason before a conviction may be had, but, in addition to that, if a reasonable doubt follows, a conviction may not be had. Id. The term "beyond reasonable doubt," seems to be even stronger than "conclusively." Id. In a crimmal action, the jury may not convict becau.se on the whole they are reasonably certain of guilt. Id. On the contrary, to convict, they must be without a reasonable doubt, even though there is a clear preponderance of evidence on the side of guilt. Id. The question of reasonable doubt is always one for the jury under proper instructions from the court. People v. Davis, 46 Eep. 214. When there is evidence upon which the jury might, or might not, entertain rational doubt, it is not for the court on appeal to say that the jury should have doubted and have given the defendant the benefit of such doubt by his acquittal. Id. The phrases " beyond a reasonable doubt," and "to a moral certainty," are the legal equivalents of each other. Jones v. State (Ala.), i4 So. 772. Proof of guilt beyond all reasonable doubt is necessary to au- thorize a conviction in trials for misdemeanors, as well as for felonies. Vandeventer v. State (Neb.), 57 N. W. 397. This rule is not applicable to an action for a penalty, in which the people is the party plaintiff. People v. Briggs, (N. Y.) 22 St. Eep. 317 ; 114 N. Y. 65. Where the court charges the doctrine of reasonable doubt gen- erally, making it applicable to the whole case, an objection that it was not applied in the instructions on threats and self defense is Murphy v. State. 259 untenable. Powell v. State (Tex), 13 S. W. 599 ; 28 Tex. App. 893. A cbarge is not objectionable for failure to instruct that reason- able doubt should be applied as between the several degrees of homicide charged upon, where the court applies tlie reasonable doubt to the whole case, and no additional instructions on the sub- ject were requested. Hall v. State (Tex.), 12 S. W. 739 ; 28 Tex. App. 146. A correct charge on reasonable doubt, as to the whole case and all the evidence, is sufficient ; and it is not incumbent upon the court to carve the case or the evidence into different propositions, aud apply the rule of reasonable doubt to one or more of them severally. Carr v. State (Ga.), 10 S. E. 626; 84 Ga. 250. An instruction that, if a fair examination of all the evidence raises a reasonable doubt in the minds of the jury as to defend- ant's guilt, thev should acquit him, is proper, as defining reason- able doubt. State v. Perigo, (Iowa) 45 N. W. 399. An instruction to the effect tbat it is not necessary in order to to convict, that every fact be proven beyond a reasonable doubt, if, on the whole of the evidence, there is no reasonable doubt of the guilt of the defendant, is proper. Weaver v. People (111.), 24 N. E. 571. It is not error to charge that if the jury have any reasonable doubt of defendant's guilt, they " can " give him the benefit of it. Heron v. State, 22 Fla. 86. A charge that a reasonable doubt " is not a mere possible doubt; it should be an actual or substantial doubt ; it is such a doubt as a reasonable man would seriously entertain ; it is a serious, sensi- ble doubt, such as you could give a good reason for," is correct. State V. Jefferson (La.), 10 So. 199 ; 43 La. Ann. 995. Where the definition of a " reasonable doubt," as given in the charge of the court, has been repeatedly approved, if a defendant wants a more satisfactory one he should ask for it. People v. Winters (Cal.), 28 P. 946 ; 93 Cal. 277. It is proper to charge that it is not necessary that the jury should believe that every material fact in evidence has been proven beyond a reasonable doubt, but that it is sufficient if they believe that every material allegation in the indictment, or either count thereof, in manner and form as therein stated and charged, has been proven beyond a reasonable doubt. Jamison v. People (111. Sup.), 34 N. E. 486. The rule requiring a conviction to rest on evidence supporting it beyond reasonable doubt, does not require the evidence to be free from conflict. Godard v. People, 42 111. App. 487. 260 Fedekal and State Criminal Eepokter, Vol. L An instructioathat, "in considering the case the jury are not to go beyond the evidence to hunt up doubts, nor must they en- tertain such doubts as are merely chimerical or conjectural. Pain- ter V. People, 35 N. E. 64 ; 147" 111. 444. A doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case, and, unless it is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to authorize a verdict of not guilty. Id. A charge that, if after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt," correctly states the law, and the mistake in punctuation in putting a period, instead of a comma, after the word "pause," is harmless error, since it could not mislead the jury. Painter v. People, 35 KB. 64; 147 111.444. It is not true that, if the jury have any doubt as to which grade of homicide accused has committed, they should give him the benefit of the doubt, and find him guilty of the lesser grade, but only a reasonable doubt will work this consequence. Jackson V. State (G-a.), 18 S. B. 298; 91 Ga. 271. An instruction that defendants should not be convicted so long as any juror entertains a reasonable doubt of their guilt should be given. Parker v. State (Ind. Sup.), 35 N. B. 1105. It is not enough that the jury "believe from the evidence"," cer- tain facts in order to convict; they must be convinced beyond a reasonable doubt." Green v. State, 15 So. 242 ; 97 Ala. 59. If the jury have any reasonable doubts upon any facts which are necessary to convict the defendant, he is entitled to be acquit- ted. People V. Guidici, (N. Y) 100 N. Y. 503 ; 3 N. Y. Cr. 558. In order to convict, the guilt must be established beyond a rea- sonable, not beyond a possible, doubt. People v. Riley, (N. Y.) 3 N. Y. Cr. 374. A reasonable doubt, as to any element of the crime, entitles the defendant to an acquittal. People v. Willett, (N. Y.) 36 Hun, 500. This rule is applicable in respect to the degree of the crime charged, and to every essential requisite of that degree. Id. If the jury has a reasonable doubt as to the truth of any one of the defenses, there is a reasonable doubt whether defendant's guilt is satisfactorily shown, and he is entitled to an acquittal. People V. Downs, (N. Y.) 26 St. Rep. 122; 7 K Y. Cr. 481; 56 Hun, 11; 8 K Y. Supp. 524. The benefit of a reasonable doubt, if it arise from the evidence, that the defendant is guilty of the crime, should be given to him. O'Connell v. People, (N. t.) 87 N. Y 377. MuEPHT V. State. 261 The definition that a reasonable doubt " is not a mere guess or surmise tliat the man may not be guilty, it is such a doubt as a reasonable man might entertain after a fair review and considera- tion of the evidence — a doubt for which some good reason arising from the evidence can be given," was approved by the court of appeals in People v. Guidici, (N.Y.) 100 N.Y. 503; 3 N.Y. Or. 559. See People v. Brickner, (N.Y.) 8 N. Y. Cr. 221, 223; 15 N. Y. Supp. 530, 531. In a murder case, an instruction that "a reasonable doubt is a strong, substantial, well-founded doubt, founded in the evidence," is not error. State v. Senn (S. C), 11 S. E. 292. A charge, on the presumption of innocence and reasonable doubt, that " the defendant is presumed by law to be innocent un- til his guilt is established, by legal evidence, to the satisfaction of jury, beyond a reasonable doubt," held to be full and correct. Gallagher v. State (Tex.), 12 & W. 1087 ; 28 Tex. App. 247. A charge that, "unless the evidence against the prisoner should be such as to exclude to a moral certainty every hypothesis but that of his guilt of the offense imputed to him, they must find the defendant not guilty," is correct. Eiley v. State, 7 So. lOi; 88 Ala. 188 ; id. 7 So. 149 ; 88 Ala. 193. It is error to refuse to instruct the jury that " the law presumes the defendant to be innocent of the commission of any crime, and this presumption continues in his favor throughout the trial of the cause, step by step, and you cannot find ttie accused guilty of the crime covered by the indictment until the evidence in the cause satisfies you, beyond a reasonable doubt, of his guilt. And, so long as you or any one of you have a reasonable doubt as to the existence of any one of the elements necessary to constitute the several crimes above defined, the accused cannot be convicted of such crime." Following Castle v. State, 75 Ind. 146 ; Aszmaa V. State, (Ind.), 24 N. E. 123. The following instruction was properly given: "If the jury are satisfied from the evidence beyond a reasonable doubt that defendant committed the crime charged against him, they are not legally bound to acquit him, because they may not be entirely satisfied that defendant, and no other person, committed the al- leged offense." Following State v. Nelson, 11 Nev. 340; State v. Jones, 11 P. 317, *19 Nev. 365. A charge that reasonable doubt must be a "strong" doubt is not misleading. State v. Bodie (S. C), 11 S. E. 624. An instruction that " the doubt which requires an acquittal must be actual and substantial, not mere possibility or specula- tion ; it is not a mere po.ssible doubt, because everything relating to human affairs, and depending upon moral evidence, is open to 262 Federal and State Criminal Eepoeter, Vol. L some possible or imaginary doubt," is unobjectionable. Little v. State (Ala.), 8 So. 82 ; 89 Ala. 99. Where no adequate definition of reasonable doubt is given, it is error to refuse to instruct the jury that "a reasonable doubt is one which arises from a careful and impartial consideration o£ all the evidence, and which, in the graver transactions of life, would cause a prudent and reasonable man to hesitate and pause." Wacaser v. People (111.), 25 N. B. 564. A charge that '' by ' reasonable doubt ' is meant ' actual, sub- stantial doubt;' it is that state of the case which, after a com- parison and consideration of the evidence, leaves the minds of the jurors in that condition that they cannot feel an abiding convic- tion of the defendant's guilt, and are fully satisfied of the truth of the charge; it is such a doubt as would cause a reasonable, pru- dent, and considerate man, in the graver and more important afliairs of life, to pause and hesitate before acting upon the truth of the matter charged," is not prejudicial, when connected with an instruction that the jury must acquit if they entertain "any rea- sonable doubt upon any single fact or element necessary to con- stitute the crime." State v. Gibbs (Mont.), 25 P. 289. On a trial for maliciously shooting and wounding, the jury were charged to convict of felony if they believed, to the exclu- sion of a reasonable doubt, that the accused maliciously shot and wounded the prosecuting witness, and of a misdemeanor, if they found, beyond a reasonable doubt, that the accused did shoot and wound, but in sudden heat and passion, and not in malice ; and that in case they found him guilty, but had a reasonable doubt whether of felony or misdemeanor, they should convict of the latter only. In another instruction, the accused was given the benefit of the rule as to a reasonable doubt on the whole case. Held, as favorable to the accused as he had a right to demand. Jackson v. Commonwealth (Ky.), 14 S. W. 677. A charge that " it is not a matter of the number of witnesses, but the preponderance; and you may, if you retain a reasonable doubt, give the defendant the benefit of it," while not specially clear and perspicuous, is not yet erroneous. People v. Christen sen (Cal), 24 P. 888 ; 85 Oal 568. Where, on an issue as to the insanity of defendant in a trial for homicide, the court instructed the jury that the existence of in- sanity must be shown by evidence to their " satisfaction," and that they must "believe" from the evidence that defendant did not know right from wrong by reason of insanity, etc., the in- struction was misleading, as charging that the plea of insanity must be proven beyond a reasonable doubt, but that the error was cured by a further instruction that, if the jury had a reason- MuBPHY V. State. 263 able doubt as to any fact necessary to constitute defendant's guilt, they must acquit. Smith v. Commonwealth (Ky.), 17 S. W. 868. Evidence that defendant, indicted for shooting his wife, was in trouble with his family, and was disturbed in mind and perhaps somewhat excited, is not sufficient to raise a reasonable doubt ia regard to his sanity. Montag v. People (111. Sup.), 30 N. E. 337. An instruction that proof of alibi must be clear and convincing is not erroneous, in connection with a further charge that it was not necessary that the alibi should be proved beyond a reasonable doubt, but that a preponderance of evidence was sufficient. State V. Jackson (S. C), 15 S. E. 559. Where there is evidence of defendant's good character, it is not error for the court, after fairly charging the jury on the effect of reasonable doubt and of good character, to instruct them that positive testimony of the commission of a crime extinguishes good reputation altogether, if the testimony is believed, and that good character may be sufficient to raise tiiat reasonable doubt which requires the jury to acquit. 16 iT. Y. S. 362, affirmed. People -v. Brooks (K Y.), 30 N. B. 189 ; 131 N. Y. 321. Oil a trial for larceny it is error for the court to refuse to charge, at the request of defendant; that "if the jury, on consider- ing all of the testimony, have a reasonable doubt about defend- ant's guilt, arising out of any part of the evidence, they should find him not guilty." Hurd v. State (Ala.), 10 So. 528. In a murder trial, an instruction in regard to a reasonable doubt is not erroneous because requiring the doubt to grow out of the whole evidence. Baker v. Commonwealth (Ky.), 17 S. W. 625. It is not reversible error to instruct the jury that, " if you have a reasonable doubt of the defendant's guilt, you must acquit him, but a doubt, to autiiorize an acquittal, must be a substantial doubt, arising from the insuffici'jnoy of the evidence, and not a mere possibility of his innocence," where the jury are told in another instruction that " a reasonable doubt ia that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge." State v. Talmage(Mo. Sup.), 17 S. W. 990. An instruction, in a criminal case, that a reasonable doubt of defendant's guilt is not the same as a probability of his innocence, but that such a doubt may exist when the evidence fails to estab- lish a probability of innocence, is not objectionable on the ground that it is argumentative, or that the phrase " probability of inno- 264 Federal and State Criminal Eeporter, Vol. L cence " is of such a character as to require explanation. Bain v. State (Ala.), 10 So. 517. The jury were properly instructed that to warrant a conviction " the circumstances proven must not only be consistent with his guilt, but they must be inconsistent with his innocence, arid such as to exclude every reasonable hypothesis but that of his guilt." Lancaster v. State (Tenn.). 18 S. W. 777. In a criminal case a charge that '' a reasonable doubt is such as a reasonable man would have, after a careful investigation of any important subject, that prevents his being able to come to a satis- factory conclusion about it one way or the other," is not error. Johnson v. State (Ga.), 14 S. E. 889. By a reasonable doubt is not meant certainty beyond all doubt whatsoever, but that defendant should be acquitted if there is some substantial doubt, arising from the evidence, or the want of it, wliich is not a mere possibility of innocence. State v. Turner (Mo. Sup.), 19 S. W. 645. It is not error to instruct^ the jury in defining a reasonable doubt that, " if the evidence in any case is sufl&cient to satisfy a jury to an extent which would justify them in acting upon the more important affairs of life, then the jury are satisfied beyond a reasonable doubt." United States v. Heath (D. 0.), 19 Wash. Law R 818. An instruction defining a reasonable doubt as " a substantial and well-founded doubt in the case arising out of the evidence in the case, and not a mere possibility that defendant is iunocent," is proper in defining the doubt as " a substantial douV)t," and not as "a real and substantial doubt." State v. Davidson, 44 Mo. App. 513. Where, on a criminal trial, the charge of the court is otherwise clear and proper on the subject of a reasonable doubt, the fact that it states that the jury should not search for a doubt is not prejudicial error. Kelly v. People (Colo. Sup.), 29 P. 805. Where the court charged that, if the jury had a reasonable doubt of the guilt of defendant, they should acquit, and added that if they were satisfied, beyond a reasonable doubt, as to his guilt, they should convict, the jury probably understood that they were to acquit of any grade of offense touching which they liad a reasonable doubt, and convict of any grade of offense touching which they had none. Ramsey v. State (Ga.), 17 S. B. 613. Where there was some evidence of suicide, and the jury was Eroperly instructed that the guilt of accused should be shown eyond a reasonable doubt, it was not error to omit the charge that he was entitled to the benefit of any reasonable doubt raised by the evidence as to suicide. State v. Bradley, 24 A. 1053, 64 Vt. 466. Murphy v. State. 265 An instruction that, unless the jury were satisfied beyond a reasonable doubt that defendant killed deceased, they should find him not guilty, although not to be commended, in leading to the possible inference that, if thus satisfied, they were to find him guilty, does not contain a positive misstatement, and, where the killing is admitted, is not misleading. Fields v. State (Ind. Sup.), 38 N.' E. 780. Such an instruction, followed by the statement tiiat, if the jury were thus satisfied, and there remained a reasonable doubt as to whether the killing was with premeditated malice, defendant could not be found guilty in the first degree, is erroneous. Fields v. State (Ind. Sup.), 32 N. E'. 780. In a prosecution for homicide, defendant is not required to "satisfy" the jury that his act was justifiable, it being sullioient if the evidence for the defense raises in their minds a reasonable doubt of his guilt, and an instruction to the contrary is reversible error. Trogdon v. State (Ind. Sup.), 32 N. E. 725. It is not error to instruct that, " if the evidence in any case is sufficient to satisfy a jury to an extent whicli would justify them in acting upon the more important affairs of life, then the jury are satisfied beyond a reasonable doubt. United States v. Heath, 20 D. C. 272. A reasonable doubt of the guilt of one charged with conspijing against the United States is a doubt based on reason, and which is reasonable in view of all the evidence — an honest, substantial misgiving generated by insufficiency of proof — and not a captious doubt, or a doubt suggested by the ingenuity of counsel or jury, and unwarranted by the testimony ; nor is it a doubt born of a merciful inclination to permit defendant to escape conviction, or prompted by sympathy for him or those connected with him. United States v. Newton (D. C), 52 F. 275. An instruction that a reasonable doubt must be a substantial doubt, based upon the evidence or lack of evidence on the whole case, and not a mere possibility of innocence, is unobjectionable, aside from its verbosity. State v. Wells, 20 S. W. 232, 111 Mo. 538. The court, after giving an instruction requested by defendant as to circumstantial evidence, told the jury that the existence of any fact may be established by such evidence, if proven beyond a reasonable doubt; that absolute certainty was not required; and that a reasonable doubt is a doubt having a foundation in reason. Held, that such instruction was not erroneous, on the ground that it did not sufficiently define a reasonable doubt, since, if defend- ant desired a more explicit definition, he should have requested it. Conrad v. State (Ind. Sup.), 31 N. E. 805 ; 132 Ind. 254. Fed. CiiTM. Rbp., Vol. I.— 34 266 Federal and State Criminal Eeporter, Vol. L An instruction in a criminal case that " the presumption of law is that defendants are innocent, and this presumption continues with them until it is overcome by evidence, beyond a reasonable doubt, that they are guilty as charged ; a reasonable doubt is not a mere possibility of a doubt, but it must be a reasonable doubt, growing out of all the evidence and circumstances in evidence in the case," is a sufficient charge as to reasonable doubt. Territory V. Chavez (N. M.), 30 P. 903. An instruction is not erroneous, as giving the jury an idea that a reasonable doubt is but a small thing, which states that it ''does not mean anything more than " that the jury should be satisfied beyond a doubt which, as reasonable men, they would entertain in matters of moment to themselves ; that the doubt should arise on examination of the case, from either the evidence, statement of defendant, conflict in the evidence, or lack of evidence; and that it does not mean the doubt of an eccentric mind, crank, or men with an oversensitive conscience. Lewis v. Slate (Gra.), 15 S. E. 697. An instruction that a reasonable doubt is such as arises in the minds of conscientious men " from the consideration of the testi- mony " or from the absence of evidence, and not a mere fanciful doubt conjured up from "an overweening desire to acquit," is substantially correct. Hodgkins v. State, 15 S. E. 695, 89 Ga. 761. On the question of doubt, it is not error to charge that reasona- ble doubt cannot be said to exist where the jury are so firmly con- vinced of the facts necessary to establish defendant's guilt that, if it was a very grave and serious matter, affecting their own aflEairs, they would not hesitate to act on such conviction. Peoole v. Wayman (K Y.), 27 N. E. 1070; 128 N. Y. 585, and Miles v.'U. S. 103 U. S. 809, followed. People v. Hughes (N. Y.), 32 N. E. 1105 137 N. Y. 29. Ar. instruction that a mere possibility that defendant is not guilty does not amount to a reasonable doubt ; that the doubt must be a reasonable one, and " not a simple doubt," is not erro- neous. People V. Kerm (Utah), 30 P. 988. An instruction is unobjectionable, which charges the jury that a " reasonable doubt " must arise from the evidence, that it must be "sustained," and not "a whim" or "groundless surmise," and that there should be an acquittal if there is a doubt of guilt in the inward conscience, but that " there is no such thing as abso- lute certainty." Welsh v. State (Ala.), 11 So. 450. It is error to refuse to charge that a " reasonable doubt" is a doubt for which a reason can be given. Cohen v. State, 50 Ala. 108, approved. Hodge v. State (Ala.), 12 So. 164. Murphy v. State. 267 It is not error to omit from a request to charge on the law of reasonable doubt the phrase that "to doubt is to acquit," where the remainder of the instruction is in the most favorable form for defendant. Taylor v. Commonwealth (Va.), 17 S. E. 812. The court ened in refusing to charge that defendant was pre- sumed to be innocent until his guilt was shown by competent evidence, beyond a reasonable doubt, and that, if the jury had a reasonable doubt as to defendant's guilt, they should acquit. Pierce v. State (Tex. Or. App.), 22 S. W. 587. It is proper to instruct the, jury that it is not necessary to prove every fact and each link in the chain of circumstances relied on beyond a reasonable doubt, if the jury, taking all the evidence together, are satisfied beyond a reasonable doubt that the defend- ant is guilty. Weaver v. People, 24 N. E. 571; 132 111. 536, followed. Siebert v. People (111. Sup.), 32 N. E. 431. There was no error in refusing defendant's request that the burden of proof was on the prosecution, and if, from the whole evidence, the jury entertain a reasonable doubt of defendant's guilt, he is entitled to the benefit thereof, where the recorder, in his general charge, said that defendant was entitled to "the benefit of every reasonable doubt arising out of the evidence," and that he is presumed to be innocent "until that presumption is over- come by proof satisfactory to " the jury. People v. Pallister (K Y.), -33 N. E. 741; 138 N. Y. 601. Where, on a trial for the theft of a horse, defendant claimed to have purchased the same, the court properly instructed the jury to acquit defendant if the evidence raised a reasonable doubt " as to his having bought the horse." Gentry v. State (Tex. Or, App.), 20 S. W. 551. In a criminal case, where the court has charged the jury to ac- quit if there is a probability of defendant's innocence, it is proper for the court to define " probable " as " more evidence for than against, supported by evidence which inclines the mind to belief, but leaves some room for doubt." Williams v. State (Ala.), 12 So. 808. A charge on reasonable doubt, followed by the phrase, "I charge you, however, that in legal investigations mathematical certainty is not attainable," is not vitiated by the use of the word "however." McTyier v. State, 18 S. E. 140; 91 Ga. 254. An instruction that a doubt is not sufficient to justify acquittal unless it be such as would cause a reasonable and prudent man to hesitate and pause in the graver transactions of life, is correct. Boulden v. State (Ala.), 15 So. 341. An instruction defining " reasonable doubt " as such a doubt as would make a man of ordinary prudence waiver or hesitate ia 268 Federal and State Criminal Reporter, Vol. L arriving at a conclusion, in considering a matter of like import- ance to himself as the case on trial is to defendant, is not objec- tionable as requiring less positive proof of facts in cases of minor importance tlian in those of a graver nature. State v. Eosener S5 P. 357; 8 Wash. 42. An instruction which defines a " reasonable doubt " as " such a doubt as a juror can give a reason for," though open to criticism, is not revei-sible error, where it means, when read with the whole instruction given, that indefinable doubt, which cannot be stated with the reason on which it rests, cannot be considered a reason- able doubt. State v. Morej (Or.), 36 P. 573. It is error to refuse to charge tlie jury that, " if there is a prob- ability of the defendant's innocence, they must acquit." Prince V. St;ite (Ala.), 14 So. 409. Where the court charged that defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt, and, if there is a reasonable doubt of his guilt, he should be ac- quitted, a charge that, "if you believe the defendant innocent, vou will acquit him," is not misleading. Nowlan v. State (Tex. 'Or. App.), 25 S. W. 774. _ On a trial for assault with intent to murder, where the court, in his charge, applies the question of reasonable doubt to the whole case, he need not also expressly apply it to an alle£;ed con- spiracy to commit the crime charged. Stewart v. State (Tex. Or. App.), 26 S. W. 203. It is proper to instruct the jury that " the rea.'3onable doubt the jury are permitted to entertain must be as to the guilt of the ac- cused on the whole of the evidence, and not as to any particular fact in the case," and to refuse to instruct them to acquit if tliey entertain any reasonable doubt as to defendant's presence at the scene of the crime when it occurred. Carlton v. People (111. Sup.), 37 N. E. 244. An instruction that a reasonable doubt is such a doubt as naturally arises after considering all the evidence introduced, when reviewed in the light of all the facts and circumstances sur- rounding the same, was not erroneous, in that it permitted the jurv to consider all the facts, whether in evidence or not. State V. Case (Iowa), 65 N. W. 149. RULE HELD NOT APPLICABLE.— Failure to charge on rea- sonable doubt is error. State v. GuUette (Mo. Sup.), 26 S. W. 354. . There was no error in refusing an instruction that the jury must return a verdict of not guilty unle.ss convinced to an " abso- lute moral certainty" of defendant's guilt. People v. Hecker (Cal.), 42 P. 307. Murphy v. State. 269 Error cannot be predicated of the court's refusal to explain the term " reasonable doubt," it being difficult to explain the term so as to make it plainer. State v. Robinson (Mo. Sup.), 23 S. W. 1066; 117 Mo. 649. An instruction that a reasonable doubt is a substantial doubt of defendant's guilt, founded and based upon the evidence and all . the facts and circumstances proven in the case, and not a mere possibility of innocence; that, if the jury were not morally certain as to defendant's guilt or innocence, tlieti a reasonable doubt ex- ists, — was proper. State v. David (Mo. Sup.), 83 S. "W". 28. Where an indictment contains all necessary allegations, it is not error to charge that the state must prove beyond a reasonable doubt the material allegations of the indictment. Walker v. State (Ind. Sup.), 36 N. E. 356. A charge that, in order to convict, the evidence should be so convincing as to lead the mind to the conclusion that the accused " cannot be guiltless," is properly refused. Webb v. State (Ala.), 18 So. 491. An instruction which limits reasonable doubt to one element of the proof, instead of requiring it to arise out of all the evidence, is erroneous. Lyons v. People (111.), 27 N. B. 677. It is incorrect to charge that all of the various facts and circum- stances relied on to prove a fact must be proved bevond a reason- able doubt. State v. Crane (N. C), 15 S. E. 231 ; 110 N. 0. 530. It is erroneous to instruct the jury that " a reasonable doubt is such a doubt as the jury are able to give a reason for." Silberry v. State (Ind. Sup.), 33 N. E. 681. It is not error for the judge to refuse to define "reasonable doubt " in the words asked by defendant, no set formula being required. Stnte v. Whitson, 16 S. E. 332 ; 11 N. 0. 695. Defendant is not entitled to single out each material fact in a criminal action for an instruction as to acquittal, in case merely of a reasonable doubt as to the evidence in regard to such fact, but the doubt must be upon the whole case. State v. Wells (Mo. Sup.), 20 S. W. 232; 111 Mo. 533. The addition to an instruction that, " to warrant a conviction, defendant must be proven guilty so clearly and conclusively that there is no reasonable theory on which he can be innocent, when all the evidence is considered together," of the remark, '■ and if there is any one material fact, which is proved to the satisfaction of the jur3', by a preponderance of the evidence, which is incon- sistent with the guilt of the defendant, this is sufficient to raise a reasonable doubt," is misleading. State v. Judiesch (Iowa), 65 N. W. 157. 270 Federal akd State Cbimikal Reporter, Yol. I. A charge implying that, if evidence of defendant's good char- acter generates a reasonable doubt of his guilt, the jury may ac- quit, nothwithstanding the other evidence shows him guilty be- yond a reasonable doubt, is properly refused. Webb v. State (Ala.), 18 So. 491. Where the court has already instructed that the law presumes a person innocent until his guilt is proven by legal evidence, beyond a reasonable doubt, to the satisfaction of the jury, and, if the jury have such a doubt of the guilt of appellant, they should acquit him, it is not error to refuse further instructions as to the presump- tion of innocence and reasonable doubt. Countee v. State (Tex. Or. App.), 83 S. W. 127. It is proper to refuse to instruct a jury that, if any one of them entertained a reasonable doubt of the guil: of the accused, it would be the duty of the jury to acquit. Boyd v. State, 14 So. 836; 33 Fla. 316. An instruction to the effect that, though the facts proved are consistent with defendant's innocence, the jury are not bound to , acquit unless they have a reasonable doubt of his guilt, is errone- ous. Holder v. State (Ark.), 25 S. W. 279; 58 Ark 473. A charge that if the jury believe the evidence they must find defendant guilty as charged is erroneous as failing to require belief beyond a reasonable doubt. Harris v. State (Ala.), 14 So. 538. The court, having repeatedly charged that no mere weight of evidence is enough to convict unless it excludes all reasonable doubt, and is inconsistent with any other rational supposition, properly refused to charge, that no jury should convict on mere suspicion, or that they must be convinced bevond a reasonable doubt. Murphy v. State, 57 N. W. 361 ; 86 Wis. 626. A request to charge that, if there was any one single fact proved to the satisfaction of the jury, by a preponderance of the evidence, inconsistent with defendant's guilt, it was sufficient to raise a rea- sonable doubt, is too broad, and properly refused. Davidson v. State (Ind. Sup.), 34 N. E. 972. A charge that, if the jury believe the evidence, they must find defendant guilty, is error, as not requiring them to believe it be- yond a reasonable doubt Heath v. State (Ala.), 13 So. 689. In a trial for murder, an instruction to find the defendant guilty if the jury "believe from the evidence," etc., is erroneous, in omit- ting the clause " beyond a reasonable doubt." Pierson v. State (Ala.), 13 So. 550. On a trial for murder, the refusal to give an instruction that the jury must acquit if they have a reasonable doubt of defend- ant's guilt is reversible error. Forney v. State. 13 So. 540 ; 98 Ala. 19. Murphy v. Statk 271 On a trial for murder defendant requested a charge that, " while it is true that defendant is required to prove that he was of unsound mind at the time of the homicide by a preponderance of evidence, it is also true that upon the consideration of the test- imony of the whole case, if any reasonable doubt remains in the minds of the jury, defendant is entitled to a verdict of not guilty." The court did not refuse to so charge, but omitted to do so. Held, that the omission was error. McIVEE, 0. J., dissenting on the ground that the requested instruction was covered by the general charge. State v. Mcintosh (S. C), 17 S. E. 446. On an indictment for murder, an instruction that, if any reason- able doubt exist in the minds of the jury as to the credibility of any witness, they must give the benefit of the doubt to the pris- oner, is properly refused, it being unintelligible and misleading. Shipp V. Commonwealth (Ya.), 10 S. E. 1065. It is not error for a court to refuse to charge, on a trial for murder, that the defendant is entitled to "a reasonable doubt upon every and any question of fact in the cause." State v. Acker (K J.), 19 A. 258. On indictment for murder, an instruction which requires "clear and distinct proof" is erroneous in requiring a higher degree of proof than is necessary to convince beyond a reasonable doubt. Griffifth v. State (Ala.), 8 So. 812 ; 90 Ala. 583. On indictment for murder, an instruction which requires the jury to be " indubitably certain " of defendant's guilt, or to be able to say "where the truth indubitably lies," is properly re- fused, as requiring more proof than is necessary to overcome a reasonable doubt. Ross v. State (Ala.), 9 So. 357. An instruction to acquit of murder unless the jury have an abiding and "absolute" belief of defendant's guilt requires too great a measure of proof. ■ Whatley v. State (Ala.), 9 So. 236. On a murder trial it was not error for the court to refuse to charge "that, if the jury believe from the evidence that defendant is a man of good moral character, then that itself may generate a doubt, although none otherwise exists," as such charge would tend to mislead. Johnston v. State (Ala.), 10 So. 667. Where, on a trial for murder, the defense is insanity, it is error to charge that "to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, xhe party accused was laboring under such a defect of reason from disease of the mind as not to know the nature of the act he was doing," as the law only requires a preponderance of the evi- dence; and, where there is a reasonable doubt as to the sanity of the defendant, he is entitled to that doubt. Commonwealth v. Gerade, 22 A. 464; 145 Pa. St. 289 ; 28 W. N. C. 261. 272 Federal and State Criminal Eepobter, Vol. L On a murder trial the court is not bound to instruct the jury that, when the proof in favor of defendant is stronger and more direct than the evidence against him, there is room for doubt, and he ought not to be convicted Pool v. State (Gra.), 13 S. E. 556. On a murder trial, a request to charge with reference to doubt, with no qualification as to the doubt being reasonable, was prop- erly refused. Pool v. State (Ga.), 13 S. E. 556 ; 87 Ga. 526. In a criminal case, an instruction that, "if the jury believe all the evidenee, they cannot acquit defendant," is reversible error, as it does not require them to believe the evidence beyond a rea- sonable doubt. Hooks v. State (Ala.), 13 So. 767. Instructing the jury to find defendant guilty of murder if they " believe " that he formed a design to, and did, kill deceased, is erroneous, though, in another portion of the charge, the jury ia properly instructed as to reasonable doubt. Ehea v. State (Ala.), 14 So. 858. It is proper to refuse to charge that, " if there is a probable doubt of the guilt of the defendant, the jury must acquit' Prince V. State (Ala.), 14 So. 409. It is proper to refuse a charge that jurors should doubt or be convinced as men. People v. Johnson (N. Y.), 35 N. E. 604j 140 N. Y. 850. It is error to instruct that "if you have not an abiding convic- tion, to a moral certainity, of the truth of the charge against de- fendant, you have such a reasonable doubt that will warrant you in returning a verdict of not guilty ; otherwise you have not a reasonable doubt that will warrant an aquittal,"T— as such instruc- tion is confusing and misleading. United States y. Eomero (Ariz.), 35 P. 1059. A request to charge that, "if there is, from the evidence, a rea- sonable possibility of defendant's innocence, the jury should ac- quit," is properly refused, since there may be evidence to suggest a "possibility" of innocence, and yet, from the whole evidence, no reasonable doubt of defendant's guilt. Sims v. State (Ala.), 14 So. 560. It is proper to refuse to instruct the jury that " the degree of evidence required to convict a defendant in a criminal case must be such as to remove all doubt from the mind of a reasonable man," since a reasonable man may have an unreasonable doubt Padfleld v. People, 35 N. E. 469; 146111. 660. An instruction that proof of' contradiction on the part of a wit- ness may be sufficient to raise reasonable doubt of the truth o£ her testimony and if the jury have such reasonable doubt, they should reject her testimony, and not consider it, is properly de- nied. Green v. State (Ala.), 12 So. 416. MuKPHY V. State. 273 Where the evidence in a criminal case is whollj circumstantial, it is error to instruct the jury that they need not be satisfied be- yond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt. Graves v. People express statutory author- ity for an appeal in forma pauperis." 1 Eno. PL & Prac, p. 999. There is no statute in this state authorizing an appeal in forma pauperis in civil cases, and hence appeals must be taken and per- fected in the same manner by all appellants, whether rich, or in- digent. The appeal is dismissed. HOYT, 0. J., and GOKDON, J., concur. Supreme Court of North Carolina.. riled December 23, 1895. STATE V. BLANKINSHIP. Appeat,— Exceptions— Waiver. Where an exception, though the refusal to charge is excepted to, is not set out by the appellant in stating his case on appeal, it ia ■waived. J. M. Gudger, Jr., for appellant. The Attorney General, for the State. CLARK, J. — The defendant asked certain instructions which were not given. The refusal is deemed excepted to, but, if the exception is not set out by the appellant in stating his case on appeal, it is waived. Taylor v. Plummer, 105 N. 0. 56; Mar- fihall v. Stine, 112 N. C. 697; Davis v. Duval, 112 K 0. 833. Indeed, no exception whatever appears to have been made, and, Fed, CniM. Rep., Vol. I.— 48 S78 Federal and State Criminal Eeporter, Vol. I. no error appearing upon the face of the record proper, the judg- ment must be affirmed. See numerous cases cited in Clark's Code, p. 682, subhead, "Where 'No Errors are Assigned." Affirmed. Supreme Court of Iowa. Kled December 12, 1895. STATE V. STKOHBEHK Appeat,— Record. In the absence, of a statement in the abstract that it contains all the evidence, the court cannot consider the objection that the yerdict is not supported by the evidence. Appeal from a judgment convicting the defendant of the crime of rape. Schmidt & Vollmer, for appellant. Milton Eemley, Atty. Gen., for the state. DEEMEK, J. — There is no statement in the abstract that ■we have all the evidence, nor does it purport to contain the entire record. True, we have a copy of the certificate of the short- hand reporter, and of the bill of exceptions signed by the judge, but they are not sufficient. State v. Hogan, 81 Iowa, 747, 43 K W. 903; State v. Day, 58 Iowa, 678, 12 K "W. 297; State V. Erench (decided at the present term) 65 W. "W. 156. On the first page of the abstract, we find this statement: "Agreed Abstract of Record." This would ordinarily be sufficient, in the absence of a denial, to show that the abstract was agreed to. Eut in this case the abstract does not purport to be signed by any one, not even by the attorneys for appellant; and the attorney gen- eral, in effect, denies that the abstract was agreed to. If we should hold, however, that it is an agreed abstract, we cannot give it State v. Cox. 879 any more extended effect than it purports on its face to have. All that can properly be claimed for it is that it shows that certain Avitnesses' testimony was taken upon the trial in shorthand, and that afterwards these notes were extended and filed in court, and this testimony is set forth in the abstract. There is no claim anywhere that this was all the testimony introduced upon the trial, and no agreement to this effect, even if it be conceded that the abstract is an agreed one. The principal complaint lodged against the verdict is that it is not supported by the evidence. As we do not have all that was introduced in the court below, we cannot consider this objection, 2. Certain instructions are complained of. We have ex- amined each and all which are attacked, and find that they con- tain correct statements of the law. Whether they were appli- cable to the facts proved, or whether the court erred in not giv- ing more elaborate ones, we cannot determine, for the reasons stated in the first division of this opinion. For the reasons stated the judgment is affirmed. Supreme Court of Iowa. Filed December 12, 1895. STATE V. COX. Appeal— Record. Where the record is fully presented, but -withoTit briefs or argu- ment, it is the duty of the court to examine the record. Appeal from a judgment adjudging the defendant guilty of rape. Lynn & Sullivan, for appellant. Milton Eemley, Atty. Gen., for the state. 380 Federal and State Criminal Reporter, Vol. L PEE CUEIAM. — The record in this case seems to be fully presented, tut without briefs or argument. It is our duty in such a case to examine the record, which we have done. The evidence is not of the most satisfactory character, but it is such that the questions were for the determination of the jury, and wo should not disturb its findings. In our reading of the instruc- tions we discovered no error or unfairness in the submission of the case. The defendant's rights seemed to be well guarded in presenting the law. The judgment is imprisonment in the penitentiary for five years. If the defendant is guilty, the pun- ishment is not excessive. The judgment is afiirmed. Supreme Court of Iowa. riled December 11, 1895. [ STATE V. LEWIS. ' WXTNESS— PRIvrLEOB. "^ Where a witness is, upon his refusal to answer questions before tlie grand jury, taken before the court, the court may, after fully instructing him as to his rights, direct hinx to return for further examination before the grand jury. 2. Same— Qeand jury. The examination of a witness before the grand jury is no part of the record of the court. 3. Criminal law— Indictment — Indorsement Section 4337 of the Code does not require that the names of wit- nesses before the grand jury who gave no material testimony should be indorsed on the indictment nor that the minutes of the testi- mony shall be returned and made of record. 4. Witness— Grand jury. • The grand jury may examine a witness, so long as he is not re- quired to answer questions which may incriminate him. 5 Criminal law — Extortion. The statute is directed against threats to accuse another of a crime, or to do any injury to the property of another with intent to extort. State v. Lewis. 381 6. Same— Indictment. In statutes, which make difEerent acts a crime, and state the acts disjunctively, all of the acts may be set out in the indictment in conjunctive form. 7. Same. An indictment for extortion is not insufficient because the threatening words, writings and printed communications are not set out therein. 8. Same — Assistant counsel for prosecution. Attorneys, whose alleged employment by defendant is not com- plete, but merely conditional, and who had made no investiga- tion of has defense and sustained toward him no confidential rela- tions growing out of not consulting with him in reference to the case, may be allowed to appear as assistant counsel in the case in behalf of the state. 9. Evidence — Extortion— Codefendant. Where defendant and another are jointly indicted and charged with making threats to extort money, and the court carefully guards the rights of the defendant by proper instructions, evidence of the acts of his co-defendant are properly admitted. 10. Same— Similar attempts. Upon the trial of an indictment for conspiracy to commit extor- tion, the prosecution may be permitted to introduce evidence con- cerning other instances of extortion and attempts to extort for the purpose of aiding the jury in determining with what intent de- fendant acted in the transaction set out in the indictment. 11. New trial — Nkwlt discovered evidence. A motion for a new trial on the ground of newly discovered evi- dence will be overruled where the evidence was discovered before the close of the trial. Lewis, Holmes & Beardsley and M. C. Jay, for appellant. Milton Eemley, Atty. Gen., T. E. Bevington, Co. Atty. Wood- bury Co., P. Farrell, Co. Atty. Plymouth Co., and George "W. Argo, for the state. EOTHEOCK, J. — 1. It is necessary to make a statement of facts preliminary to the finding of the indictment, to the end that some of the questions presented by the appeal may be under- stood. It appears that in the summer and fall of the year 1892 there were sold and circulated in Sioux City a large number of copies of a weekly newspaper called the "Sunday Sun." The paper was printed in the city of Chicago, and large numbers 882 Federal and State Criminal Reporter, Vol. I, were sent to Sioux City for sale. The defendant Lewis was in charge of the circulation in Sioux City. He had an office or place of business, and he held himself .out as the local editor; that is, he had charge of the preparation and furnishing the local items or articles which it was thought would cause a demand for the papers at that place. The paper purported to be published in the interest of good morals, and to correct and reform the character and standing of the people in the localities where it was put in circulation. It is imnecessary to state more in the way of facts, in this connection, than that this whole record shows that the object of the publication was to extort money from prominent citizens, by means of threats and covert insinuations of the purpose to expose their crimes and shortcomings in said newspaper. In some cases knowledge was brought to the victims selected, of the purpose to publicly expose them, by squibs and innuendoes in the paper. In other cases the purpose was made manifest by actual notice of the proposed exposure. The result was that many of the persons thus threatened paid considerable sums of money in order to suppress the proposed publication, and thus save themselves from public obloquy and disgrace. At the time of the publication and sale of the news- paper, the appellant, Hart, was a resident of Dakota City, in Nebraska, some six miles from Sioux City. He was not osten- sibly connected with Lewis in the sale and distribution of the papers. The ground upon which the prosecution claimed that he was a guilty party in the enterprise was that the facts show that he was the hypocrite or go-between, who made settlements with the victims, and that, while he was sharing the profits of the business, he did so by pretending that he was actuated by pure friendship for the persons threatened, and without recompense or reward. The defendant Lewis was arrested on several war- rants issued by justices of the peace. The appellant. Hart, was also arrested on two waiTants ; but his cases Were continued, and ■when the grand jury which found the indictment in this case, as well as several other indictments against Lewis, and one or more indictments against another party, was organized, tlier© State v. Lewis. 383 had been no preliminary examination on the prosecutions against Hart. The grand jury convened on the 19th day of January, 1893, and proceeded to investigate the charges of extortion against Lewis. A subpoena was issued for Hart to appear forthwith before the grand jury, that he might be ex- amined as a witness. There is some claim made that he was arrested on the subpoena, and many other statements are made as to hurrying him into the jury room against his consent. This is disputed, and, as we think what occurred before the grand jury is no part of the record in this case, we will not undertake to settle that dispute. It is conceded, that Hart asked to con- sult his attorneys, and was allowed to do so, and the grand jury then proceed to examine him as a witness. He refused to answer any questions touching the charges against Lewis. Section 4287 of the Code is as follows: "AVhen a witness under examination before the grand jury refuses to testify or to answer a ques- tion put to him by the grand jury, the grand jury shall proceed with the witness into the presence of the court and the foreman shall then distinctly state to the court the refusal of the witness, and if the court upon hearing the witness shall decide that he is bound to testify or answer the questions propounded he shall inquire of the witness if he persists in his refusal, and if he does shall proceed with him as in cases of similar refusal in open court." When appellant refused to answer questions, he was taken before the court, as required by this statute. It is not an extravagant statement to say that the proceedings before the court were such as probably never before occurred in a court of justice. The questions were propounded to the witness, and he refused to answer. Counsel for the state examined the witness for a time. Counsel for the witness asked for an order on the justices of the peace to bring in their dockets to show up the cases on preliminary examination, and the order was made, and the justices of the peace were examined in reference thereto. The witness continued his refusal to answer, but later on he made answer to the questions, in these words, "I refuse to answer because the answer might teijd to expose me to a criminal charge^ 384 ^Federal and State Criminal Eeportek, Vol. L and because tlie answer might constitute a link in the chain of evidence that would subject me to a criminal charge." After a lengthy examination, which was interspersed with objections and arguments, — the coun.sel for the witness contending that the state had no right to examine the witness before the grand jury, or to require him to appear to testify to any fact in con- nection with the Sunday Sun publication, and counsel for the state contending that the witness should be compelled to testify to all facts which would not tend to criminate him, — the matter was concluded, and the court decided that under the facts the witness should return to the grand jury for further examination. In the course of the decision the court used this language: "As I understand, any man may be called before the grand jury ia any case, and may be asked any question which, in the judgment of the grand jury, is pertinent to the matter under investigation. It is the right of the grand jury. It is the right of the party called, when called and questioned, to claim his privi- lege, and refuse to answer because the answer would tend to criminate him. Now, if he refuses to answer on these grounds, unless the court is satisfied that he is mistaken as to that, I think the court ought to excuse him from answering, and in this case the ruling of the court will be that the witness is excused from answering, in view of the record as it now stands." There was surely no just ground of complaint because the court directed the witness to return for further examination before the jury. He was fully instructed as to his rights, and it would have been an unwarranted exercise of judicial power to direct the grand jury that they should not proceed with a proper examination of the witness. * 2. The grand jury returned to the jury room, and the witness , was further examined. Several indictments were found against the parties engaged in the Sunday Sun enterprise. Hart's name was not indorsed as a witness on any of the indictments, and no minutes of his evidence were returned by the grand jury to the court. After the filing of the indictments, the appellant filed a motion asking' that the testimony .of appellant taken before the State v. Lewis. 385 grand jury by the stenographic reporter who was appointed clerk to the grand jury during said investigation, be attached and made part of the record in the cause. This motion was overruled. ,We think this ruling was correct. The examination of the witness before the grand jury is no part of the record of the court. The law requires that when an indictment is found the names of all witnesses on whose evidence it is found must be indorsed thereon, before it is presented to the court, and the minutes of the evi- dence of such witnesses must be presented with the indictment to the court, and filed by the clerk of the court, and remain in his office as a record. Code, § 4293. As we have said. Hart's name was not indorsed on the indictment, and the minutes of his evidence were not returned. They were no more a part of the record than any other evidence which the grand jury did not think of sufficient importance to return as part of the evidence upon which the indictment was found. Notwithstanding the refusal to make the stenographic reports of record, the counsel for appellant, assuming that it is of record, because it was pre- sented with the motion which was overruled, claims that the ex- amination of the defendant as a witness is ground for setting aside the indictment. It is true that the statute (Code, § 4337) pro- vides that the indictment must be set aside "when the names of all the witnesses examined before the grand jury are not indorsed thereon; when the minutes of the evidence of the witness ex- amined before the grand jury are not returned therewith." But this does not require that the names of witnesses before the grand jury who gave no material testimony should be indorsed on the indictment. State v. Little, 42 Iowa, 51. And surely, if the grand jury should be of opinion that the name should not be indorsed for that reason, there can be no requirement that the minutes of the testimony shall be returned and made of record. A number of adjudged cases are cited by counsel upon the sub- ject of the right of a party to be exempt from testifying to facts which connect him with the commission of crime. Nearly all of these cases arise upon the refusal of a witness to testify, and Ped. Crim. Rep., Vol. 1—49 FEDERAL AND StATE CRIMINAL EePORTER, YoL. L his rights in proceedings against him for contempt for such re- fusal. It is a general rule that no one can be required to testify in any case, or in any legal proceedings, to facts which would tend to render him criminally liable, and that rule is part of our statutory law. Code, § 3647. But we know of no reason why a witness before a grand jury may not be examined as to n criminal charge, as against another, even though he may bo liable to prosecution for the same oii'ense. That is no reason why a grand jury may not examine him as a witness, so long as he is not required to answer questions which may criminate him. The law exonerates him from answering self -criminating questions, but it goes no further than that. We have given this question quite full consideration, because in the printed and oral argu- ments it appeared to us to be the main ground upon which a reversal was demanded ; and we may say in conclusion that under the law in this state, as settled in the case of State v. Little, supra, these mimites are not only no part of the record in the case, but that the court had no authority to make them of record. 3. Another ground of the motion to set aside the indictment was that the grand jury was not selected, drawn, and summoned as required by law. We will not set out the evidence in con- nection with this objection to the indictment. The abstract filed by the state, when considered in connection with appellant's abstract, shows that the jury was selected and drawn in sub- stantial compliance with all the statutory requirements. 4. After the motion was overruled the defendant filed a de- murrer to the indictment, upon the following grounds: "(1) That it does not substantially conform to the requirements of the Code, in that it attempts to charge more than one oifense; (2) the statements of facts in the indictment are insufficient to constitute a crime." The statute under which the indictment was found is as follows: "If any person either verbally or by written or printed communication, maliciously threaten to accuse another of a crime or offense, or to do any injury to the person or property of another with intent thereby to extort any money cr pecuniary advantage whatever, or to compel the person so State v. Lewis. 387 threatened to do any act against his will lie shall be punished," etc. The indictment was in these words: "The said J. L. Lewis and Atlee Hart, on or about the 15th day of N"oveniber, in the year of our Lord one thousand eight hundred and ninety- two, in the county aforesaid, did unlawfully, willfully, malici- ously, and feloniously, by verbal, written, and printed communi- cations, threaten to accuse Daniel T. Hedges and Daniel T. Oilman of having carnal knowledge of certain women, whose names are to the grand jury unknown, and of being guilty of a crime and offense, to wit, the crime of adtiltery, said Daniel T. Hedges and Daniel T. Gilman being then and there married men, each of them having a lawful wife living; and did then and there, unlawfully, willfully, maliciously, and feloniously, by said verbal, written, and printed communications, further ma- liciously threaten to wrongfully injure the persons and property of said Daniel T. Hedges and Daniel T. Gilman ; the said Daniel T. Hedges and Daniel T. Gilman being then and there bankers and real-estate men, and being engaged in the banking and real- estate business; that is to say, to maliciously injure, greatly dam- age, and break down their said business, and to prevent, hinder, and delay said Daniel T. Hedges and Daniel T. Gilman from successfully and profitably carrying on and conducting their said business, causing loss and ruin to the same; all done with intent on the part of said defendants thereby to extort from said Daniel T. Hedges and Daniel T. Gilman a large sum of money, to wit, twelve hundred dollars, and to compel the said Daniel T. Hedges and Daniel T. Gilman, so threatened, to deliver to said defend- ants, against the will of said Daniel T. Hedges and Daniel T. Gilman, money as aforesaid ; all done by said defendants in vio- lation of law, and against the statute in such case made and pro- vided." Section 5685 of the Code (McLain's Ann. Code) piovides that an indictment must charge but one offense. It is argued in behalf of appellant that the indictment is bad be- cause it charges that the defendants threatened to accuse Hedges and Gilman of the crime of adultery, being one offense, and also threatened to wrongfully injure the person and property of 888 Federal and State Ckiminal Reportek, Vol. I. Hedges and Gilman, whicli is ariother offense. We think this is a mistaken view of the indictment, and of the statute under which it was found. The statute is directed against threats to accuse another of a crime, or to do any injury to the property of another, with intent to extort. It has uniformly been held by this court that in statutes like this, which make different acts a crime, and state the acts disjunctively, all of the acts may be set out in the indictmentinconjunctivefonn. Statev. Barrett, 8 Iowa, 539; State V. Baughman, 20 Iowa, 498; and many other cases to be found in our digests. The rule is well expressed in 1 Bish. Or. Proc. § 586, as follows: "If a statute makes it a crime to do this or that, mentioning several things disjunctively, all may be charged in a simple count, but it must be the conjunctive 'and' where 'or' occurs in the statute. All are but one offense, committed in different ways, and proof of it in any one of the ways will sus- tain the allegation." Under the second ground of demurrer, it is insisted that the indictment is insufficient because the threatening words, writings, and printed communications should be set out in the indictment. "We do not think this was required. The thought of counsel appears to be that the crime of mak- ing threats with intent to extort is like cases of slander and libel, where the slanderous words or libelous writings are required to be pleaded. In this indictment the threat is set out in general ternis, as a threat to accuse Hedges and Gilman of the crime of adultery. This is sufficient. State v. Moulton, 108 Mass. 307. 5. The demurrer having been overruled, the next question arose upon an objection by defendant to the firm of Argo, Mc- Duffie & Kichman being allowed to appear as assistant coimsel in the case, in behalf of the state. The ground of the objection was that said firm had been employed to assist in the defense of appellant, and had abandoned the employment, and for that reason they should not be allowed to aid the prosecution. A fixU hearing was had on this matter. Affidavits were presented and witnesses were examined in open court, and the court decided that there was no just ground for sustaining the objections. "We will not discuss the evidence on this side issue in the case. The State v. Lewis. 889 whole of the evidence lias been examined, and the decision of the court is in the record; and we concur with that decision, in holding that the alleged employment of the firm by defendant was not complete, but merely conditional, and that they had made no investigation of the appellant's defense, and sustained towards him no confidential relations growing out of any consultation with him in reference to the case. The objections were properly overruled. 6. We have now reached the trial of the case. No objec- tion was made upon the impaneling of the jury. Many witnesses were examined on the part of the prosecution. It is urged with great earnestness that the verdict was without support in the evidence, and that the motion for a new trial should have been sustained on that ground. We have given the facts disclosed in the evidence most careful consideration, which has taken much time, as the abstracts in the case are unusually voluminous, being nearly six hundred pages. Of course, it will be under , stood that we ought not to undertalie to discuss the evidence in detail. It will be sufficient to state our conclusions. The Sun- day Sun was circulated and sold by Lewis in Sioux City for two purposes. One was the revenue derived from its sale, which arose largely from the fact that it was known to be a sensational publication, depending on patronage by reason of its attacks upon leading citizens of the city. The other, and, so far as appears from the record, its principal, source of revenue, was the money received from those who were threatened with exposure in its columns. The threats were not open and direct, but they were none the less threats, the same as if the statements were made that if money was not paid the publication of the scandal wotild appear. The question of the defendant's guilt depends upon the fact whether the evidence shows that he was associated and acted in conjunction with Lewis in the scheme to extort money. 'As we have said the theory of the defense is that he had no con- nection with Lewis, further than to intercede with him, and obtain from him terms of settlement with the persons selected as victims. We think the jury was fully warranted in finding 390 Federal and State Criminal Eeporter, Vol. L that the claim of friendship was a mere pretense. The instances in which he made settlements are too numerous to be attributed to disinterested friendship. It appears to have been generally imderstood that he was the person who effected the settlements. In one or more instances he took promissory notes payable to his own order. And there is direct evidence as to his guilt in the attempt to extort from Gilman and Hedges. "We do not regard it as necessary to further discuss the question as to the general effect of the evidence. The record is full of facts and circumstances which point plainly and clearly to his guilt. 7. It is said that the court erred in permitting the prosecution to introduce evidence concerning other instances of extortion and attempts to extort than that set forth in the indictment. It is to be remembered that Lewis and Hart were jointly indicted, and jointly charged with making threats to extort money from Gilman and Hedges. The court carefully guarded the rights of the defendant as to these acts by instructing the jury, unless it was found from the evidence that there was a general conspiracy or agreement entered into by Lewis and Hart to carry on a gen- eral system of extortion, the acts of Lewis should not be con- sidered as evidence against Hart. And the jury were further instructed that evidence tending to show that Hart was connected with other similar offenses should be considered only for the purpose of aiding the jury in determining with what intent Hart acted in the transaction set out in the indictment. When these other facts and circumstances were thus guarded, there was no error in permitting the introduction of the evidence last above referred to. State v. Saunders, 68 Iowa, 370, 27 N. "W. 455: State v. Jamison, 74 Iowa, 617, 38 IsT. W. 509. In 7 Am. & Eng. Enc. Law, 780, it is said, "It is now generally held that, for the purpose of proving the intent, evidence of similar pretenses made about the time and in the same neighborhood, to other persons, of the pretenses alleged in the indictment, may be introduced." It is unnecessary to cite authority in support of the correctness of the ruling admitting evidence of the acts of Lewis upon the theory that the defendants were engaged State v. Feurerhaken. 391 jointly in a common undertaking to profit by extortion from sucli victims as they might select as subjects. The rule is elementary. And we ^o not think that any improper evidence of this kind •was introduced. It all appears to relate to a time while the joint enterprise was being carried out. 8. There are many other alleged errors presented and dis- cussed by counsel, which we do not thinlf demand special men- tion. We have examined them, and find no error. They relate to alleged errors in the admission and exclusion of evi- dence, errors in the charge to the jury, and in refusing to give instructions asked by the defendant. The instructions given were full and complete, and covered every question necessary to be considered under the evidenc-e, and they are in accord with instructions in criminal cases which have been frequently approved by this court. One ground of the motion for a new trial was founded upon newly-discovered evidence supported and resisted by affidavits. The court did not err in overruling this motion, if for no other reason than that the evidence was dis- covered before the close of the trial. The judgment of the district court is affirmed. Supreme Court of lowai I'iled December 11, 1895. STATE V. I'EUKEEHAKEK 1. Evidence— Rbobiting stolen goods. It is competent, on the trial for receiving stolen goods, to show by witnesses, who actually stole the goods, the previous course of dealing between them and the defendant. 392 Federal and State Criminal JIepobxek, Vol. I. 2. Criminal law — Keceivisg stolek goods — Instruction. An instruction, upon such trial, that, if the jury "find that all the facts and circumstances surrounding' the receiving- of the g-oods by defendant were such as would reasonably satisfy a man of defendant's age and intelligence that the goods were stolen, or if he failed to follow up such inquiry so suggested, for fear he would learn the truth and know the goods were stolen, then the de- fendant should be as rigidly held responsible as if he had actual knowledge," is not objectionable. 3. Indictment — Duplicity. Though the words are used disjunctively in the statute which makes it a crime for any one to buy, receive or aid in concealing any stolen goods, etc., it is g-ood pleading to use them in the in- dictment in conjunction, and such use does not involve more than one charge. 4. Same. In such indictment, it is not necessary to name the person from whom the goods were received. 5. Same — A ccomplice — Coeroboration. It is not necessary that an accomplice should be corroborated to every material fact to which he testifies. 6. Same. The corroboration need not be by the testimony of witnesses alone; it is sufBcient if it be by circumstances or circumstantial evidence. 7. Same— Weight. The weight of the corroborating evidence is for the jury. Appeal from a judgment convicting defendant of the crime of receiYing stolen goods. riickinger Bros., for appellant. Milton Remley, Atty. G-en., for tie State. DEEMEE, J. — Defendant was charged -with having re- ceived and aided in concealing certain dry goods, consisting, among other things, of sixty-three hoods, ninety-four handker- chiefs, twenty and one-half yards of veiling, one hundred and Bixty-six yards of lace, ten hose supporters, eight belts, and other property, of the aggregate value of $ 8 2 . 9 3 . It is further charged that this property was all stolen from the Chicago & Northwestern Eailway Company, and that the defendant knew it was stolen State v. Fkukerhaken. iJOS at the time he received it. The state relied upon the testimony of Adolf Kolb and Peter Knecht, who, it seems, stole the prop- erty, together with the testimony of other witnesses, tending to show that the goods were actually stolen, that they were con- cealed by the defendant, and that, upon being accused of hav- ing received the stolen goods, defendant at first denied it, but after- wards disclosed their whereabouts to the officer who was searching therefor, 1. In the examination of the witness Kolb, the state was per- mitted to inquire into transactions between him and defendant with reference to other stolen property at a time antedating the commission of the crime charged, and the same line of examina- tion was permitted as to the witness Knecht. And in the fifth instruction given by the court the jury were told, in substance, that they might consider these transactions for the purpose of determining whether he received the goods in question with knowledge of their having been stolen. Each and all of these matters are complained of. We think there is no doubt of the correctness of this procedure. It was certainly competent to show the previous course of dealings between these parties; for if defendant had, prior to the time in question, been receiving from these men property which he knew to have been stolen, it certainly tends to show his knowledge that these particular goods were stolen 2. In another instruction the court, among other things, said: "If you find that all the facts and circumstance surrounding the receiving of the goods by defendant were such as would rea- sonably satisfy a man of defendant's age and intelligence that the goods were stolen, or if he failed to follow up such inquiry so suggested, for fear he would learn the truth and know that the goods were stolen, then the defendant should be as rigidly held responsible as if he had actual knowledge," etc. The use of the word "rigidly" is objected to. Taken in connection with the whole instruction, we think it means no more than "to the same extent," or "exactly," and that with this meaning there k no error. Fed. CniM. Rep. , Vol. I.— 50 894 Federal and State Criminal Eeporter, Yol. L 3. The indictment charges defendant with having bought, received, and aided in concealing stolen goods. It is claimed that it is bad for duplicity. The statute makes it a crime for any one to buy, receive, or aid in concealing any stolen goods, etc. The words are used in the statute disjunctively, and in the indictment in conjunction. This is proper pleading, and does not involve more than the one charge. State v. Phipps (Iowa) 64 N. W. 411, and cases cited. See, also. State v. Lewis (de- cided at present term) 65 N. W. 295. It is said the indict- ment is bad because it does not state of whom the goods were received, nor who the defendant aided in concealing them, nor that defendant received them with a felonious intent, or with intent to deprive the owner thereof. The indictment, however, does charge a felonious intent to defraud the Chicago & ITorth- western Railway Company. It is not necessary to name the person of whom the goods were received. There is no such re- quirement in the statute, and such a statement is not needed to enable a person of common understanding to know what is in- tended, or the court to pronounce judgment, upon a conviction, according to the law of the case. The case of Shriedly v. State, 23 Ohio St. 139, is directly in point. See, also, 2 Bish. Gr. Proc. §927. 4. In the seventh instruction the court told the jury, in effect, that they could not convict on the testimony of Kolb and Knecht unless they were corroborated by other evidence tending to connect the defendant with the commission of the offense charged, and that this corroborating evidence must go "not only to the fact of receiving the goods, but also to the fact that the goods were stolen." The instruction is complained of because it does not also require corroboration of the testimony of these accomplices to the fact that defendant knew the goods were stolen when he received them. The instruction is clearly irC line with the thought expressed in the case of Tipton v. State, 5 Iowa, 466. And it is familiar doctrine that "it is not necessary that an accomplice should be corroborated in every material fact to which he testifies. If the jury are satisfied he speaks tha State v. Feurerhaken. 895 trutli in some material part of his testimony, in wliicli they see him confirmed by unimpeachable evidence, this may be ground for believing that he also speaks the truth in other parts, as to vfhich there may be no confirmation." State v. Van Winkle, 80 Iowa, 15, 45 IST. "W. 388. But the instruction complained .of proceeds as follows: "But the corroboration need not be by the testimony of witnesses alone. It is sufficient if it be by circumstances or circumstantial evidence. And in this case, if it is shown that the goods in question, or some part thereof, were found in the possession of the defendant, and if it is also shown that the defendant concealed or hid them, or denied having them, when the parties called to search the house, such evidence would be corroborating evidence; but the weight and sufiiciency of the corroboration you must determine." Taking the whole instruction together, and construing it in the light of the testimony, we think there is no error, whatever may be said as to the incompleteness of the first part of it, before referred to. The case of Jenldns v. State (Wis) 21 K W. 232, supports the conclusions here announced. See, also, 1 Am. & Eng. Enc. Law, note to page 80; Reg. v. Birkett, 8 Car. & P. T32; Com. V. Savory, 10 Cush. 535; People v. Weldon (N. Y. App.) 19 N. E. 279. Another point made against the instruction is that there is no evidence to sustain the last paragraph. Some of the testimony has evidently been overlooked by appellant's counsel, who, we may observe, did not try the case in the court below. There is evidence tending to show that defendant denied having received the goods, and to the effect that they were concealed in a back room, in an old chest, "covered over with a lot of old harness and other stuff." 5. It is further contended that the evidence is not suffieient to justify the verdict. This is predicated largely upon the thought that there was no corroboration of the testimony of Kolb and Knecht; for, if their testimony is to be believed, and they are corroborated as the law requires, there can be no doubt of the correctness of the verdict. As has already been stated, we find there is corroborating evidence to sustain these accomplices, 396 Federal and State Criminal Eefobtee, Vol. L and, under well-known rules, its weight was for the jury, -and we cannot interfere. Copies of some affidavits made by these accomplices are appended to appellant's argument. These we cannot consider. They should be taken to another department of government for consideration. We are united in the conclu- sion that, while the evidence as to guilty knowledge may not be conclusive, yet we cannot interfere. Affirmed. Supreme Court of Iowa. Filed December 12, 1895. STATE V. KOWOLSKI. 1. Highways— Steam engines. Under chapter 68, Acts 24 Gen. Assem., the law as to the stopping of the engine and the keeping of a marl in front is alike applicable to all teams that are to pass the engine, whether from front or rear. 2. Appeal — Harmless. The exclusion of a proper question is no ground for reversal, where the same fact appears from the evidence admitted as the excluded testimony was intended to establish. 3. Highways — Steam engines — Defense. The avoidance of danger by leaving the traveled track is not a valid excuse for the violation of the specific provision in the statute as to the crossing of culverts with such engines. 4. Same. Upon the trial of an information under said act, the refusal of the court to permit defendant to show that he kept a person on the lookout, but in a different way from that prescribed by law, is right. State v. Kowolskl ,897 5. Same— Instruction. Upon such trial, an instruction that a person operating' such en- gine on the highway must stop it for the passage of teams passing either way, unless to stop would be dangerous to life or limb, is not objectionable. 6. Same — Indictment — DtjpTjICitt. An information, under said statute, which charges the offense as having been committed by failure to have a man in front of the engine, and also in failing to stop, is not bad for duplicity. Appeal from a judgment adjudging defendant guilty of pro- pelling a steam engine on the highway without having a com- petent man in front, and in not stopping such engine as by law required. "Welch & Welch", for appellants. Jesse A. Miller, with Milton Eemley, Atty. Gren., for the State. GRANGEK, J". — The following is 'the charging part of the indictment: "Eor said defendants did on or about September 3, 1894, in South Fork township, said county, drive, or cause to be driven, a steam engine, being propelled by steam, on and over the public highway, and did not have a competent man in front of said engine, to assist persons passing the same to control their horses or animals, and did not stop said engine when one hundred yards distant from persons going on said highway with horses or other animals, until the same had passed, and failed to render any assistance to any one passing on the public highway, contrary to the statute," etc., The cause of the complaint, as shown by the evidence, is that, while defendants were moving their engine and thresher along the highway, the thresher being about one hundred feet behind the engine, a Mrs. "Williamson, with her little girl, and another lady, driving a horse, came up and passed the thresher, and as they approached the engine it turned out of the track; as they supposed, to let them pass, and as they were 898 Fedehal and State Ceiminal Repokter, Vol. L opposite the engine the horse took fright and ran away. The indictment is founded on the following provisions of chapter 68, Acts 24:th Gen. Assem. : "That it shall be the duty of persons in charge of steam engines, being propelled upon the highways of the state, wholly, or in part by steam power, to stop said en- gine whenever it is 100 yards distant from any person or persons going on said highway with horses or other animals until said horses or other animals shall have passed, and sooner in case said horses or other animals become frightened before arriving at said distance. The owner or driver of said engine shall also keep a competent man not less than fifty nor more than one hundred yards in front of said engine, to assist in controlling any horse or other animal being driven or used on said highway, until said horses or other animals shall have passsed by said engine, and it shall be the duty of said man to use all reasonable care and dili- gence to prevent the occurrence of any accidents which might re- sult in case said horses or other animals become frightened at said steam engine. Any owner of a steam engine, who by himself, agent or employes shall violate any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction therefor, for each offense shall be fined," etc. 1. We will have disposed of the most important branch of this case by considering a claim of appellants that there can be no conviction for the reason that the statute requiring the engine to be stopped, and a competent man to be kept in front of the en- gine, has no application to a case where persons with horses are approaching the engine from the rear. The claim is based on such thoughts as that it could not have been contemplated that an engine should be stoppped when horses approaching from the rear were one hundred yards distant, because it could not be a,«sumed that they would attempt to pass; also, that where teams were traveling in the same direction, and ahead of the engine, because it would not be assumed that the engine would overtake and pass the team; but it is said to apply to cases in which persons with teams are traveling in the opposite direction, so as to meet the engine, for then the purpose of having the man in front, and State v. Kowolskl 399 of stopping tlie engine, is manifest. It is said that tlie man in front could not be of use to a team approaching from the rear, and many plausible thoughts are suggested to support appellants' contention. It will be well to first look to the evil that the statute was designed to correct. The steam engine, on the public high- way, when the act in question was passed, was of recent date. Its unusual appearance, and the noise incident to its locomotion, made its movements on the highway dangerous to persons travel- ing with teams, and the legislative purpose was to prevent acci- dents likely to occur without such legislation. While it might be said that persons traveling in the opposite direction would more necessarily come in contract with such an engine than those going in the same direction, either in front or rear, it is not to be correctly said that the latter is not liable- for such con- tact; for it is a matter of common observance that teams going on the highway, in the same direction, pass and repass as the purpose or pleasure of the persons in charge may require. We have no reason for assuming that a different custom, either from choice or necessity, obtains as to teams and the engine. The facts that control the speed of teams on the highway are so varied that uniformity in that respect Is not contemplated, and nothing the law seems designed to place restrictions thereon. We are not prepared to say that the legislature had in view security for persons or teams traveling in any particular direc- tion, but rather that it designed the law to operate favorably as to all. It may be necessary for a team in the rear of an engine to pass it, and it may also be necessary for an engine to pass a team going in the same direction. These necessities may arise from many causes, and we think the law was designed to operate in all such cases. It is true that, if an engine is to pass a team, it cannot do so if standing; but whether or not it should stop, and, by the aid of the man in advance, take steps for the safety of the team, we need not determine. The question is not before us. The law should not be too literally construed. It will not bear the construction that the man required to be in advance shall at all times be there. The requirement that he shall assist in 400 Federal and State Criminal Ebporter, Vol. L controling animals until they liave passed the engine clearly indicates his duty on the approach of teams, and we thinks it immaterial from which way the team approaches. If the engine stops because of a team to pass from the rear, he is not required to remain in front, but to use reasonable diligence to prevent the occurrence of accidents, just as he would if the team approached from the front. The law requires the engine to be stopped "whenever it is one hundred yards distant from any person or persons going on said highway with horses or other animals." This language, in itself, is as applicable to persons going one way as the other. The fact that teams going in the opposite direc- tion are more likely to pass the engine probably led to the pro- vision that the man should be in advance; but nothing in the language fixing his location when not assisting with teams should be construed to the prejudice of teams actually passing or to pass, and needing such assistance. The object of the statute was to make safe the passing of teams. It was intended that the man in advance should be on the lookout, and the more available position was thought to be in front. His position when no team or animal requires his assistance in passing is as fixed by the statute. When a team is discovered, the purpose of the statute as to the place- where he shall be is answered, and a duty follows that has no reference to the place from which he is to observe the approach of teams, and his place then is whei-ever it is necessary to render the assistance. Our conclusion is that, as to all teams that are to pass the engine, the law as to the stopping of the engine and the keeping of a man in front is alike applicable. If, with the precautions provided by the law, a' team coming from either direction cannot be discovered, so as to stop the engine, another question might be presented. Eut the duty of keeping ' the man on the lookout is imperative, and its disregard is a vio- lation of the law. 2. The defendant Kowolski was a witness, and after stating that he turned aside with the engine to avoid a culvert in the highway, and that he was crossing the lowest place, where the water runs, when the buggy passed, he said: "I did stop, but State v. Kowolskl 401 'as soon as I stopped it was soft, and the side where it was soft hept going down. The engine was sinking or giving way. Then I started up and pulled out." He was then asked, "Could you have stopped there, in your judgment?" The court excluded the question as leading. Without a further question, the witness then said, "It settled on one side more than on the other." He was then asked, "State what effect, if any, that the settling would have on the engine." The question was excluded as leading. The latter question is far from leading, and the first is not objectionably so. But there is no prejudice, for it con- clusively appears that the engine was stopped, and then started because it was sinking. The purpose of the witness was to show tliat it could not be stopped, because, if stopped, it would sink into the mud. It appears that the engine was turned aside to this wet place to go around a culvert. The law makes a specific provision as to crossing culverts with such engines, and it seems that the defendant left the traveled track, and sought to pass the culvert through this wet place. We do not think the defend- ant could observe the requirements of the law in that way, even if such danger could, in any event, be a valid excuse. 3. The court refused to permit the defendant to show by evidence that a Mr. Shane was kept on the lookout, but in a different way from that prescribed by law. In this the court was right. The law fixes the conditions on which these engines may be propelled on the highway. Even though another way may be, just as good, still it is not a conformity with the law, and will not invoke its protection. 4. The court said to the jury that a person operating such an engine on the highway must stop it for the passage of teams passing either way, unless to stop would be dangerous to life or limb. Appellants' criticism of the instruction is that it should have stated that, if the circumstances were such as to lead an ordinarily careful and prudent man to believe it would be danger- ous to life or limb, it should excuse the failure to stop. It will bo noticed that the instruction does not hold to a rule tliat, to excuse a failure to stop, the circumstances must be such that to TiCD. CiiiM. Hep., Vot,. I. — 51 402 Fbdekal ajsd State Cbiminal Keporter, Vol. I. stop would actually result in a loss of life or limb, but that there must be danger of sxich result. We think this means only that the situation must be such that such a result would reason- ably be apprehended. It cannot well be said but that one may be in danger of being injured, without actual injury. "We think the criticism is without merit, and we may say it is doubt- ful if the legal effect of the language suggested by appellants would be different from that given. 5. It will be seen that the information charged the offense as having been committed by a failure to have a man in front of the engine, and also in failing to stop. Because of this, it is said that the information is bad for duplicity, — that it charges two offenses. The information is la'id under section 1 of the act above quoted. Section 4 provides: "Any owner of a steam engine who by himself, agent or employe shall violate any of the provisions of this act shall be deemed guilty of a misde- meanor," etc. Section 2 provides how bridges and culverts shall" be crossed. Section 3 provides that the whistle shall not be blown on the highway. We understand the word "pro- visions," as used in the fourth section, to refer to the different sections, — the first providing how the engine shall be operated along the highway, the second how bridges and highways may be crossed, and the third that the whistle shall not be blown. Now, the provision as to how the engine must be operated on the highway may be violated in either or both of the ways specified; but, if the failure to post the man and stop the engine are simultaneous, they relate to the one act of operating the engine, and, although either neglect would make the offense complete, they are only different ways of committing the same offense. The case of State v. Myers, 10 Iowa, 448, fully sustains this view. Of the information in this case it may be said, as of the indictment in that case, that it "described only one offense in fact, the guilt of which might be incurred in either method specified." Some other questions have been referred to in argu- ment, but our considerations are conclusive of all, and the judg- ment is affirmed. State v. Addison. ' ' 405 Supreme Court of Iowa. Filed December 12, 1895. STATE V. ADDISOK Appeal — Record. Where, upon an appeal from the district to the supreme court, the record does not contain the evidence or instructions of the dis- trict court, and no error is discovered, the judgment will be af- firmed. Milton Eemley, Atty. Gen., for tlie State. KIISTNE, J. — This cause is submitted upon a transcript con- taining copies of the information filed with the justice of the peace of the verdict in the district court, of the judgment entry, of the appeal bond and notice of appeal, from which it appears that the defendants were by the justice of the peace found guilty of knowingly hauling in a vehicle, upon the public highway, dead hogs, which had died with the swine plague, or hog cholera. A fine was imposed therefor, and the defendants appealed to the district court, where, upon a trial to a jury, they were again convicted, and sentenced to pay a fine. They appeal to this court. The record does not contain the evidence or instructions of the district court. "We have examined so much of the record as is before us, and discover no error. Affirmed. Supreme Court of Iowa, Filed December 12, 1895. STATE V. EIFEET. 1. Indictment — Banks and banking. Where the act complained of is stated in the indictment with such a degree of certainty, in ordinary and concise language, and in such a manner, as to enable a person of common understanding to knovy what is intended to be charged, it is competent. 2. Same. An indictment, which charges that defendant, being engaged in the banking and deposit business, and insolvent, knowingly accepts ed from one M. a deposit, sufficiently states who was the owner of the money deposited and who was defrauded. 8. Witness— Cross e.'camtnation. The cross-examination must be confined to the matters about which the direct testimony was given. 40J: Federal and State Criminal Eepoetek, Vol. I. 4. Same. Where the defendant undertakes to explain Ms connection or ■want of connection, with the deposit, and to show that it was received without his Icnowledge and ag-ainst his will, any line of cross-examination which tends to contradict his testimony in chief, or lA'hich more fully discloses his connection with the deposit, is proper. 5. Same— "W.MYEE. Though the cross-examination is improper, the defendant waives any error connected therewith, hy testifying, in the further pro- gress of the trial, to the same facts without objection. 6. BaKKS and banking — PntNCIPAL AND AOKNT. A person whose agent, without his knowledge or authority, and in discharge of his express instructions, receives and accepts for his principal money as a deposit, will not by such act be rendered liable criminally for knowingly receiving and accepting the money, but the principal may, after coming into possession of all of the facts, so ratify the act theretofore done, as to make it binding upon himself and the basis of a criminal liability. 7. Same. When the principal, in siich case, after full knowledge of all the facts, fails to repudiate the acts of his agent and takes no steps looking to a return of the deposit to the depositor, he then know- ingly receives and accepts the deposit. Appeal from a judgment convicting defendant of fraudulent banking. Gibson & Dawson, for appellant. Milton Kemley, Atty. G-en., and Jesse A. Miller, for the State. KIlSTlSrE, J. — The indictment charges the defendant -with the crime of fraudulent banking, committed as follows: "The said Henry Eifert, on the 15 th day of August, in the year of our Lord one thousand eight hundred and ninety-three, in the county afore- said, being then and there engaged in the banking and deposit business, under the name and style of Bank of Tripoli, and then and there being insolvent, and well knowing himself to be in- solvent, did knowingly accept and receive from C. H. Mohling a deposit in his banking and deposit business, the siun of one hundred dollars, consisting of gold and silver money, national bank bills, United States treasury notes and currency, and other notes, bills, and drafts circulating as money and currency, the par- ticular description to the grand jury unknown, to the amount and of the value of one hundred dollars, contrary to the form of the statute in such cases made and provided." The sufRcicncy of this indictment was questioned by a demurrer, which was over- TOlecl, and an. exception taken. It is urged that it is defective, State v. Eifert. 405 in tliat h does not state -who the money alleged to have been de- posited belonged to, or who was the owner of it, or entitled to its possession; that it fails to aver who, if any one, was defrauded. Section 1 of the act against fraudulent banking prohibits any bank, banking house, or party engaged in banking or deposit business from accepting or receiving on deposit any money when such banking house or deposit office, firm, or party is insolvent. Acts 18th Gen. Assem. c. 153, § 1. Section 2 is as follows: "If any such bank, banking house, exchange broker or deposit office, finn, company, corporation, or party, shall receive or accept on deposit any such deposits as aforesaid, when insolvent, any officer, director, cashier, manager, member, party or managing party thereof, knowing of such insolvency, who shall knowingly receive or accept, be accessory, or permit or connive at the receiving or accepting on deposit therein, or thereby, any such deposits as aforesaid, shall be guilty of a felony, and upon conviction, shall be punished by imprisonment in the state prison for a term not to exceed ten years, or by imprisonment in the county jail not to exceed one year or both fine and imprisonment, the fine not to exceed ten thousand dollars." Acts 18th Gen. Assem. c. 153, § 2. In support of the contention that the indictment is defec- tive because it fails to state the name of the injured party, counsel rely upon cases decided by this court wherein it was held chat the indictment, in certain cases, must set out the name of the person injured, or attempted to be injured. "We do not think it is necessary to discuss these cases. Let it be conceded that the indictment in this case must show who the injured party is, and we think it must be held to confoi-ra to the law in that respect. It occurs to us that one reading this indictment would at once imderstand that the charge was that the money belonged to the person making the deposit; that he was the owner. If the act complained of is stated with such a degree of certainty, in ordinary and concise language, and in such a manner, as to enable a person of common understanding to know what is intended to be charged, it is sufficient. Code, § 4305. Can there be any doubt that such a person, on reading this 406 Federal and State CpjMiiirAL Reporter, Vol. I. , indictment, would understand that it charged that the defendant, knowing that he was insolvent, did knowingly receive a deposit of money from Mohling, and that it was his money which waa thus deposited? "We think not. Now, one may own money, and may send it by some one to be deposited in a bank, but we should not speak of the mere carrier of the money as a depositor, but the one for whom it was in fact taken to the bank would be the depositor. The owners of money deposited in a bank are the depositors of that bank; that is, they are the people who made the deposits. We think that, read in the light of the require- ments of our statute, the indictment, to the common understand- ing, as fairly charges that Mohling was the injured party as if it had in express terms stated that he owned the money which he deposited. 2. It is strenuously urged that the court erred in permitting certain questions to be asked the defendant on cross-examination. It appeared from the direct examination that the defendant under- took to state his connection, or rather want of connection, with the making of the alleged deposit. He testified that he left town that morning early, and went to "Waverly; that, prior to going, he had a conversation with his son about receiving deposits on that day; that he told him he was going to "Waverly to look the ground over; and that, if things did not look favorable, he would send the son a telephone message, through a party who was with him, not to receive any more deposits, and to stop doing business; that he sent the message to his son to stop doing business, and not to receive any more deposits. On cross-examination, over the defendant's objection, he was required to testify when he re- turned from Waverly to Tripoli, and how long he remained ia Tripoli, and as to whether he found any deposit had been made after two o'clock that day. The law, undoubtedly, is that the cross-examination must be confined to the matters about whick the direct testimony is given. It is contended that on cross- examination the state was limited to what the defendant did at Waverly. We do not think so. The defendant was put upon the stand to show that Mohling's deposit was received without State v. Eifert. 407 his knowled'ge and against his instructions; and, to show such facts, he testified as we have stated. The defendant having undertaken to explain his connection, or want of connection, with this deposit, and to show that it was received without his knowledge and against his will, any line of cross-examination which tended to contradict his testimony in chief, or which more fully disclosed his connection with this deposit, was proper. There was no error in the rulings in this respect. Even if the cross-examiation was improper, the defendant waived any error connected therewith, because, in the further progress of the trial, he testi£ed to the same facts without objection. State v. "Wick- liff (Iowa) 64 N. "W. 283; Strong v. Eailway Co. (Iowa) 62 N. W. 802; Bailey v. Bailey (Iowa) 63 N. W. 341. 3. The eighth paragraph of the court's charge reads: "In deterniinitig whether the defendant received or accepted the alleged deposit of C. H. IVCohling, you are instructed that it is not necessary that the evidence should show, or that you should find, that the defendant in person received such deposit, nor that he was personally present when it was received from said Mohling, if received at all; it is enough if it was received by the cashier or agent of defendant under his authority. But you are further instructed that even though the defendant instructed Theodore Eifert to close the bank, and refuse to receive or accept further deposits, and that, after such instructions to so refuse deposits, the said Theodore Eifert did accept and receive from said Mohl- ing the deposit in question, if so you find from the evidence, still, if the defendant, with knowledge thereof, accepted and retained as a deposit the amount so received from said Mohling by said Theodore Eifert, and placed among and treated it as a part of the funds or assets of the bank, having full kuowledge from what source and under what circumstances and by whom it was re- ceived, he will be deemed to have knowingly accepted such sum as a deposit. If, however, such deposit was received without his authority, and was not accepted by him, if at all, with full knowl- edge of the manner and circumstances of its being deposited, if at all, then he will not be deemed to have knowingly received or 408 Federal and State Criminal Eepokter, Vol, L accepted such deposit." Exception is taken to so mucli of this instruction as relates to the action of the defendant in knowingly accepting and retaining the deposit, after full knowledge from whom and under what circiimstances it had been made. The argument of defendant is that when the deposit was received and accepted by defendant's son, and entered upon the books of the bank and upon the depositor's book, the whole transaction was concluded. Now, the facts appear to be that the son had for a long time been in the bank, assisting his father; that the father was in the city of Waverly when the son, who had charge of the bank, received this deposit; that it was received on the afternoon of August 15, 1893, and several hours after the son had received a telephone message from his father to close the bank and to take no more deposits; that the father returned to Tripoli the same evening, and then learned that this deposit had been received, contrary to order; that said money was put into the assets of the bank; and that defendant never paid or tendered it back to Mohl- ing. ISTow, when did defendant "knowingly accept and receive" this money as charged in the indictment? We think he must bo said to have done so when he returned home, and first knew of the fact of its receipt. If he had given no direction to stop busi- ness and refuse deposits, then it might be said that he should be concluded by the transaction when the money was in fact received by his son, who had authority to act for him. But, having ex- pressly directed the son to cease business and refuse deposits, he had no reason to suspect or believe that his orders would not be obeyed. It cannot therefore be said that he knowingly received and accepted the deposit when it was handed to his son, and by him accepted, without the father's knowledge, and against his express directions. "When, however, he arrived home that even- ing, he became acquainted with all the facts; he then knew that this deposit had been accepted by the son after he had directed him to take no more deposits; he knew who made the deposit; he knew he was then insolvent, and that he had been before the Bon had received the deposit; and, knowing all the facts, he did not repudiate the transaction, but retained and accepted the State v. Eifekt. 40& money, at tlie same time knowing that his bank would never open again. It seems to us that when defendant, after full knowledge of all the facts, on the evening after his return, failed to repudiate the act of his son, and took no steps looking to a return of the deposit of Mohling, he then knowingly received and accepted the deposit. It must be borne in mind that this is not a' civil action for damages for the recovery of the money deposited. It may be that in such a case recovery could be had of the defendant, notwithstanding the deposit was received by his agent contrary to his directions. But the gist of the offense charged in the prosecution is in knowingly receiving and accept- ing a deposit, knowing that he was then insolvent. Surely one whose agent, without his knowledge or authority, and in dis- obedience of his express instructions, receives and accepts for hia principal money as a deposit, will not by such act be rendered liable criminally for knowingly receiving and accepting the money, but it cannot be doubted that, after coming into posses- sion of all of the facts, the principal may so ratify the act thereto- fore done as to make it binding upon himself, and the basis of a criminal liability. If the defendant had, on being acquainted with what had been done, promptly disavowed the act of his son, and returned the deposit to Mohling, he would not have been guilt}'', as it could not then have been said that he had knowingly received and accepted the deposit. It seems to vis the instruction 13 correct, and quite as favorable to the defendant as he had a right to expect. 4. Finally, it is said that the verdict is contrary to the evi- dence. This conclusion is reached by counsel on the theory that the acts considered in the third division of this opinion, and held by us to justify the instruction complained of, do not, if estab- lished, show a violation of the statute. We think the evidence fully sustains the verdict. Indeed, it is difficult to understand, under our view of the law, how the jury could have reached a different conclusion. Discovering no error in the entire record, the judgment below is affirmed. Fed. CniM. Rkp., Vol. I.— 53 410 Fedekal and State Ceiminal Eepouter, Vol. L Supreme Jiidlcisil Court of Massacliusetts. Filed January 3, 1896. COMMONWEALTH v. EMERSON". Lottery — What constitutes. Tlie offer of a choice out of a num'ber of photographs to each purchaser of tobacco where the buyer is free to make his own choice before he takes the tobacco, is not a violation of chapter 277 of 1884. Appeal from a judgment convicting defendant of selling prop- erty on a representation that something other than what was specifically stated to be the subject of sale was to be delivered. John D. McLaughlin, Asst. Dist. Atty., for the common- wealth. J. Otis Wardwell and Forrest 0. Manchester, for defendant. HOLMES, J. — This is a complaint for a penalty under St. 1884, c. 277. The evidence was that the defendant, a retail When a witness has testified directly to a fact from the experi- ence of his own senses, the extent to which he should be allowed to testify to circumstances corroborative of the truth of what he has thus sworn must rest in the discretion of the judge who tries the ease. 7. BviDTCNCB — Dying declatiations. The existence of any expectation of recovery, however slig'ht, malces dying declarations inadmissible. 8. Samr. If such declarations are admitted in evidence, the court may con- sider whether the evidence is sufficient to warrant the findings on which the court proceeds, but cannot revise the findings of fact. 9. Samk. If the evidence is excluded it is an end of the matter, unless some question of law is reserved. [Appeal from a judgment convicting defendant of abortion. Jolin D. McLaughlin, Dist. Atty., for the commonweal th. Clarence "W. Eowley, for defendant. HOLMES, J. — This is an indictment for doing certain acts upon the body of one Petrene Matson with intent to procure an abortion, in consequence of which the said Petrene died. The case is here on exceptions which we will take up in the order in which they are discussed by the defendant. 1. The indictment contained two counts, the second count charging a similar offense upon another woman. The defendant moved for separate trials on the two counts, upon which motion the court suspended action, and, when the evidence of the govern- ment was in, granted it. The exception on this point is not Commonwealth v. Bishop. 413 pressed, it being admitted to be a matter witbin tbe discretion of tbe judge. Com. v. McCluskey, 123 Mass. 401. 2. Tbe court instructed tbe jury tbat one Carl F. Monk, tbe "witness wbo fumisbed tbe principal evidence for tbe government, was an accomplice wbo bad turned state's evidence to avoid tbe consequences of bis part in tbe affair, and tbat tbey were to take tbe circumstance into consideration in weigbing bis testimony. At tbe close of tbe cbarge tbe defendant asked for fuller instruc- tions as to tbe uncorroborated testimony of an accomplice, wbicb tbe court refused. It is settled tbat tbe court is not bound to advise tbe jury tbat generally it is unsafe to convict on sucb testimony, altbougb courts sometimes do so. Advice upon tbe matter is, in substance, instructing tbe jury tbat tbere is a pre- sumption of fact concerning tbe veracity of a certain class of witnesses. Altbougb it is permissible, and in many cases may be desirable, to advise in tbe form above mentioned, tbe general rule, under our practice, is to leave sucb presumptions to tbe jury, and it is in tbe discretion of tbe presiding judge to follow tbe general rule ratber tban tbe exception, if it seems best to bim to do so. Com. v. Wilson, 152 Mass. 12, 14; 25 K E. 16; Com, V. Clune, 162 Mass. 206, 214; 38 K E. 435. See Com. V. Briant, 142 Mass. 463, 464; 8 IST. E. 338; Grabam v. Badger, il64 Mass. 42, 47; 41 K E. 61. In tbis case tbe evidence was not wboUy uncorroborated. Tbe defendant admitted tbat be publisbed advertisements wbicb, to say tbe least, migbt be understood to bold out tbat be was ready to do acts of tbe kind cbarged, and it appeared by anotber witness tbat tbe defendant wanted to see bim, in order tbat tbe alleged accomplice sbould employ tbe defendant's lawyer, and tbat tbe defendant sbowed some anxiety to avoid tbe accomplice after the latter bad been arrested. Tbe defendant's conversations witb the witness, taken as a whole, migbt have been interpreted, also, to admit, by implication, the witness' suggestion to the defendant tbat he "thought he did a job for bim," and to warrant tbe infer- ence that the job referred to was tbe alleged crime. 414 Federal and State Criminal Reporter, Vol. 1. c - 3. Monk testified that tlie defendant Bisliop gave Mm a sKp of paper to take to a certain address, along witli tlie said Petrene Matson, and tliat lie took it there, and delivered it to the defendant Cole. The counsel for Cole declined to ask his client whether she admitted the receipt of the alleged paper. The court there- upon admitted secondary evidence of its contents, which appeared to be directions in the case of Matson after the operation. If Cole had admitted that she had accepted such a paper without repudiating what it implied, the fact would have been very strong evidence against her. It is plain, therefore, that the judge was warranted in assuming that Cole refused to admit the receipt of the paper, or to produce it, irrespective of any question of the sufficiency of the notice to produce it, and if he was of that opinion he was warranted in letting in the evidence as against Bishop. 4. Monk also testified that he went to the Globe office and bought a Sunday Globe, looked at the advertisements, and in con- eequence of seeing an advertisement went to the defendant's office, where he had testified before that he asked the defendant to procure the abortion. This matter is one of those usual pre- liminaries which hardly could have been objected to if it had stood alone. If it was connected with the defendant's admission that he advertised in the Globe, and his statement of what ha advertised, it fairly warranted the inference that the witness went to the defendant in pursuance of an offer of the latter to the public. 6. One Cole, an alleged accomplice of the defendant, other than the above-mentioned witness, was tried at the same time. On every occasion when evidence was admitted against 'Cole which was not admissible against this defendant, the court instructed the jury that it was not to be considered against this defendant. There is nothing to show that this course was not within the dis- cretion of the court, or that its discretion was not exercised wisely. Com. v. Bingham, 158 Mass. 169 ; 33 K E. 341. There ia no need, therefore, to consider particular objections to evi- dence admitted only against Cole, who, it may be mentioned, was acquitted by direction of the judge. Commonwealth v. Bishop. 415 6. The defendant Bishop testified in his own behalf, and denied that he ever saw Petrene Matson. He stated that he never saw the witness Monk but once, when the latter applied to him for treatment for a certain disease. The court excluded the evidence of what Monk applied for. When a witness has testified directly to a fact from the experience of his own senses, the extent to which he shall be allowed to testify to circumstances corrobora- tive of the truth of what he thus has sworn must rest in the dis- cretion of the judge who tries the case. The bearing of the fact excluded, if it had any, was most remote. Delano v. Charities, 138 Mass. 63, 64; Neal v. City of Boston, 160 Mass. 618, 522; 36 ISr. E. 308. 7. The dying declarations of Petrene Matson were offered by the defendant, under St. 1889, c. 100. The court found that, at the time of making them, she believed her end was near, and that her chance of recovery was slight, but that she then had some hope of recovery. ■ Upon this finding of fact the court excluded the evidence. "We are asked to reconsider both the finding and the ruling. If the declarations had been admitted, we might consider, as in other cases, whether the evidence was sufficient to warrant the findings on which the court proceeded, but we can- not revise the findings of fact. Com. v. Coe, 115 Mass. 481, 505; Costelo v. Crowell, 139 Mass. 588, 590; 2 K E. 698. This being so, when the declarations have been rejected, even if the evidence of an unqualified expectation of death were stronger than it was in this case, we could not say that the judge was not warranted in disbelieving it. It is not argued that the defend- ant had a right to have the jury revise the finding of the judge. There is no doubt that the proper course is for the judge to pass upon the fact in the first instance. If the evidence is let in, our practice allows the party objecting to the evidence, who, gen- erally, is the accused, to reargue to the jury the preliminary question as well as the truth of the declaration. But the whole purpose of the preliminary action of the judge would be lost if, in all cases, the evidence had to be laid before the jury, so as to give them the last word. If the evidence is excluded, that is an 416 Federal and State Cbiminal Eeportek, Vol. L end of the matter, unless some question of law is reserved. See Com. V. Preece, 140 Mass. 276, 277; 5 K E. 494; Com. v. Kob- inson, 146 Mass. 571, 580, 581; 16 K E. 452; Com. v. Brewer (Essex; Nov. 27, 1895) 42 K E. 92. The only question for us is whether the judge was right in excluding the evidence, assum- ing the facts to be as found by him. It is settled that the ex- istence of any expectation of recovery, however slight, makes dying declarations inadmissible. The finding that Matson "then had some hope of recovery" means that she thought she had some slight chance of life. Therefore, the ruling was right. Com. v. Koberts, 108 Mass. 296. The foregoing are the only exceptions argued. No evidence was offered of any justification, but the defense consisted in. a denial of the alleged acts. Exceptions overruled. Supreme Judicial Court of Massacliusetts. Filed January 3, 1896. COMMONWEALTH v. MESKILL. CRrMINAl LAW— COMPI^ATNT. The district court, as well as the Justices, has the power to re- ceive complaints for maintaining nuisances. Appeal from an order overruling a motion to quash: the com- plaint on the ground that it was not made before the justices of the district court, nor addressed to such justices, or any of them. George A. Sanderson, Dist. Atty., for the commonwealth. Thomas Hillis, for defendant. HOLMES, J. — The only point argued for the defendant is that the complaint should have been addressed to the justices of the district court, instead of to the district court. It would Commonwealth v. Meskill. 417 seem that a motion to quash on this ground, made for the first time in the superior court, came too late. Pub. St c. 214, § 25; Com. V. Walton, 11 Allen, 238; Com. v. Harvey, 111 Mass. 420. But, if the point may be taken, the answer is that the district court, as well as the justices of it, had the power to receive com- plaints. St. 1893, c. 396, §§ 42, 43; St 1874, c. 315. Exceptions overruled. Supreme Judicial Court of Sassacliusetts. Filed January 3, 1896. COMMONWEALTH v. MESKELL. Excise — Sale. A person may be convicted of unlawfully keeping intoxicating liquor for sale without proof that he actually sold any liquor, or ofEered or ex- posed it for sale. Appeal from a Judgment convicting defendant of unlawfully keeping intoxicating liquors for sale. Fred N. Wier, Dist Atty., for the commonwealth. Thomas Hillis, for defendant ALLEN, J. — One may be convicted of unlawfully keeping intoxicating liquor for sale without proof that he actually sold any liquor, or offered or exposed it for sale. Com. v. Tay, 146 Mass. 146; 15 N. E. 503; Com. v. Welch, 140 Mass. 3Y2; 5 N. E. 166; Com. V. Atkins, 136 Mass. 160; Com. v. McCue, 121 Mass. 358. Exceptions overruled. Fbd. Ckim. Kbp., Vol. I.— 53 418 Federal and State Criminal Reporter, Vol. L Supreme Judicial Court of Massachusetts. riled January 3, 1898. COMMONWEALTH v. FLYI^N et al. 1. Evidbnce^Robbehy. Upon an indictment for robbery, it is always competent to show the efEect of the assault upon the person assaulted, 2. Same— PHTi5TCiAN. A physician, who attended the person robbed for two days after the robbery, may testify that she was hysterical when he saw her. 3. Same. a witness, if an expert, may give a description of the appearance of the person robbed and of her apparent physical condition before and after the robbery. | 4. Witness — Cross bxaminatiow. A witness, called to prove an alibi, who testified that he thought of defendant when hi.s attention was directed to the robbery, may be asked on cross-examination, whetherhe then associated defend- ant with the robbery. 6, Criminal law — Instruction. A remark by the judge in his charge that the person robbed "identified them here at the trial without hesitation," was held not to be an expression of opinion in regard to the credibility of the witness. Appeal from a Judgment convicting defendants of robbery. ' John D. McLaughlin, Dist. Atty., for the commonwealth. John "W. Corcoran and McDonald & Euggles, for defendants. KNOWLTOW, J. — The evidence objected to was rightly admitted. Upon an indictment for a robbery, it is always com- petent to show the effect of the assault upon the person assaulted. The physician who attended Florence Meakin for two days after the robbery might well testify that she was hysterical when he Baw her. The testimony of the witness Schneider was not admitted as the opinion of an expert, but as a description of the appearance of the person robbed, and of her apparent physical condition be- Commonwealth v. Flynn. 419 fore the robbery and after it. Com. v. Sturtivant, 117 Mass. 122, and cases cited. The witness Kelley, having testified to facts which tended to prove an alibi for the defendant Flynn, and having said that his attention was called to the robbery on the next day after it occnrred, and that he then thought of Flynn, the commonwealth, in cross-examination, for the purpose of fixing the time and test- ing his accuracy, was rightly permitted to ask him the question, "Did you then associate Flynn with the robbery?" The witness Brown had testified that he was in Worcester with the defendant Dorney at the time of the robbery, and the defend- ants were not injured by the question put to him in cross-examina- tion, "Miss Mealdn did not identify you as the man who assaulted her?" and his answer: "No; I do not know as she saw me. I saw her. She could not have seen me if she looked." The only other exception is to a remark of the judge in the course of his charge, referring to the testimony of Miss Meakin, as follows: "She identified them here at the trial without hesi- tation." It is contended that the meaning of the word "identify" is to prove identical, or to prove to be the same, and that, there- fore, the remark was an expression of opinion in regard to the credibility of the witness, and not a mere statement of a part of the evidence. Pub. St. c. 153,§ 5; Com. v. Foran, 110 Mass. 180. It is not disputed that she testified without hesitation to her identification of the defendants as her assailants, and we think it clear that the judge used the word "identified," in reference to her testimony, in a colloquial sense, as meaning "asserted their identity." "We do not think the jury could have been misled by the remark. Moreover, when his attention was directed to it, he said to the jury: "I was then depending upon my recollection. It is for you to say wliat the evidence is." It was plainly his pur- pose to have the jury understand that they were not to consider his opinion of the credibility of the witness, if he had seemed to express it. Exceptions oven-uled. 420 Pjsdeeal and State Criminal Eepobteb, Vol. L Supreme Judicial Court of Massacliusetts. January 3, 1896. COMMONWEALTH v. CEOWE. 1. EvrDBNCE— Arson. Upon the trial of an indictment for arson, evidence of a threat of defendant to burn the building made fourteen months before the fire, was held, under the circumstances of this case, to have been properly admitted. 2. Same. Upon the trial for arson, conversation and conduct of defendant, shortly after the fire, was admissible, in the discretion of the court, in connection with other evidence in the case, to show guilty knowl- edge on the part of defendant. There was evidence to show that the dwelling house alleged to have been burned in the name of Margaret Mallon, a married sister of the defendant, and that the premises were purchased by the combined earnings of the defendant and other members of the family, and the title put in the name of said Mallon, prior to her marriage; that before the marriage the family occupied the lower tenement together, and rented the upper tenement, and after the marriage said Mallon and her family occupied the upper tenement, and the defendant, with his mother and brothers, remained in the lower tenement. In January, 1894, a contro- versy arose as to the relative interests of the several members of the family in the property. In settlement of the troubles the property was sold to one Downes, and the defendant's mother re- ceived four hundred and fifty dollars, as a result of negotiations which continued through the summer, ending in August of 1894, at which time the defendant, with his mother and brothers, moved out of the house, into a tenement a few feet away from said house, leaving Mallon in occupancy of the upper tenement; and the lower tenement was leased, which tenements were in occupancy at the time of the alleged burning. There was evi- Commonwealth v. Crowe. 421 dence of quarrels in the family pending the negotiations through the summer, and a complaint made to the court. _ After the set- tlement was made, and the defendant moved out of the house, there was no communication between the defendant and his sister, and there was no evidence of any conflict between them. The government offered evidence to show that the defendant, fourteen months before the alleged burning, said 'that, unless his mother got something out of the property, he would bum the building,' to the admission of which the defendant objected. The court admitted the evidence, provided the government showed, as claimed, that the ill feeling which existed at the time of the threat between the defendant and his sister continued down to the time of the fire, and the government subsequently offered evidence tending to show such fact; and the defendant excepted. The government offered a conversation overheard by a police officer between the defendant and one Donahue, a brother-in- law of the defendant, which took place the next morning near the premises, in substance as follows: The defendant asked, 'Is this the place where the fire was?' Donahue answered, 'Don't you know it is?' which was followed by laughter on the part of the defendant, — to which the defendant objected. The court admitted it in evidence, and the defendant excepted. The police officer, directly after the above conversation, arrested said Dona- hue for drunkenness; and the government offered a certain state- ment of the defendant to the officer at the time of the arrest, all of which was denied by the defendant, to wit: 'You want to arrest him to find out what he knows about who set the fire.' The court admitted the evidence, and the defendant excepted. Ered N". Wier, Dist. Atty., for the commonwealth. • Marcellus Coggan, for defendant. LATHKOP, J.— 1. The evidence of the threat of the de- fendant to bum the building made fourteen months before the act for which he was indicted, was properly admitted. While 422 Federal and State Cbiminal Eeportee, Vol. I. the threat was "that unless his mother got something out of the property he would bum the building," and while it appeared that his mother had got something out of the property, yet, as the evi- dence showed that there was ill feeling between the defendant and his sister at the time of the threat, and that this ill feeling continued to exist down to the time of the burning, — his sister continuing to occupy a part of the building during this time, — the evidence was competent. Com. v. Goodwin, 14 Gray, 55; Com. v. Chase, 147 Mass 597; 18 N. E. 565; Com. v. Quinn, 150 Mass. 401; 23 K E, 54; Com. v. Holmes, 157 Mass. 233, 240; 32 K E. 6. 2. The morning after the fire, the defendant, while near the premises, said to his brother-in-law, one Donahue, "Is this the place where the fire was?" Donahue answered, "Don't you know it is?" This was followed by laughter on the part of the defendant. All this was overheard by a police officer, who directly afterwards arrested Donahue for drunkenness. The defendant then said, "You want to arrest him to find out what he knows about who set the fire." The defendant denied that he made this last statement, and all of the evidence was excepted to. iWe are of opinion that the evidence had some tendency to show guilty knowledge on the part of the defendant, and was admis- sible, in the discretion of the court, in connection with the other evidence in the case. Com. v. McCabe, 163 Mass. 98; 39 K E. 777; Com. V. Welch, 163 Mass. 372; 40 K E. 103. . • Exceptions overruled. Commonwealth v. Codt. 423 Supreme Judicial Court of Massachusetts. Filed January 3, 1896. COMMONWEALTH v. CODY. 1. Criminal law— Jury. The court, in its discretion, may discharge a jury where it is un- able to agree, aud. the persoa accused may be tried again |jj anuther jury. 3. Same— Indictment— Pendency. The pendency of an indictment is no ground for a plea in abate- ment to another indictment in the same court for the same cause, nor is it ground for a plea in bar, nor for a motion in arrest of judgment. 5. Same. In an indictment under section 22, chapter 202 of Public Stat- utes, it is sufficient to charge that the defendant was armed with a pistol, without other allegations to show in what way it was dan- gerous. 4. Same. Where the indictment does not charge an assault with the pistol, it is unnecessary to allege how the weapon was used or intended to be used. 6. Same — Former conviction. Where a count in an indictment charges defendant with being an habitual criminal, and evidence relating thereto is introduced by the government but subsequently withdrawn from the considera- tion of the jury, the fact that the government was allowed to go to the jury only on a prior count cannot be said, in contemplation of law, to have injured the defendant, where the jury was carefully instructed not to regard any of the evidence relating to such count. 6. Same — Phoving exceptions — Pkeskncb of accused. There is no reason why the petitioner should be present at a hear- ing before a commissioner to prove the truth of his exceptions, unless he desires to be present, or to be heard in person or to tes- tify in his own behalf. 7. Same. The court will not consider statements in the bill of exceptions which petitioner seeks to prove, where the bill alleged differs ma- terially from that proven and is manifestly unfair. 424 Federal and State Criminal Eeporter, Vol. I. Appeal from a judgment convicting defendant of robberj', be- ing armed with a dangerous weapon. M. J. Sugbrue, Dist. Atty., for the commonwealtli. F. r. Sullivan, for defendant LATHEOP, J. — TMs is a petition to prove exceptions. The petitioner was convicted on tbe first count of an indictment con- taining three counts, the second and third counts having been abandoned by the government at the close of the evidence, and before the case was submitted to the jury. The pe'titioner duly filed a bill of exceptioiis, which the chief justice of the superior court, who presided at the trial, disallowed, at the same time allow- ing a substitute bill of exceptions, if the petitioner chose to adopt it by a certain time. This substitute bill was not adopted; and the present petition was filed in this court. It was referred to a commissioner, who has made his report; and his findings are, in substance, against the petitioner. The commissioner has found that the first seven paragraphs of the petitioner's bill are true, and that they do not differ materially from those in the bill which the judge was willing to allow, except that the latter bill did not allude to the proceedings upon a new trial, and that these are correctly stated in the petitioner's bill, so far as the same are now relied upon. By the direction of the court, the questions arising on the petition to prove the exceptions, and on the exceptions, if proved, were argued together. At the request of the peti- tioner's counsel, we have examined the stenographer's report of the evidence, and are satisfied with the con-ectness of the com- missioner's findings. 1. The first exception relates to a plea in bar to which the government filed a demurrer, which was sustained by the court. The plea set forth that on a previous indictment for the same offense, the petitioner was tried, and the jury, not being able to agree, were discharged, against his will and consent; that a sec- ond indictment was subsequently found for the same offense, and after this the indictment was found for which he is now on trial, Commonwealth v. Codt. 425 tlie last two mdictmenta being in substance the same as tbe first, except that they contain the words "maim and." It is further alleged that the petitioner had been once placed in jeopardy, and should not have been tried again. We are of opinion that the ruling of the court below was right. It is well settled in this commonwealth that the court, in its discretion, may discharge a jury where it is unable to agree, and that the person accused may be tried again by another jury. Com. v. Bowden, 9 Mass. 494; Com. v. Purchase, 2 Pick. 521; Com. v. Eoby, 12 Pick. 496, 503. See, also, Com. v. Sholes, 13 Allen, 554; Com. v. McCormick, 130 Mass. 61; U. S. v. Perez, 9 Wheat. 5Y9; Winsor V. Queen, L. E. 1 Q. B. 289, 390. The defendant, however, contends that, if he could be tried again on the first indictment, he could be tried upon the last in- dictment. But the pendency of an indictment is no ground for a plea in abatement to another indictment in the same court for the same cause (Com. v. Drew, 3 Cush. 279) ; nor is it ground for a plea in bar (Com. v. Berry, 5 Gray, 93);nor for a motion in arrest of judgment (Com. v. Murphy, 11 Cush. 472). 2. The defendant also filed a motion to quash the first count of the indictment. The principal objections urged to the form of this count are that while it is charged that the accused, at the time of committing the offense, was "armed with a dangerous weapon, to wit, a pistol, with intent," etc., it is not charged that the pistol was capped, loaded with ball, powder, or cartridges, or capable of being discharged; nor that the pistol was aimed at the person named in the indictment, or discharged, or used as a firearm or club ; nor does it appear that the pistol was a danger- ous weapon. This count in the indictment is framed under Pub. St. c. 202, § 22, which was first enacted by St. 1818, c. 124, § 1, and lias since been in force, with the exception that the pun- i.shment, which was by this statute death, was reduced by St. 1839, c. 127, to imprisonment in the state prison for life. Eev. St. c. 125, § 13; Gen. St. c. 160, § 22. Soon after the pas- sage of St. 1818, a case arose under it, and an indictment was framed to which the one in the ease at bar conforms, and under Fed. Ceim. Rep., Vol. 1—55 426 Federal and State Criminal Reporter, Vol. L which the prisoner was convicted and executed. Com. v. Martin, 17 Mass. 359. This has been a recognized form ever since. Davis, Prec. 'No. 203; Train & H. Free. 461, 462; 1 Whart. Prec. (4th Ed.) 411, 412. It has also been used in Com. v. Gallagher, 6 Mete. (Mass.) 565, and in Com. v. Mowry, 11 Allen, 20. We have no doubt that the indictment is sufScient in form. The gist of the offense is the being armed with a dangerous weapon. Com. v. Mowry, ubi supra, where it was held not to be necessary to allege either that the assault was committed with a dangerous weapon, or that the intent to kill or maim was to be carried out, in case of resistance, by means of such dangerous weapon. The indictment does not allege an assault with a pistol; and therefore it is unnecessary to allege how the weapon was used, or intended to be used. The remaining question is whether it is sufficient to charge that the defendant was armed with a dangerous weapon, to wit, a pistol, without other allegations to show in what way it was dan- gerous. We have no doubt that the indictment is sufficient in this respect. It follows a well-established precedent, and is sup- ported by authorities. U. S. v. Wood, 3 Wash. C. C. 442; Fed. Cas. No. 16,766; U. S. v. Wilson, Baldw. 78, 99;Fed Cas. ISTo, 16,730; Allen v. People, 82 111. 610. A further ground urged in support of the motion to quash is that the indictment is vague, indefinite, and uncertain, under article 12 of the declaration of rights. This is disposed of by the case of Com. v. Eobertson, 162 Mass. 90; 38 K E. 25. 3. After a verdict of guilty in the court below, the petitioner filed a motion for a new trial, on the grounds that the verdict was against the law, the evidence, and the weight of the evidence; also, on the ground that the indictment charged him with hav- ing committed two distinct offenses, and with being an habitual criminal, and because the evidence relating to the last count was introduced by the government, and then withdrawn from the con- sideration of the jury; that this action on the part of the govern- ment made part of its case the bad character of the defendant, and deprived him of his constitutional right in talcing the initia- Commonwealth v. Cody. 427 tive in the introduction of evidence to prove his character. It appears from the certificate of the chief justice that the defend- ant elected to preserve his remedy, if he had any, before the supreme judicial court, as to the questions of law contained in his motion, and that, after a full hearing on the remainder of the motion, it was overruled. The defendant excepted to the dis- allowance of the motion for a new trial. Assuming that the defendant has a right now to be heard upon the questions of law raised by the motion for a new trial, we see no ground of com- plaint on his part. His counsel has referred us to no provision of the constitution which prevents the government from proving the necessary allegations of the indictment. The third count of the indictment was under St. 1887, c. 435, known as the "Ha- bitual Criminal Act." This act was held to be constitutional in Com. v. Graves, 155 Mass. 163; 29 N. E. 579, and in Sturte- vant V. Com., 158 Mass. 598; 33 K E. 648. It is necessary to charge in the indictment the former convictions and sentences of the defendant. Com. v. "Walker, 163 Mass. 226; 39 K E. 1014. Being charged in the indictment, it is necessary for the govern- ment, if it relies upon them, to prove them. This was the course pursued in this case. The fact that the government was allowed subsequently to go to the jury only on the first count cannot be said, in contemplation of law, to have injured the defendant. The jury were carefully instructed not to regard any of the evi- dence relating to the third count. Smith v. Whitman, 6 Allen, 562; Costello v. Crowell, 133 Mass. 352, 354, 355; Anthony v. Travis, 148 Mass. 53, 60; 19 N. E. 8; Com. v. Thompson, 159 Mass. 56, 59; 33 N. E. 1111. 4. It appears from the certificate of the commissioner, to whom the petition to prove the exceptions was referred by this court, that the petitioner was not present during the hearing before him; and this is relied upon as error. It does not appear that any request was made that he should be present. By Pub. St. c. 214, § 10, it is provided: "No person indicted for a felony shall be tried unless personally present during the, trial." This statute is simply declaratory of the common law, and applies 428 Federal and State Ckbiinal Reportee, Vol. I only to the trial by jury. IvTeitlier tlie statute nor the rule of the common law has any application to proceedings which may intervene between the verdict of the jury and the sentence. In this commonwealth it has never been the practice to have a prisoner present when his exceptions are under discussion before the superior court, or when they are argued in this court; and there is no reason why he should be present at a hearing before a commissioner to prove the truth of his exceptions, unless he desires to be present, or to be heard in person, or to testify in his own behalf. See Com. v. Costello, 121 Mass. 371; Com. v. Mc- Carthy, 163 Mass. 458; 40 K E. 766. 5. As to the other statements in the bill of exceptions which the petitioner seeks to prove, it now appears that exceptions were alleged to be saved where none were taken at the trial, important qualifying statements were omitted where exceptions were taken, and the bill alleged differs so materially from that proven, and ia so manifestly unfair, that we are not called upon to consider the matter further. See Sawyer v. Iron Works, 116 Mass. 424; Morse v. Woodworth, 155 Mass. 233; 27 K E. 1010, and 29 K E. 525. Exceptions overruled. Supreme Court of Ohio. Filed November 26, 1895. BURDGE V. STATE. FonoERT-— Indictment. In an indictment for forgery of a promissory note, the omission, in setting it out according to its "purport and value" (Eev. St. § 7218), of a power of attorney to confess judgment, attached to the note is not a variance material to the merits of the case, nor prejudi- cal to the defendant, and, therefore, not a ground of acquittal. Id. § 7316. BuRDGH V. State. 429 2L Same— EviDBNCB. Where a party is indicted for the forgery of a note, evidence th^t the defendant released a judgment he had taken on the note, with- out consideration, after being charged with the forgery, is compe- tent on the question of his guilt. 8. CuiiirNAL LAW — Confessions. Where confessions of the defendant are offered in evidence on a criminal prosecution, and it is claimed that they were not vol- untary, the preliminary proof as to whether they were obtained by the influence of hope or fear may, if the evidence is conflicting, be submitted by the court to the jury, under instructions to dis- regard the evidence, if satisfied that the confessions were involun- tary. Appeal from a judgment convicting plaintiff in error of forgery. J. F. McJSTeal & Son and T. E. Powell, for plaintiff in error. Grant E. Mouser, for the state. MINSHALL, 0. J.— The plaintiff in error, Marshall S. Burdge, was, on the charge of forgery, indicted hy the grand jury of Marion county, and tried, convicted and sentenced to im- prisonment in the penitentiary. He claims that various errors to his prejudice were committed in the trial of the case by the court below, and asks that the conviction and sentence be re- versed, and a new trial awarded him. The principal assignment of error relied on is that there Is a variailce between the indictment and the evidence offered in sup- port of it. The indictment charges that he did falsely make, alter, and forge a certain promissory note for the payment of money "of the purport and value" as follows: "$3,100.00. Lu Kue, 0., August 21, 1886. Eleven months after date, for value received, we jointly and severally promise to pay M. S. Burdge, on order, thirty-one hundred dollars, with interest payable annually at the rate of eight per cent, per annum from date until paid. E. Gillespie." The instrument offered In evidence was a promissory note for the payment of money, not only of the purport and value of that set forth in the indictment, but identi- cal vnth it in all respects except that it had thereto attached a 430 Feuekal and State Criminal Eei'orter, Yoh. L power of attorney, in the usual form, to confess judgment upon it; and there were also indorsed, on the back of it, certain pay- ments of interest amounting to about $500. The note and power of attorney were over the same signature. The rules as to a variance between an indictment and the proof offered to support it have been much relaxed by statute, not only in this state, but elsewhere. In the first place, it is no longer necessary to set forth the instrument alleged to have been forged with literal accuracy. It is sufficient if it be set forth according to its "purport and value." Kev. St. § 7218. The word "value," as here used, does not mean its value in money as between the parties, but its value or effect in law, as a legal instrument. Chidester v. State, 25 Ohio St. 439. The rules of the common law as to the effect of a variance seemed rather to facilitate the escape of the guilty than to protect the innocent as they were designed to do. Hence it is now provided by statute, among other things, that when, on the trial of an indictment, there appears a variance between the indictment and the evidence "in the name or description of any matter or thing therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial is had find that such variance is material to the merits of the case, or may be prejudicial to the defendant." This preserves to the defendant all that he is en- titled to on the ground of a variance, without in any way imperil- ing the rights of the innocent. The court must determine, in the first instance, whether the variance, if there is one, is material to the merits of the case, or may be prejudicial to the defendant. "We must presume that the court did so, and held the variance, if one, to be neither material to the merits nor prejudicial to the defendant, in admitting the instrument in evidence. It is true that its action in this regard may be reviewed on error. Lytle V. State, 31 Ohio St. 196. But, as to a variance, it may be well questioned whether, by the rules of the common law, there was any shown between the indictment and the proof. The instru- ment averred to have been forged was a promissory note for the payment of money. The instrument offered and received in evi- BuKDGE V. State. 431 dence was sucli an instrument, and as to it there was no variance. The fact that it had a power of attorney attached did not affect its value as a promissory note; nor did the fact that there were payments indorsed on it affect its legal value or effect in this regard. Osborn v. liawley, 19 Ohio St. 130; "Wilson v. People, 5 Parker, Or. E. 178. All that can be claimed is that, on the same paper and under the same signature, there were two instru- ments, — one a promissory note, and the other a power of attor- ney, — both distinct in character, and as much so as if they had been on separate pieces of paper. The forgery was of the promis- sory note, and not of the power of attorney; and as, in this case, the forgery consisted in the alteration of a valid note, without any alteration by the forger in the power of attorney, it would seem that the indictment conformed to the facts as developed by the proof, and is open to no objection on the ground of a variance, if we were to apply the stricter rules that formerly pre- vailed. East, P. C. 925. But if it were otherwise, still was there any abuse of its discre- tion by the court, in admitting the instrument in evidence? This must depend on whether it was material to the merits of the case, or prejudicial to the rights of the defendant. A variance could only bo material to the merits where the instrument offered in evidence tended to prove a different subject of forgery. So that the only question that remains on this point is whether it would in any way prejudice the defendant. And we do not see how this could be the case unless, as claimed, it would impair the rights of the defendant to plead a former conviction, if he should be indicted again for the same offense. This claim, we thinlc, can- not be maintained. If, as shown, the instrument offered in evi- dence was not a variance from the indictment, and therefore sufficient to support it, the record of the conviction on that indict- ment would certainly be sufficient to support a plea of former conviction in a prosecution on a second indictment, setting forth the instrument forged to be of the same purport and value as that contained in the record of the conviction on the first indictment. ^nd if, in the second indictment, the instrument should be set 432 Federal and State Criminal Reporter, Vol L ^■ fortli witli tlie power of attorney attached and tlie payments in- dorsed on the back, and a question were made as to the identity of the former conviction with the latter prosecution, the doubt could be removed by parol evidence that the instrument offered on the former trial is identical with that offered in support of the plea; it being well settled that parol evidence is competent for such purpose. Eeg. v. Bird, 2 Eng. Law & Eq. 439; Bish. Cr. Proc. § 816; State v. Maxwell, 51 Iowa, 314; 1 K W. 666; Dunn V. State, TO Ind. 4Y; Walter v. State, 105 Ind. 589, 593; 5]Sr. E. 735; 3 Eice, Ev. 615. 2. It is also claimed that the court erred in the admission of certain testimony. The defendant below took judgment on the note for the amount due, under the power of attorney, in the court of common pleas of Lawrence county. After the com- mencement of the prosecution he executed a release and satis- faction of the judgment. The state offered evidence of these facts, and that the satisfaction was entered without any considera- tion. Objection was made, which was overruled, and exception taken. The defendant then offered evidence to show that the release was not a voluntary act on his part; that it was obtained from him, during the pendency of the criminal prosecution, by representations and statements as to what the consequences would be if he did not execute it, and that the prosecution would be dropped if he did. He was not in custody at the time, and the person obtaining the release had no control over his persoii or the prosecution. The court left the matter to the jury, with the instruction that, "if it appear by the evidence that the de- fendant released and declared satisfied said judgment, and was induced to do so by threats of criminal prosecution, or by promises to withhold criminal prosecution against him, such act, if thus f done under the influence of hope or fear, cannot be considered by the jury for any purpose whatever." If the release was a volun- tary act, the fact that it was without consideration was competent evidence in the case. Judgments for such amounts are not ordinarily released without consideration. The release, in con- nection with the facts in the case, tended to show a consciousness BuEDGE V. State. 433 tliat the judgment was wrong, and that the danger of a conviction of forgery might be avoided by its release. The claim of the plaintiff in error, however, is that the circumstance under which the release was obtained was a matter of preliminary proof to be determined by the court, and should not have been admitted in evidence until it had determined whether the release was the vol- untary act of the defendant. The general rule is that matters preliminary to the admission of evidence should be determined by the court; but when the court is in doubt about the matter, it may submit the questions arising upon the proof to the jury, under instruction to make no use of the evidence unless satisfied by the preliminary proof that it is competent, as done in this case. Thus, in Turpin v. State, 19 Ohio St. 540, which arose on an indictment for forgery, the court, being uncertain, left to the jury the ques- tion whether there was a variance between the name to the in- strument as laid in the indictment and that to the instrument offered in evidence, and this court sustained the ruling. The ruling made in the case just cited is quite general in practice; and has frequently been applied where confessions of a defendant are offered in evidence against him on a criminal charge, and there is a conflict in the evidence as to whether they were voluntary or not. See opinion by Morton, J., in Com. v. Piper, 120 Mass. 185, 188; and also Underh. Ev. § 89, and authorities cited. "We have examined all the assignments, and find no error in the record for which the judgment should be reversed. Judgment affirmed. Supreme Court of Indiana. Filed January 10, 1898. NAANES V. STATE. Ckimimal taw— Indictmknt— Dupltoity. An indictment cannot be assailed for the first time on appeal upon the ground of duplicity. Fed. Cki.m. Rup., Vol. 1—55 434 Federal and State Criminal Eeforter, Vol. L 2. Same— BilIj of exceptions. The only mode of making- aiRdavits filed to sustain alleged grounds for a new trial a part of the record in a criminal case, is to embody them in a bill of exceptions. 8. Evidence— Documentary. A copy of a hospital record, not authenticated in compliance with the requirements of section 466 E. S. 1894, is incompetent to show admission into such institution and symptoms of insanity. 4. Samtc. Proceedings of an examination by a commission as to the sanity of defendant, under section 3110 E. S. 1894, though duly certified and filed, are not evidence in a criminal prosecution. Appeal from a judgment convicting defendant of grand larceny. Willard & Kotertson, for appellant. "W". A. Ketcham, Atty. Gen., and Chas. S. "Wiltsie, Pros. Atty., for the state. JOED AW, J.— Appellant, over her plea of not guilty, and a special one, pleading insanity, was convicted upon the charge of grand larceny, and her punishment assessed by a jury at a fine of one dollar and imprisonment in the reform school for women and girls for a period of two years. A motion for a new trial was overruled, and the court rendered its judgment in accord- ance with the verdict of the jury. The errors assigned are: (1) "That the indictment upon which the appellant was convicted was bad for duplicity;" (2) that .he court erred in striking out the affidavit of David S. Leach, filed in support of the motion for a new trial: (3) that the court erred in overruling the motion for a new trial. The first error assigned presents no question for our considera- tion, as an indictment cannot be assailed for the first time in this court upon the ground of duplicity. There is no contention that the indictment does not charge a public offense, or one over which the lower court had no jurisdiction. Kussell v. State (ITov. term, 1894), 40 N. E. 666. Naaxes v. State. 435 Tlie second assignment must also be dismissed without con- sideration, for the reason that the affidavit of the affiant which is alleged to have been stricken from the files has not been in- corporated into the record by a bill of exceptions. The only reference to it which appears in the bill is the following : "Here- tofore inserted in the record. See line one, page thirteen and one- half of this manuscript." The fact that the afiidavit was filed does not alone serve to make it a part of the record, so as to pre- sent any question upon an appeal to this court. The requisite mode, and, in fact, the only one, recognized for making affidavits filed to sustain alleged grounds for a new trial a part of the record in a criminal cause, is to embody them in a bill of exceptions. Leverich v. State, 105 Ind. 277; 4 'N. E. 852; Meredith v. State, 122 Ind. 514; 24 K E. 161; Townsend v. State, 132 Ind. 315; 31 ]Sr. E. 797. In Eeed v. State (Nov. term, 1894) 40 N. E. 525, in considering the question, we inadvertently used the words "or order of court," from which it might possibly be inferred that this court intended to hold that an order of court in a criminal action would serve the same purpose in bringing affidavits into the record as does a bill of exceptions; the writer of the opinion in that appeal having in mind at the time the provisions of our Civil Code (section 662, Kev. St. 1894; section 650, Eev. St. ,1881), which have no application to criminal procedure, but relate exclusively to civil cases. The affidavit in question not being embraced in a bill of exceptions, this court has no legitimate means of knowing its character or contents, or for what purpose it was intended; and consequently we must presume in favor of the action of the trial court. The affidavit of Dr. J. M. Jones filed to establish the newly-dis- covered evidence relied upon by the appellant, as one of the reasons for a new trial, is not properly embraced in any bill of exceptions, being simply referred in like manner as was the one previously considered, and, for the same reason, is not available to appellant in her appeal to this court. Counsel next complain of the action of the court in refusing to admit in evidence what purported to be a copy of the register 436 FiiDEEAL AND StATE CRIMINAL KePORTEK, VoL. I. of the Central Indiana Eospital for tlie Insane, wliicli, as is stated, was / offered to sliow that the mother of appellant had been admitted as a patient into that institution, and also the symptoms of her insanity. This paper was sworn to by George F. Eden- harter, superintendent of the asylum, and it is therein stated by liim that the same "is a true copy of the records as they appear at said institution." By section 3040, Kev. St. 1894, it is pro- vided that the board of trustees of such institution shall require the superintendent to cause to be kept a hospital register, showing the date of admission of patients, etc. Under section 466, Eev. St. 1894 (section 462, Eev. St. 1881), copies of a record, book, or parts thereof, required by law to be kept in any public office in this state, are admissible in evidence when verified by a proper certificate of the custodian of such records or books as being true and complete copies of the records, books, or parts thereof in his custody, to which certificate must be annexed the seal of his office. In the event there is no official seal, then the statute requires the certificate of the clerk of the circuit court or superior court, attested by the seal thereof, to establish that the attestation of the copy of the record has been made by the proper officer. It is manifest that the attempt to authenticate the copy of the hospital record in controversy did not substantially comply 'with the re- quirements of the statute, and, for that reason alone, the evidence offered by appellant was not admissible, and the same was right- fully excluded. It was, to say the least, fatally insufficient in not certifying that the copy "is a true and complete one of the record" in his custody, and hence did not satisfy the provisions of the written law. Tull v. David, 27 Ind. 377; Weston v. Lumley, 33 Ind. 486; Board v. May, 67 Ind. 562; Painter v. Hall, 75 Ind. 208; Board v. Hammond, 83 Ind. 453. At the trial, the court, over the objections of appellant, per- mitted the state to introduce in evidence the proceedings of an examination by a commission as to the sanity of the appellant on October 30, 1894 (being but a short time prior to the trial), before Justices Daniels and Habich, of Marion county, Ind., under section 3210, Eev. St. 1894 (section 2843, Eev. St. 1881). Naanes v. State. 437 These proceedings were duly certified and filed witli tlie clerk of the Marion circuit court, and we must presume that they were necessarily instituted for the purpose of determining if she was a proper subject to be admitted as a patient into the hospital for the insane. These consisted of the statement required by the statute and the sworn evidence of Drs. Kahlo and Maxwell, and the finding thereon of the two justices of the peace. Dr. Maxwell stated, as his evidence, embodied in the proceedings, shows, that in his opinion the appellant was not insane; that "at times she feigned insanity, to escape criminal prosecution." Upon the evi- dence thus deduced before them, and upon an examination by them, as they state, the justices made a finding that the appel- lant was of sound mind. This record was offered by the state, and permitted by the court to go to the jury, for the purpose of showing that the appellant was sane at the time she committed the alleged larceny, to wit, October 24, 1894, and thereby re- butting the testimony introduced by her upon the trial u.pon the . question of her insanity. There is evidence in the case in be- half of the appellant tending to show that her alleged insanity had existed for several years prior to the commission of the crime with which she was charged. Tier counsel insists that the action of the trial court in adinitting in evidence these proceedings was clearly erroneous, and prejudicial to the rights of the appellant. With this contention, under the circumstances in the ease, we are constrained to concur. In Goodwin v. State, 96 Ind. 550, on page 564 of the opinion, this court, by Elliott, J., in referring to this kind of evidence, said: "It is maintained vnth much force in Leggate v. Clark, 111 Mass. 308, that the evidence is incompe- tent, and we are not prepared to say this is not the correct rule. The statute did not intend to do more than provide a method of procedure limited and restrained to a single purpose, and there is much reason for declaring that the judgment of the commission is not evidence in a civil or criminal prosecution. It is a very different thing from an inquisition of lunacy, for in such a pro- ceeding the status of the party is fixed as to all the world, while ihe statutory inquiry by the justices is restricted to one specific 438 Federal and State Cbiminal Eepoetek, Yol. L purpose." This commission is the creature of tlie statute, and is only intended by the latter to determine whetlier the person alleged to be insane is a proper subject to be admitted as a patient, for treatment, into the hospital for the insane. It is extrajudicial, and is not intended as is .the judicial proceeding in rem for the appointment of a guardian for the person and property of a lunatic, — to fix the status of the person over whom the inquisition is held. Upon the appellant's special plea, whereby she interposed her alleged insanity as a defense, the ques- tion thereunder for the jury to determine from the evidence was : Did she have mental capacity sufficient, under the law, at the time she committed the alleged offense, to render her subject to the penalties of the statute which she was charged by the state with having violated? In the case of Leggate v. Clark, supra, the court, in considering the question, said: "A man may be a proper subject for the treatment and custody of a lunatic hospital, and yet have sufficient mental capacity to make a will, enter into a contract, and to transact business, and be a witness. Kendall V. May, 10 Allen, 59." It may, in reason, also be said that a person found upon the inquiry of a commission not to be a fit sub- ject for admission as a patient, for treatment, into an insane asylum, may, nevertheless, be of such mental unsoundness as to have immunity from punishment for crime. The proceedings of this commission and the examination of the witnesses were matters with which appellant had nothing to do, and in no sense was she a party thereto. If the evidence of the witnesses as recorded in the proceedings of the commission, and whom she had no opportunity to cross-examine, should be held to be admis- sible against her upon this criminal charge, it would manifestly result in a denial of her right, upon her trial, under the consti- tution, to meet witnesses adverse to her "face to face." The evidence of Dr. Maxwell, before the commission, and which was read in evidence to the jury, was, as we have seen, to the effect that she was sane, and that she only feigned insanity in order to escape a criminal prosecution. That this may have exerted, against appellant, a controlling influsHce over the jury, Bkowk v. State. 439 cannot be successfully controverted. With equal propriety might the state have obtained and read in evidence to the jury, over appellant's objections, the affidavit of the witness embracing the same statements. Without further considering the question, and thereby extending this opinion, we must and do hold that these proceedings were not admissible for the purpose for which they were introduced by the state, and that the court erred in not excluding this evidence, for which error the judgment is reversed, and the cause remanded, with instructions to the trial court to grant appellant a new trial. A mandate is hereby award for the return of the prisoner to the custody of the sherifi of Marion county, which the clerk is directed to issue accordingly. Supreme Conrt of Alabama, December 18, 1895. BEOWN v. STATE. I. Adtji-tebt— Section 4013. Section 4012 of the Criminal Code Is directed against a state or condition of cohabitation which the parties intend to continue so long as they may choose, as distingiiished from a single act or occasional acts of illicit sexual intercourse. 3. Samb— Evidence. Such offense is but seldom, in its entirety, capable of direct posi- tive proof, but it is generally to be inferred from facts and circum- stances leading to it as a necessary conclusion. 8. Same— SiMiiiAK acts. When it is material to show the intent with which the pnrticular act or acts charged was done, evidence of another similar act or other similar acts, though in itself or of themselves, constituting a criminal offense, may be given. 4-iO Federal and State Criminal Reporter, Vol. L 4. Same. On tie trial of an indictment for adultery, it is admissible to stow that, subsequent to the finding of the indictment, the parties were living in adultery, if the time intervening vras not of such length as to repel all reasonable inference that there was between the two conditions continuity or connection. 5. Same — Instruction. An instruction that, if the defendant and the woman agreed to go to Mobile county and there live in adultery, and in pursuance of the agreement they did go to Mobile and live in that condition, there can be a conviction in the county of the agreement, is erroneous, 6. Same. A refusal to charge that "before the jury can convict the de- fendant they must be satisfied, to a moral certainaj^ not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion, and, un- less the jury are so convinced by the evidence of defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and important to his own interest, then they must find the defendant not guilty," is error. Appeal from a judgment convicting defendant of adultery. The state introduced as a witness one Wakine Pose, who testi- •fied that he knew the defendant and Caroline Barado and Phillip Barado, who was the husband of Caroline Barado. This witness was asked, "Do you know the time Caroline Barado left in the boat?" The defendant objected to this question, because it called for immaterial and irrelevant evidence. The court overruled the objection, and the defendant duly excepted. In answer to that question, the witness stated that he knew when Caroline Barado left in the boat; that the defendant and Caroline Barado went from his wharf in Baldwin county, Ala., in defendant's boat, in the summer of 1895, going in the direction of Jfobile, Ala. The defendant moved to exclude this testimony, on the ground that it was immaterial, irrelevant, and inadmissible, and duly excepted to the court's overruling his motion. The state introduced as a witness one Prank Grass, who, upon being told by the solicitor to tell what he knew about the case, testified as follows: "Airs. Caroline Barado came to witness' house at Point Clear, Baldwin county, Ala., and in about five minutes thereafter defendant came in, and said to Caroline, 'Let's go.' That said Caroline replied, Brown v. State. 441 'I don't Icnow wtat I am going to do.' That defendant then asked witness to take said Caroline on the beach, and that witness replied, 'No, sir; I don't want any trouble in my house.' That said Caroline then sent one Fred, known as 'Dutch Charlie,' on the beach to see if he could see Phillip Barado, and that said Fred came back and said 'ISTo.' That defendant then said to Caroline, 'Let's go now; we have a fair wind.' That witness did not see Caroline Barado and defendant again before he saw them in court on trial for this cause." The defendant objected to the testimony of this witness, and moved to exclude it from the jury, on the ground that it was immaterial, irrelevent, and inadmissible. The court overruled the objection and motion, and to this ruling the defendant duly excepted. James "W. O'Neil, as a witness for the state, testified as follows: That he knew the defendant and Caroline Barado; that he saw the defendant and Caroline Barado and her two children at the wharf at Daphne, Baldwin county, Ala., late in the afternoon, and there was a heavy squall coming up, and that the witness said to defendant, "Mrs. Barado had better stop at my house," to which the defendant replied that he had a comfortable cabin on the boat, and could keep her com- fortable in there. That witness looked out early the next morn- ing towards the wharf to see if he could see anything of the de- fendant and Mrs. Barado, and that he saw the boat of defendant lying at anchor a short distance from the wharf, and in the cabin he saw the heads of four persons, a man, a Avoman, and, apparently, two children. The defendant moved to exclude this testimony from the jury, on the ground that it was immaterial, irrelevent, incompetent, and inadmissible. The court overruled the motion, and the defendant duly excepted. The state introduced the showing as to what the sheriif of Mobile county and one of his deputies would testify if present at the trial. The testimony set out in said showing was as follows: "That on Sentember 20, 1895, they arrested Caroline Barado and Nicholas Brown under a warrant issued by the judge of the county court of Baldwin county, Ala., under a complaint charging them with living to- gether in adultery. That they arrested Caroline Barado at Fed. CniM. Rbp., Vol. I— D6 4-12 Federal and State Criminal Eeporter, Vol. L a house on Little Dauphin Island, Mobile county, Ala., while she was cooking breakfast at the house where Nicholas Brown re- sided. That said house had only one bed in it, which was a double bed, and had two pillows on it. That they arrested Nicholas Brown where he was fishing in the neighborhood of said house in said county. That said Caroline Barado and said Nicholas Brown, on being permitted to get some clothing to take with them before leaving the place, each took clothing, including under- clothing, from the same box under the bed in said house. That when the witnesses went to said house and arrested said Caroline Barado there was a woman's nightgown on or near the bed above described." The defendant objected to each separate portion of the testimony of these witnesses, as contained in the showing, and the whole of the testimony, as stated therein, and moved to exclude the testimony on the ground that such testimony was irrelevent, incompetent, and inadmissible. The court overruled each separate objection and motion, and to each ruling the de- fendant separately excepted. This was all the evidence intro- duced by the state, and the defendant moved the court to exclude all of such evidence, which motion the court overruled, and the defendant excepted. Thereupon the defendant moved the court to discharge him. The court overruled this motion, and the defendant duly excepted. The defendant introduced evidence tending to show that he was not guilty as charged in the indict- ment; that he had been employed by Phillip Barado, the husband of Caroline Barado, and that, when he left the employment, Caroline Barado requested him to take her and her two children to Mobile, which the defendant did; that afterwards, at the re- quest of said Caroline Barado, he took her to Little Dauphin Island, in Mobile county, Ala., where she was employed by the defendant to cook, clean up defendant's house, and wash for him. In the court's general charge to the jury, among other things, he instructed them as follows: "If the defendant and Caroline Barado agreed in this county to go to Mobile county, Ala., and live in the state of adultery, and went off from Point Clear under the circumstances described by the witnesses in this case, and Brown v. State. 4i3 then went together to Mobile county, and lived in the state of adultery, and such living together was a consummation of the pre- vious agreement, he would be guilty." To this portion of the court's general charge the defendant fully excepted. The de- fendant requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the same: (a) "The court charges the jury that before the jury can convict the defendant they must be satisfied, to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent vnth every other rational con- clusion; and unless the jury are So convinced by the evidence of defendant's guilt that they would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then they must find the defendant not guilty." Chaa. L. Bromberg, Jr., for appellant. Wm. C. Eitts, Atty. Gen., for the state, BKICKELL, 0. J. — Adultery, "the voluntary sexual inter- course of a married person with one not the husband or wife," is not the offense, but an element or constituent of the offense, the statute renders indictable. Cr. Oode, § 4012. As has beeji often explained, the statute is directed against a state or condition of cohabitation the parties intend to continue so long as they may chose, as distinguished from a single act or occasional acts of illicit sexual intercourse. This state or condition may well be assumed in a single day, if the parties so design, as any other state or condi- tion may be so assumed. If for a single day they live together in adultery, intending a continuance of the connection, the offense is committed, though the cohabitation may be broken off or interrupted from any cause whatever. Hall v. State, 53 Ala. 463; Lawson v. State, 20 Ala. 65; Collins v. State, 14 Ala. 608; State V. Glaze, 9 Ala. 283. It is but seldom the offense, in its entirety, is capable of direct, positive proof. It is generally to be inferred from facts and circumstances leading to it as a neces- sary conclusion. In Lawson v. State, supra, it was said by Goldth- 444 Federal and State CiiiMiKAL Eepokteb, Vol. L waite, J. : "The fact of illicit intercourse is one wMcli, from its nature, can very rarely be directly proved, and must in the very great majority of eases be inferred from circumstances, the weight and conclusiveness of which vary according to the situation of the parties, the habits of society and other incidental circum- stances. Facts, apparently trivial and innocent in themselves, sometimes derive importance from their connection and combina- tion with other facts." The fact that the defendant and the woman, with her two children, came to Baldwin county together, in the boat of the defendant; that she went to the house of Grass, and that a few minutes after her arrival the defendant went to the house, and the conversation there occurring between them; the request made by the defendant of Grass to take the woman to the beach, and his response; the sending out on the beach to see if the husband of the woman could be seen, and, when it was ascer- tained that he could not, their departure for the boat of defendant, and leaving in the boat with the two children; the proposal of O'Neil that the woman should stop at his house; the answer of defendant, in her presence, that there was a cabin on the boat in which she could be comfortable; that on the next morning the boat was at anchor a short distance from the wharf, and in the cabin there were apparent the heads of four persons, a man, a woman, and two children; the manner and condition in which the defendant and the woman were living, and their conduct when arrested in Mobile to answer the accusation, — were facts and circumstances not without relevancy, and proper for the con- sideration of the jury in determining whether the state and con- dition to which the statute is directed had been assumed. Their sufficiency — their weight and conclusiveness — it was the province of the jury to determine, under proper instructions from the court. The immediate tendency of the evidence touching the condition in which the parties were living, and their conduct when arrested in Mobile, was to show unlawful cohabitation in Mobile, — a dis- tinct, substantive offense, independent of that charged in the accusation, and yet not inconsistent with or negativing that charge ; for it may well be that, at different periods of time, the Brown v. State. 445 relation or condition to wliicli the statute refers may exist in two or more counties. It is true, as is insisted in ,the argument of counsel, that the general principal is that evidence of a distinct, substantive offense is not admissible in support of another offense. The rule has its exceptions, and of these a recognized exception is that, when it is material to show the intent with which the particular act or acts charged was done, evidence of another similar act, or other similar acts, though in itself, or of themselves, constituting a criminal offense, may be given. Gassenheimer v. State, 52 Ala. 313. The state and condition in which the parties were living in Mobile, it is apparent, was assumed in but a brief space of time after the occurrence of the circumstances in Bald- win county. If, subsequent to these occurrences, the parties are found living in the state and condition they indicate, an inference may arise that, though there was a change of locality, the state and condition was continuous. In Com. v. Nichols, 114 Mass. 285, it was ruled that acts of adultery between the defend- ant and the same woman, near the time of the adultery for which he was indicted, though committed in another county, were proper to be proved in support of the indictment. In Lawson v. State, supra, it was held admissible to show that, subsequent to the find- ing of the indictment, the parties were living in adultery, if the time intervening was not of such length as to repel all season- able inference that there was between the two conditions con- tinuity or connection. We find no error in the rulings of the court below as to the admissibility of evidence. The substance of the instruction to the jury to which an ex- ception was reserved is that if the defendant and the woman agreed to go to Mobile county and there live in adultery, and in pursuance of the agreement they did go to Mobile county and live in that condition, there could be a conviction under the accu- sation. As we gather from the argument of counsel the instruc- tion was supposed to be authorized by the statute (Cr. Code, § 3719), which declares that "when an offense is committed partly in one county and partly in another, or the acts, or effects thereof, constituting, or requisite to the consummation of the 446 Federal and State Ckiminal EepOrter, Vol. I. oflfense, occur in two or more counties, the jurisdiction is in either county." It was a rule of the common law that when an oflfense was constituted by a series of acts, a part of which were done in one county and a part of another, there could be no prosecution in either, unless so much was done in the one as would constitute a complete offense. 1 Eish. Cr Proc. § 54. Examples of the application of the rule will be found in 1 Chit. Cr. Law, 177 j 5 Bac. Abr. tit. "Indictment," subd. 2. The controlling pur- pose of the present statute was the abrogation of the rule of the common law. A single, indivisible oflfense, not consisting of Bcveral parts, is not within the operation of the statute. If there was no more in Baldwin county than the agreement of the parties to live in adultery in Mobile county, however immoral the agree- ment was, an indictable oflfense was not committed. Miles v. State, 58 Ala. 390; Shannon v. Com. 14 Pa. St. 226; Smith v. Com., 54 Pa. St. 209. The offense the statute denounces may have been contemplated, but it rested in contemplation merely. There was not, and could not be elsewhere than in Mobile county, an attempt to commit it. An attempt to commit a crime may be indictable; but the mere intent to commit it, unaccompanied by any act in furtherance of the intent, cannot be matter of indict- ment. The living together in adultery, the state and condition against which the statute is directed, in its nature and essence, is a single, indivisible offense, which cannot be severed. It com- mences when the state or condition is assumed, and not until it is assumed; and it is indictable only when and where the state or condition is actually and intentionally entered upon and assumed. There was error in the giving of this instruction. The instruction requested by the defendant was extracted literally from an instruction which was declared at the last term to assert a correct legal proposition. Burton v. State (Ala), 18 South. 284. When analyzed and interpreted, the instruction means no more than that the guilt of the accused must be fully proved, — as it is usually expressed, proved beyond a reasonable doubt, — and that this degree of proof is not reached unless all reasonable supposition of innocence is excluded. When, in its present form, Howard v. State. 447 / tlie instruction may be given, the court, ex mero motu, if appre- hensive that it may unduly influence the jury, or that it may mislead them, has the power, and it may become a duty, to ex- plain its true interpretation and meaning. McKleroy v. State, 77 Ala. 95. For the errors pointed out the judgment must be reversed, and the cause remanded. The defendant will remain in custody until discharged by due course of law. Supreme Court of Alabama. December IS, 1895. HOWAED V. STATE. I. JUET— Waivbk. Irregularity in the organization or empanelling of a petit jury is waived, if objection is not made before entering on tbe trial. 8. Indictment — Duplicity. Where several offenses are of the same general nature and be- long to the same family of crimes, and the mode of trial and nature and degree of punishment are the same, they may be joined or in- cluded in different counts of the same indictment. 8. Same— ELKCTroN. The court should never interfere, either by quashing the indict- ment or by compelling an election when the joinder is simply de- signed and calculated to adapt the pleading to the different aspects in which the evidence on the trial may present a single transaction. 4. Evidence— Material. Upon trial for sheep stealing, evidence of a witness that he had seen several sheep of the prosecutor with the marks changed to the mark of the defendant, is not subject to any just objection. 448 Federal and State Criminal Eepobteb, Vol. L 6. Trial— WiTHDRAwiNa case. The court should not withdraw the case from the conEideration of the jury, because the facts and circumstances, when dissevered and disconnected, are weak and inconclusive, if their probative forces when combined may be sufficient to satisfy the jury of tha i guilt of the defendant. 6. Criminal law — Instruction. There is no prescribed formula, under certain confidential meth- od, which must be observed in framing instructions to a jury. 7. Same. It is essential that the language in which they are expressed is not ambiguous, but is fair, accurate and otherwise in its meaning; and an instruction which has a tendency to mislead or to confuse the jury, if not explained so as to free it of this tendency, may be properly refused. 8. Same — Reasonable doubt. Where the acts of the accused as developed in the evidence are explainable upon a reasonable hypothesis consistent with his inno- cence, there is reasonable doubt of his guilt, entitling him to an acquittal. • Appeal from a judgineiit convicting defendant of stealing a sheep. The appellant was tried under the following indictment: "The grand jury of said county charge that, before the finding of this indictment, Francis A. Howard feloniously took and car- ried away one sheep, the personal property of William G. Pringle. The grand jury of said county charge that, before the finding of this indictment, Francis A. Howard, with intent to defraud, did mark or brand an unmarked sheep, or did alter or deface the mark or brand of such animal, the property of William G. Pringle, — against the peace and dignity of the state of Alabama." On the trial of the cause, as is shown by the bill of exceptions, the state introduced as a witness W. G. Pringle, who testified that he saw the defendant driving a flock of sheep, in which were some belonging to witness, some to the defendant, and some to other EowAED V. State. 419 persons. The defendant then moved the court to require the Btate to elect on which count in the indictment it would proceed, ■whether for the larceny of the sheep, or for the alteration of the mark of a sheep. The court refused this motion, and the defend- ant duly excepted. Darby Odom, a witness for the state, testi- ified that he had seen a sheep which belonged to W. G. Pringle ifeeding with other sheep near the house of the defendant, and ithat the mark of this sheep had been changed from Pringle's mark to the defendant's mark. He identified the sheep on account of its unusual appearance and peculiar spots. J. H. Stokes, one of the witnesses for the plaintiff, upon being asked if he had seen any of Pringle's sheep whose mark had been changed to the defendant's mark, testified "that he had seen several of Pringle's sheep whose mark had been changed from Pringle's mark to the defendant's." The defendant objected to the wit- ness being allowed to testify as to the change of the mark of more than one sheep, or of any other sheep than the one for which the defendant was being prosecuted, and moved to exclude this tes- timony of the witness Stokes. The court overruled the objec- tion and motion, and to this ruling the defendant duly excepted. The defendant, as a witness in his own behalf, testified that he 'had never stolen or taken away any sheep belonging to W. G. Pringle, or changed the mark of any sheep belonging to him; that he did not remember the circumstances mentioned by the witness Pringle, but that it was quite common for the sheep of different persons to mingle in the same flock when being herded or driven, since the sheep of different persons in the same neigh- borhood used the same range. This being substantially all the evidence, the defendant moved the court to exclude all of the tes- timony for the state. The court overruled this motion, and the defendant duly excepted to such ruling. The defendant then moved that the state be required to elect on which count in the indictment it would proceed, and the solicitor thereupon elected to proceed on the first count, for the larceny of the sheep which had been described by the witness Odom. The defendant re- quested the court to give to the jury the following written charges, Fbd. Ckim. Rbi". Vol, I,— "i? 450 Fedkkal and State Criminal Eepoktek, "Vol. I. and separately excepted to tlie court's refusal to give each of them as asked: (H) "The court charges the jury that if they believe the evidence in this case, they must find the defendant not guilty." (E) "The jury must find the defendant not guilty if the conduct of said defendant, upon a reasonable hypothesis, is consistent with innocence." (1) "The court charges the jury that if they be- lieve, from the evidence, that there is any likelihood of the defend- ant's innocence, they should acquit him." (2) "The court charges the jury that if the evidence satisfies them that it is merely likely that the defendant is guilty, they should acquit him." (4) "The court charges the jury that a mere likelihood of the defendant's innocence, founded on the evidence, is suffi- cient for his acquital." Clarke & Webb, for appellant. Wm. C. Fitts, Atty. Gen., for the state. BRICKELL, C. J. — 1. Irregularity in the organization or Im- panelling of a petit jury is waived, if objection because of it is not made before entering on the trial. If first presented on error, as in the present case, as cause for the reversal of a judgment of con- viction, it comes too late. It is not necessary, therefore, to de- cide whether, in the organization of the petit jury, in the events which had occurred, there was regularity or iregularity. 1 Thomp. Trials, § 113. 2. Larceny of any one of the domestic animals enumerated in the statute, or the marking or branding of them with intent to- defraud, or altering or defacing a mark or brand, is a felony. Cr. Code, §§ 3789-3831. The several offenses are of the same general nature, and belong to the same family of crimes, and the mode of trial, and nature and degree of punishment, are the same. Joining or including them in different counts of the same indictment is sanctioned by the rules of the common law as it prevails in this state, and by long usage. 1 Brick. Dig.p. 500, §§ 750, 751; 3 Brick. Dig. p. 281, § 474. The theory on whiel* the joinder proceeds is that each count alleges a distinct, substan- HowAiiD V. State. 451 tive offense; but, in practice, it is generally intended to meet tlie different phases in which the evidence may present the same offense. Adams v. State, 55 Ala. 143; Orr v. State (Ala.) 18 South. 142. 3. In Mayo v. State, 30 Ala. 32, it was said: "When two dis- tinct felonies are charged in different counts, it is not a matter of legal right, pertaining to the accused, that the state should be com- pelled to elect for which one of the offenses it will prosecute; nor will the court compel such election, when the two counts are joined, in good faith, for the purpose of meeting a single offense. It is a practice sanctioned by common custom, and by the law, to charge a felony in different ways, in different counts of the in- dictment, so as to provide for the different phases which the evi- dence may present upon the trial; and when such is the bona fide purpose of the joinder of counts, the court never exercises its power of quashing the indictment or compelling an election." After citing many authorities in support of the proposition, the court proceeds: "The principle to be extracted from these authorities is that the court should always interpose, either by quashing the indictment or by compelling an election, when an attempt is made, as manifested by either the indictment or the evidence, to convict the accused of two or more offenses growing out of distinct and separate transactions; but should never inter- pose in either mode when the joinder is simply designed and cal- culated to adapt the pleading to the different aspects in which the evidence on the trial may present a single transaction." The doctrine of this case was reaffirmed in Orr v. State, supra, at the last term, and, observing it, the several motions of the defendant to compel the state to elect on which count of the indictment it would proceed, or the particular animal which it claimed as the subject of the offense, were properly overruled. Voluntarily, after the evidence was closed, the prosecuting officer elected to proceed on the first count, and for a particular animal as the sub- ject of the offense, and this was the full measure of the right of the defendant in any event. Whart. Cr. PI. § 290. 452 FjiDERAL AND StATE CRIMINAL, EePOETEE, VOL. L 4. The evidence of Stokes, that he had seen several sheep of the prosecutor with the marks changed to be the mark of the de- fendant, was not subject to any just objection. The tendency of the evidence was to fix on the defendant knowledge of the sheep of the prosecutor and of his mark, a fact material in any phase or aspect of the case. 5. The motion made by the defendant, on the close of the evi- dence offered by the state, for the exclusion of the evidence be- cause of its insufficiency to support a conviction, was properly overruled. On every trial by jury in a civil or criminal case, there may arise a preliminary question, — a question of law the court must decide, — and that is whether the party on whom rests the burden of proof has introduced evidence which ought prop- erly to be submitted to the jury in support of the issue he is bound to maintain. As the principle is expressed by Greanleaf, borrowing the language of Buller, J., in Company of Carpenters, etc., V. Hayward, 1 Doug. 375: "Whether there be any evi- dence or not is a question for the judge. "Whether it is suffi- cient evidence is a question for the jury." 1 Greenl. Ev. § 49. The degree of the evidence, whether, it must be of such force that, in the opinion of the court, the jury could reasonably conclude the issue was proved, or the burden of proof satisfied; or whether it may have only a tendency to establish the issue, the necessities of this case do not require us to consider. It is enouch to say there was not that want of criminating evidence, — such want of evidence of every fact material to a conviction, — as required that the court should withdraw it from the consideration of the jury. The facts and circumstances in evidence, if dissevered and dis- connected, may be weak and inconclusive; but their probative force, when combined, as it was the province of the jury to com- bine them, under proper instructions from the court, may have satisfied them of the guilt of the defendant. If in their conclu- sions the jury should err, if their verdict should be manifestly wrong, if the evidence was not of that degree justifying a con- viction of crime, the court should apply the correction of a new trial. Howard v. State, 453 6. There is no prescribed formula, no certain, conventional method, which, must be observed in framing instructions to a jury. The instructions must embody correct legal propositions applicable to the issues and evidence expressed in clear, unam- biguous language, free from all involvement, atid from all ten- dency to mislead or to confuse the jury. These are the essential elements of instructions, as defined by repeated decisions of this court; and instructions requested, wanting in them, have been often declared properly refused. In Bain v. State, 74 Ala. 38, it was held that a charge requested in these words: "A proba- bility of the defendant's innocence is a just foundation for a rea- sonable doubt of his guilt, and therefore for his acquittal," asserted a correct legal proposition. The court said: "Proba- bility is the state of being probable ; and 'probable' has been de- fined to be, 'having more evidence for than against;' 'supported by evidence which inclines the mind to belief, but leaves some room for doubt.' Webst. Diet. ; Worcest. Diet. It clearly in- volves the idea of preponderance of evidence, as used in con- nection with testimony. Manifestly, if the evidence prepon- derates in favor of the prisoner, — that is, if the evidence in his favor outweighs or overbalances that against him, — it is impos- sible for a jury not to entertain a reasonable doubt as to his guilt."' There are a number of decisions since, approving of this prin- ciple or doctrine. This is the first case reaching this coiirt in which there has been the experiment of substituting, in such an instruction, other words asserted to be the equivalents or synonyms of "probable" and "probability." In several of the instructions requested and refused we find the words "likely" and "likelihood," instead of "probable" and "probability." Whatever may be the true significance of these substituted words, however closely they may in some of their significations approximate the words for which they are substituted, their employment in connection with evidence in courts of justice is unusual, and, to say the least, would tend to confuse, rather than to enlighten and aid, the jury. There can be no assurance that the jury would ascrilje to them no other significance than that which is attached to "probable" and 431 Federal and State Ckiminal Eeportek, Vol. L "probability," when applied to tbe evidence tbey are to consider. ^\'hile, as we have said, there is no formula, no conventional method, to which instructions must conform, it is essential that the language in which they are expressed be not ambiguous, but be clear, accurate, and precise in its meaning; and an instruction which has a tendency to mislead or to confuse the jury, if not explained, so as to free it of this tendency, may be properly re- fused. There was no error in the refusal of the several instruc- tions to which we are referring. In every criminal case, the burden rests upon the prosecu- tion to show beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis, every fact or circumstance necessary to fix the guilt of the accused. In the present case, if the conduct of the accused, i. e. his acts as developed in the evi- dence, was explainable upon a reasonable hypothesis consistent with his innocence, there was reasonable doubt of his guilt, entitl- ing him to an acquittal. Jones v. State, 90 Ala. 629; 8 South. 383. This is the proposition embodied in the instruction marked "E," and its refusal was error. For the error pointed out the jiidgment must be reversed, and the cause remanded. The defendant will remain .in custody until discharged by due course of law. Supreme Court of Alabama. Filed December 18, 1895. COSTELLO v. STATE STATHAKIS v. STATE. PAPALEXANDEAKIS v. SAME. NusiANCE— Stbeets— Obstrtctiojt. When it is established that a party has, permanently and un- lawfully, obstructed a material portion of a public street wbich. the public have a right to use and, but for the obstruction, would use, for public purposes, it is presumed that the public have been OosTELLO V. State. , 455 injured and put to inconvenience by reason of the obstruction, and this constitutes, in law, an indictable nuisance. 2. Same. In such case, the prosecutor need g-o no further and prove that such erections actually incommode the general public. S. Same. Evidence is not admissible to show that public injury did not result. 4. Same. The rule is different where one is charged with an improper and detrimental exercise of his public right to use the street. 5. Same. Charter of Birmingham does not impower city to permit the streets to be diverted from their public use to private purposes, by suffering individuals to obstruct and appropriate them. Appeal from a judgment convicting tlie appellants of main- taining a public nuisance. Each of the defendants showed that they had been granted a license in the city of Birmingham to occupy the portions of the highway which were used by them for fruit stands. Upon the introduction of all the evidence, the court, at the request of the state, instructed the jury in writing as follows: "Gentlemen of the jury, if you believe the evidence beyond a reasonable doubt, you should find the defendants guilty." To the giving of this charge in each of the cases, each of the defendants separately excepted. Walker, Porter & Walker and J. J. Altman, for appellants. Wm. 0. Fitts, Atty. Gen., for the state. HEAD, J. — These are three several cases, being criminal prose- cutions, one against each of the appellants, for erecting or main- taining a public nuisance in the city of Birmingham. The charge against each, as set forth in the complaint, is that in a part of a designated public highway, within the corporate limits of said city, in the county of Jefferson, state of Alabama, he did, know- ingly, intentionally, and unlawfully, erect, keep, or maintain, 456 Federal and State Criminal Eeporter, Vol. I. for the purpose of doing business, a certain fruit stand, by rea- son whereof said highway, or a portion thereof, was obstructed and made less convenient, to the great damage and common nui- sance, not only of all the inhabitants of said city, but to all other good citizens of said state there passing and repassing and labor- ing. The undisputed evidence showed that Costello, for a year next before the commencement of the prosecution, kept and maintained a fruit stand, constructed of timber and lumber, so arranged as to display fruits, etc., for the purpose of doing busi- ness. It was situated on the inside portion of the sidewalk on Twentieth street, in said city, between First and Morris avenues, and next to, and along by the side of, a four-story brick storehouse. It was thirty-one feet long, three feet and eight inches wide, being two feet higher at the lower or outer edge, and rising, as it receded in width towards the storehouse, to a height of four feet next to and adjoining the storehouse; the width at the top, and next to the storehouse, being one foot. Prior to the erection of this stand, there was in the sidewalk, next to the building, an open way, leading to a room or cellar under the building; and in Octo- ber, 1894, Costello covered this opening, and erected the fruit stand thereon, the stand occupying only the surface space occu- pied by the cover to the opening. The opening was made by the owners of the storehouse in the year 1887, and remained there until covered by Costello; the city authorities never having ob- jected to it. The cellar or room to which it afforded entrance has not been used since the opening was covered. Costello. kept the stand under a lease from the owners of the building. By city ordinance, a license tax of twenty dollars per annum was imposed upon the business of keeping a fruit stand on a sidewalk of the city, which license had been taken out and tax paid by appellants, for the time covered by the complaints. Birmingham, during the time in qu.estion, was a city of 26,500 population; and Twentieth street was, and had been for many years, a public street or highway therein; and the place where the stand in question was kept "is in the most populous portion of a part of the busi- ness portion of said city, and said Twentieth street and said side- CosTELLO V. State. 457 walk are as much traveled as any other street m' said city, and said sidewalk is a part of said highway. The sidewalks were fifteen feet wide. So far as the legal questions pre- sented by the records are concerned, there is no material dif- ference in the facts of the several cases. There are slight differences in the dimensions of the stands. Two are for fruits, and one for candies and confections. They are located at differ- ent places in the city, but all on important and commonly used public sidewalks of the city; and they take up, practically, the same sidewalk space, and in the same manner. There was no cellar opening in the two other cases. Here, then, we have, in either case, the undisputed fact that, at least, three and one-half feet of the fifteen feet width of side- walk (nearly one-fourth), and nearly thirty feet of its length, were exclusively and permanently appropriated by the defendant to his private uses, to the entire deprivation of the public of the space so appropriated; and to this must be added, as a necessary legal inference from the fact that these stands were used for carry- ing on the business of selling fruits, etc., the permanent occupa- tion of the sidewalk by the person or persons engaged in making the sales; and by the standing thereon, from time to time, day by day, of customers trading at such stands. The trial court was of opinion that these facts, of themselves, constituted, as matter of law, public nuisances, indictable as such, without requiring the prosecutor (as then and now contended for by appellants' counsel) to go further arid prove that such erections actually incommoded the general public. It seems to us that the statement of the case necessarily precludes any other conclusion. It is not and cannot be denied that the public has the right to the use of the entire sidewalk for the purpose of passage and other public purposes; that the appellants have, without lawful authority, permanently appropriated, to their own exclusive use and enjoyment, material portions of the sidewalks in question, thereby wholly depriving the public of the xise of such portions. An unlawful depriva- tion of a substantial legal right necessarily implies injury to the party so deprived; and it is so with reference to the right of the Fed. Cui.m. Rep., Vol. I.— 53 458 Fedeeal xsb State Criminal Repoktek, Vol. I. public to the free use of the streets. When it is established that a party has, permanently and unlawfully, obstructed a material portion of a public street which the public have a right to use, and, but for the obstruction, would use, for public purposes, it is thereby concluded that the public have been injured and put to inconvenience by reason of the obstruction, and this consti- tutes, in law, an indictable nuisance. Mr. Freeman tersely states the law, as extracted from the numerous authorities he cites, in his extended annotations of Callanau v. Oilman (N. Y. App.)' 1 Am. St. "Rep. 840, (14 N. E. 264), as follows: "The public have a right to passage over a street to its utmost extent, unob- structed by any impediments. Any unathorized obstruction, which necessarily impedes the lawful use of a highway, is a pub- lic nuisance at common law." And Judge Euffin, a distin- guished jurist, said, in State v. Edens, 85 N. C. 526: "Any per- manent obstruction to a public highway, such as would be caused by the erection of a fence or building thereon, is, of itself, a nui- sance, though it should not operate as an actual obstacle to travel, or work a positive inconvenience to any one. It is an encroach- ment upon a public right, and, as such, is not permitted by the law to be done with impunity." Confusion of ideas upon this sub- ject grows out of the failure to properly distinguish between street obstructions which are per se unlawful, and capable of -working public detriment, and those which are not, in themselves, unlawful, but may be so, by virtue of circumstances necessai-y to be shown in evidence in order to establish the criminality of the act. There are classes of highway obstructions which may create public inconvenience, and yet are not unlawful. Mr. Freeman also makes these appear very clearly. After laying down the principle above credited to him, he proceeds, in the same anno- tation, to say: "Temporary obstruction and partial occupation of streets may, however, be justified on the ground of necessity. The street may be so obstructed by placing thereon materials for building or repairing, if it be done in such a way as to occasion the least inconvenience to the public, and the obstruction be not continued for an unreasonable length of time. So, too, a pri- CosTELLO V. State. 459 vate person carrying on business may occupy a portion of the street for a reasonable length of time for the necessary purpose of receiving and delivering his goods. A street may also be used for the purpose of moving a building from one place to another, provided it be done in a reasonable and judicious manner. Streets may be lawfully used for other purposes than the accommoda- tion of the traveling public, provided such use be not incon- sistent with the reasonable free passage of travelers over them. Slight inconveniences and occasional interruptions in the use of a street, which are temporary, and reasonable, are not illegal merely because the public may not, for the time being, have the full use of the highway. * * * If a person finds it neces- sary to obstruct a public street, he must see to it that the incon- venience to the traveling public be as slight as possible, and that it be allowed to continue for a reasonable time only. And a reasonable time is such as is necessary, in the ordinary course of ibusiness, for its removal. A teamster has no right to keep his team standing in the street in such a manner as to impede travel for an unnecessary length of time. If his wagon breaks down, and he is compelled to throw his goods upon the street, he must remove them out of the way in a reasonable time. A tradesman has no right to deposit his goods and wares on the street for the purpose of exposing them for sale. An individual has no right to appropriate a part of the street to his exclusive use in carrying on his business, even though enough space be left for the passage of the public. ISTor has a storekeeper any right to use the side- walk in front of his store as sort of annex to his place of busi- ness. If a man's premises are not sufficiently extensive for the transaction of his business, without encroaching upon the street or sidewalk, he is bound to seek more spacious quarters elsewhere. The public convenience is paramount to the necessities of private individuals." No doubt, the habitual and constant occupation of a material portion of the sidewalk for displaying goods for sale, which would naturally interfere with public passage, would be declared a nuisance per se. Speaking of permanent structures, be says: "Permanent structures, obstructing streets, and inter« 460 Federal and State CeimhsTal Eeporter, Vol, L fering with their unimpeded use by the public, are nuisances, which may be abated, although there be space left for the passage of the public. The following are instances of such structures, held to be nuisances: A barn occupying nearly half the street in a populous village ; a show case in front of a store extending beyond the house line ; a bay window sixteen feet above the side- walk, and projecting three and a half feet over the sidewalk; a bridge extending across a street from the second story of a build- ing on the opposite side, supported by the buildings, and being thirteen feet and three inches above ground; hay scales in the street, in front of the owner's premises; a fruit stand encroaching^ upon the sidewalk; a show board extending eleven and a half inches over the sidewalk in front of a shop; a wooden awning in front of a store extending over the sidewalk. But in Hawk- ins V. Sanders, 45 Mich. 491; 8 N. W. 98, it was held that such an awning was not per se a nuisance. So, too, in Osborn v. Ferry Co., 63 Barb. 629, it was held that a log of wood placed by the defendant in the public street, at the threshold of its gate, was a nuisance." Mr. Freeman collects and cites a great array of authorities in support of the principles he lays down. "We have read the most of them, as well as a number of others, and they establish, to our entire satisfaction that obstructions of the kind in the present cases are per se nuisances. Being in themselves, without more, unlawful infringements of the public right to have the free use of the whole of the streets, which includes the side- walks, for the purposes for which the streets were dedicated or established, they are, without more, conclusive of public injury. In such cases, evidence would not be admitted that public injury did not result. Such evidence, beyond what the facts them- selves manifest, would consist in the opinions of witnesses merely. One jury might accord such weight to such opinions as to result in conviction, another in acquittal, when the acts are, without dis- pute, identical and unlawful, and the legal consequences of both are necessarily the same. It would be a veiy discordant adminis- tration of justice to have Costello convicted and Stathalds ac- quitted, when both have, with out question, committed the very same CosTELLO f. State, 461 unlawful acts, witli the same consequences, merely because one jury ■viewed tlie opinion of men, as to the consequences, one way, and another jury the other way. Inasmuch as the law, upon the undisputed facts, declares both the nature of the act and its con- sequences, such opinions will not be received. The rule is different where one is charged with an improper and detrimental exercise of his public right to use the street. Thus, for instance, as we have seen, a merchant has the right to use the street for receiving and delivering his goods, but he must do so in a reasonable and proper manner, — in a manner that will not unreasonably impede public travel. The act of using the street for such purposes is not, in itself, unlawful. The unlaw- fulness of the act consists in the unreasonable manner of its per- formance, producing unnecessary public inconvenience. These are the elements which give the character of wrong to the act otherwise right, and they must be proven, in order to establish the criminal offense. Indeed, it is not so much the improper manner of exercising the right which constitutes the criminal offense, as the inconvenience to the public which results from that manner. Judge Kuffin, in his opinion referred to supra, after stating the principle we quoted, in reference to permanent structures, drew the distinction between the two classes of cases, as follows: "But the very object of a highway is that it may be used; and, though travel be its primary use, it still may be put to other reasonable uses; and whether a particular use of it, which does not of itself amount to a nuisance, is reasonable or not, is a question of fact to be judged of by the jury accord- ing to the circvimstances of the case. Unlike the case of a per- manent obstruction just referred to, it is not the manner of using the highway which constitutes the nuisance, but the inconveni- ence to the public which proceeds from it; and, unless such in- convenience really be its consequence, there is no offense com- mitted." Nothing can better settle the principle than this emanation from so distinguished a judge. Our own adjudications support our conclusions: State v. Mayor, etc., of Mobile, 5 Port. (Ala.) 279; Hoole v. Attorney 462 Federal and State CeiMIXAL ItEPOiiTER, Vol, L General, 22 Ala. 190; City Council v. Wright, T2 Ala. 411; iWebb V. City of Demopolis, 95 Ala. 116; 13 South. 289. Tho following are also some of the many authorities upon the ques- tions here raised: Hart v. Mayor, etc., 9 "Wend. 571; 24 Am, Dec. 165; Eung v. Shoneberger, 2 Watts, 23; 26 Am. Dec. 95; Com. V. Wilkinson, 16 Pick. 175; 26' Am. Dec. 654; People v. Cunningham, 1 Denio, 524; 43 Am. Dec. 709; Johnson y. In- habitants of Whitefield, 18 Me. 286; 36 Am. Dec. 721; Graves V. Shattuck, 35 N. H. 257; 69 Am. Dec. 536; State v. Berdetta, 73 Ind. 185; 38 Am. Rep. 117 (a case of a fruit stand like the present); City of Alleghany v. Zimmerman, 95 Pa. St. 287; 40^ Am. Rep. 649; Eeimer's Appeal, 100 Pa. St. 182; 45 Am. Rep. 373; Bybee v. State, 94 Ind. 443; 48 Am. Rep. 175; Smith v. Simmons, 103 Pa. St. 32; 49 Am. Rep. 113; Callanan v. Gilman,. 107 IST. Y. 360; 14 K E. 264, and 1 Am. St. Rep. 831; Yates v. Town of Warrenton, 84 Ya. 337; 4 S. E. 818, and 10 Am. St. Rep. 860; Cohen t. Mayor, etc., 113 K Y. 532; 21 K E. 700, and 10 Am. St. Rep. 506, and note. Desty, in his work on Crimi- nal Law, states that front steps are part of the building, and, when they project, the building is in the highway, and such structure is a nuisance at common law; citing Com. v. Blaisdell, 107 Mass. 235; Hyde y. Middlesex Co., 2 Gray, 267. Also, a stall for the sale of fruits and confectioneries placed an a public footway is a nuisance, though rent be paid to the adjoining owner; citing- Com. V. Wentworth, 4 Clark (Pa.) 324. The fact that Costello's stand was erected on the covering of the open way to the cellar is of no importance. Com. v. Wilkin- son, supra. It is not contended that the city authorities have any general power to permit or license obstructions of streets, otherwise unlawful. See Webb v. City of Demopolis, supra; Cohen v. Mayor, etc., supra. The authorities generally are against such power. The charter of Birmingham does not con- fer it. Its provisions in regard to streets look to the betterment of the streets for the public purposes for which they were dedi- cated or acquired. They do not empower the city to permit the streets to be diverted from their public use to private purposes. Cakvek v. Ujs'ited States. 4:6iJ- by suffering individuals to obstruct and appropriate them. Such a thought was never in the legislative mind. We are of opinion the judgments of the criminal court were right, and they are affirmed. United States Supreme Court. riled January 13, 1896. CAEVEK V. UOTTED STATES. 1. Evidence— HoinciDE — Dying declaua-tion. In the admission of the declarations of the victini as to the facts of a homicide, the utmost caution must be exercised to the end that it be satisfactorily established that they were made under the impression of almost immediate dissolution. 2. Same. Omission to challenge evidence of dying declarations as not prop- erly in rebuttal may waive the mere order of proof, but does not. concede that the want of foundation can be excused for any reason. 8. Same— Objection. Such declaration is admissible if made while hope lingers, if it ia afterwards ratified when hope is gone, or if made when the person is without hope, though he afterwards regains confidence. 4. Same. The repetition of a dying declaration cannot itself be admitted as a reiteration of the alleged facts, if made when hope has becii regained. Appeal from judgment, convicting plaintiff in error of homi- cide. The fatal wound was inflicted by the discharge of a pistol on the night of March 25, 1895, at Muscogee, Creek ISTation, in the Indian country, but the death occurred at Et. Smith, Ark., Maj"- 19, 1895. In addition to other evidence, there was testimony to show that Carver and the deceased were attached to each other, that he was very drunk on the nia;ht of the homicide; and that he was in the habit of carrying a pistol, wbich he was flourishing at that time. A declaration in writing in respect of the circumstances 464 Federal and State Okiminal Reporter, Vol, L attendant upon the commission of tlie act, mdae by the deceased March 27, 1895, was admitted in evidence against objection as made under a sense of impending death. The testimony of the clerk of the court, "Wheeler, to the effect that the deceased, after she was brought to Ft. Smith, which was April 14, 1895, said that her former statement was true, was admitted, subject to an exception because no proper foundation was laid for its admission. Exceptions were also taken to certain parts of the charge. Wm. M. Cravens, for plaintiff in error. Asst. Atty, Gen. Dickinson, for defendant in error. Mr. Chief Justice FULLER, after stating the facts in the fore- going language, delivered the opinion of the court. While in the admission of the declarations of the victim as to the facts of a homicide the utmost caution must be exercised to the end that it be satisfactorily established that they were made under the impression of almost immediate dissolution, we think that the evidence of the state of mind of Anna Maledon in that particular, when the declaration of March 27, 1895, was made, and which we need not recapitulate, was sufficient to justify the circuit court in admitting it. Mattox v. U. S., 146 U. S. 140, 151; 13 Sup. Ct. 50. But the testimony of Wheeler stands on different ground, and we are of opinion should not have been admitted. In answer .to leading questions, the witness said that he saw Anna Maledon after she was brought to Ft. Smith; that he asked her whether the declaration of March 27, 1895, was true; and that she replied "it was, in every particular." The deceased received the fatal wound March 25th, and her statement of March 27, 1895, was admitted as a dying declara- tion. The interview with Wheeler was on or after April 14, 1895, and whether she then spoke under the admonition of her approaching end or anticipated recovery does not appear. It has been held that a declaration is admissible if made while hope lingers, if it is afterwards ratified when hope is gone (Eeg. Carver v. United States. 465 V. Steele, 12 Cox, Cr. Cas. 168), or if made when the person is witk- out hope, though afterwards he regains confidence (State v. Tilgh- inan, 11 Ired. 613; Swisher v. Com., 26 Grat. 963; 1 Greenl. iEv. [15th Ed.J § 158, note a). But the repetition of a dying declaration cannot itself be admitted as a reiteration of the alleged iacts if made when hope has been regained. Nor can we per- ■ceive that this is otherwise, because the record states that Wheeler was sworn "in rebuttal." Kebutting evidence is e^ddence in denial of some affirmative case or fact which defendant has attempted to prove. Our attention has been called to no attempt on behalf of defendant below to prove that Anna Maledon made on her deathbed, after her declaration of March 2Yth, any retrac- tion thereof, or any statement inconsistent with it, if evidence to that effect would have justified the introduction of this testimony as tending to rebut it. It is true that counsel for plaintiff in error rested their objec- tion on the ground that no foundation for the admission of the testimony was laid. But, while the omission to challenge the evi- dence as not properly in rebuttal may have waived the mere order of proof, this did not concede that the want of foundation could be excused for any reason. The contention was that the founda- tion must be laid, and that covered sufficiently every suggestion that the evidence was admissible without it. And as this was not legitimate rebutting testimony, it could not be admitted without the proper foundation, although the order of proof was waived. As we understand the record, a sharp controversy was raised over what deceased had said at the time of the homicide, and the evidence of Wheeler may have had so important a bearing that its admission must be regarded as prejudicial error. Whether the homicide was committed under such circum- stances as to reduce the grade of the crime from murder to man- slaughter, or as to permit an acquittal on the ground of misadven- ture, were questions raised in the case on behalf of plaintiff in error; and it is urged that the exception should be sixstained to the statement in the charge that, "if a man does not exercise the high- est possible care that he can exercise under the circumstances. Fed, Ckim. Kkp., Vol. I.— 59 466 Feuekal, and State Ckiminal Eepor'J'kk, Vol. L when handling firearms, his act passes out of that classification' known as an accident." But we do not feel called upon to con- sider this question, or any of the other errors assigned, as they may not arise on a new trial in the form in which they are now pre- sented. Judgment reversed, and cause remanded, with a direction to set aside the verdict and grant a new trial. District Court, D. Colorado. Filed December 26, 1895. UNITED STATES v. BEACH. PosT-OFPiCB — Mails — ScnEJrE to drfraud. ■ ..— ~-t Schemes and acts, named in section 5480 of the U. S. E. S., are of the kind which are gainful to the wrong doer, and no scheme or artifice which lacks this intent can be within the prohibition of the act. Henry V. Johnson, for the United States. Thomas Ward, for defendant. HALLETT, District Judge. — These Indictments are upon sec- tion 5480, Eev. St., as amended March 2, 1889 (25 Stat. 873), for using the mails for promoting a scheme and artifice to defraud. The charge is that the prisoner induced the prosecutor to go to- Salt Lake City, Utah, and to expend a considerable sum of money in making the journey, upon the false pretense that he could have employment as a nurse from one Perkins. Perkins was a mythical person, and there was no employment of any kind for the prosecutor in Salt Lake City. The point is made against the indictments that there was no motive of gain to the prisoner in making the false representations, and therefore the case is not within the statute. If we could solve the question upon any meaning of the word defraud, it would be diificult to say that "lucri causa" is an element of the offense. Eraud may be only United States v. J3each. 467 an artifice to deprive another of his right, without gain to the per- son practicing it. In the analogous case of cheating and swindl- ing, it is doubtful whether gain to the wrongdoer is an essential element; and in malicious mischief, which this case much re- sembles, there is no such element. Even in larceny, after much conflict of decision, it is still doubtful whether the taking must be lucri causa. 2 Bish. Cr. Law, § 842; 2 Whart. Cr. Law, § 1781. Since the full recognition of malicious mischief as a dis- tinct offense, it would seem that this intent ought to be of the essence of larceny. These considerations are not, however, con- trolling in the case at bar, for the reason that the statute defines the cases to which it is applicable. The cases mentioned in the statute are: "To sell, dispose of, loan, exchange, alter, give away, or distribute, supply, or furnish, or procure for unlawful use any counterfeit or spurious coin," etc., and "to obtain money by or through correspondence, by what is commonly called the 'sawdust swindle,' or 'counterfeit money fraud,' or by dealing or pretending to deal in what are commonly called 'green articles,' 'green coin,' 'bills,' 'paper goods,' 'spurious treasury notes,' 'United States goods,' 'green cigars,' or any other names or terms intended to be understood as relating to such counterfeit or spurious articles," etc. The words "give away," "distribute," "supply," etc., are obviously inserted to meet evasions of the act, — as where the wrongdoer proposes to sell a picture for a big price, and to give a quantity of spurious money as inducement to the purchase; or where, as in some cases that arose in this district, the wrongdoer offers a worthless town lot as a gift, and charges ten prices for putting the deed on record. The payment of money or something of value for the spurious coin or "green articles" is essential to the fraud in respect to which the mails are to be used, and, plainly enough, the person practicing the fraud is to receive the payment, whatever it may be. There is, therefore, in the offense defined in the statute, the element of loss to the person deceived, and also the element of gain to the offender. The statute is not limited to the particular deceits mentioned ia it, such as the "sawdust swindle" and the "counterfeit money 468 Fedekal and State Criminal Reporter, Vol. L fraud," for tlie first clause embraces "any sclienie or artifice to defraud;" buftliese words must be taken to mean any scheme or artifice of the general character of those specified in the act. The general language of the act must be limited to such schemes and artifices as are ejusdem generis with those named. Bish. St. Crimes, par. 245. "We have discovered that the schemes and artifices named in the act are of the kind which are gainful to the wrongdoer, and thereupon we must declare that no scheme or artifice which lacks this intent can be within the prohibition of the act. The conduct of the prisoner, charged in the indictment^ was abundantly harmful to the prosecutor, but it was not gain- ful to the prisoner, except in the matter of malice and ill will, of which he is not in need; but malice is not the intent specified in the statute. The indictments will be quashed. I Snpreme Court of Wisconsin, Filed January 7, 1896. J EMEEY et al. v. STATE. Criminal iatv — Reasonable doubt. A juryman, in a criminal case, must use all the reason, prudence and judgment wMcli a man would exercise in the most important affairs of life, and an instruction authorizing the use of any less degree of reason, prudence and judgment is erroneous. Same — Evidence. Where the plaintiff introduces evidence of a remark made by the defendant, the defendant may on his own behalf give the entire conversation, even though it may contain self serving statements. Same— Intent. When the intent or motive of a party in doing a particular act or making a declaration becomes material, it is permissible for the party to be sworn in regard to it. Same— Homicide — Malice. A defendant, who admits having made an incriminating threat, is entitled to show the circumstances under which, it was made. Emery et al. v. State. 469 the accompanying' conversation, if any, which, called it forth, and the information on which it was based. 5. SAitK — Pbeltaiinart examination— Witness. Section 4786 of the Eevised Statutes is directory only, and the examination of a sufficient number of witnesses to justify the m'ag- istrate in binding- over the defendant for trial will be held to satisfy the statute. 6. Same — Tkial— Summing up. Defendant's counsel cannot, at the close of the testimony on the part of the state and before the introduction of the evidence for the defense, review the testimony on the part of the state for the pur- pose of showing that it does not warrant a conviction. 1. Same — Inquest. The state may introduce, on the trial, only part of a statement made by defendant at the inquest, without introducing the whole of such statement. 8. Evidence— Admission. A remark by the sheriff to defendant, where the answer par- takes of the nature of an admission, is proper evidence against de- fendant, where it can only be understood in connection with the sheriff's remark to which it was a reply. Appeal from j-udgment convicting plaintiff in error of murder. Upon the trial of tlie case, it appeared without contradic- tion that Peter Houston, the deceased, while sitting in his own house, about twelve miles southeast of Grand Eapids, in Wood county, was shot by some person on the outside of the house. At the time of the homicide, Peter was seated near an open window, covered by mosquito netting. He was about twenty-one years of age, and his wife, Emma, whom he had married April 4, 1893, vv'as sitting at a table near her husband at the time of the shooting. Peter and his wife had just finished eating a light supper, and night was rapidly falling, it being somewhere between eight and nine o'clock, when a gun loaded with buckshot was discharged from some place outside of the house, and seven of the shot entered Peter's face and neck, causing instant death. The plain- tiffs in error, Emery and Lord, lived about one hundred rods straight east of Peter's house on the main road leading from Grand Eapids to Plainfield, which ran east of south. This road united with a road running past Peter Houston's house, about one and one-half miles north of Emery's and Lord's home, and 470 Fedekal and State Criminal Reporter, Yol. L the same distance from Peter's home. There was no road lead- ing directly across from Peter's house to the residence of Emery and Lord, but a little distance north there was a crossing between the two roads, making the distance between Peter's house and Emery's house, which could be traveled by vehicles, about three- fourths of a mile. Emery was at the time of the tragedy about forty years old, and with his wife and to boys, aged eight and ten years, respectively, lived upon and worked the farm of the plaintiff in error Lord. Lord was a widower, about sixty-two years old, and lived with Emery and his family. He had lived upon this place for upward of twenty-five years, while Emery had resided there and upon* an adjoining farm about eighteen years. Emma, the wife of the deceased, was the daughter of David Jacobs, who, at the time of the tragedy, lived about three miles north of the Houston and Emery residences, on the main road leading to Grand Eapids. There were no houses on the road between Jacobs' place and Peter's place, nor between Jacobs' place and the residence of the plaintiffs in error. The road run- ning south past Jacobs' hoiise divided into two roads about midway between Jacobs' place and Peter's place; one of said roads pass- ing in a southeasterly direction, past Emery's place, and the other in a southwesterly direction, past Peter's place. David Jacobs lived alone with his son, James, who was about twelve years of age, upon a rented farm, at the time of the tragedy. He had come into the community with his daughter, Emma, and son, James, in the summer of 1892. During the fall and winter of 1892, Jacobs and his family lived on the Emery farm, which was about a quarter of a mile south of the Lord residence, and there became acquainted with Lord and Emery, and visited back and forth. In the spring of 1893 they removed to the farm on ■tt'hich Jacobs was living at the time of the tragedy, called the "King Place." There was evidence tending to show that, while Enr.na was living with her father on the Emery place, she be- came criminally intimate with Lord. There was also evidence tending to show that David Jacobs had insisted upon having criminal intercourse with Emma since she was about fourteen Emery et al. v. State. 471 years of age. Tlie evidence further showed that Lord and Emery, on one side, and Peter Houston and his father, on the other side, had been on unfriendly terms for a long time, and that threats had been made on both sides. On the 4th day of April, 1893, Peter Houston and Emma Jacobs were married, and for •about four weeks after that time tey lived with her father upon the King place, under an arrangement by which they were to carry on the farm together. In the first part of May, however, trouble arose between Peter and his father-in-law, and Peter and his wife left the Jacobs place, and moved down to the small house where the murder was committed. This house was about thirty rods from the house of his father, William Houston, where lived "William Houston, his wife, and Peter's two brothers, and one sister. The land around Peter's house was uncultivated and unfenced, and had upon it scattering jack pine and scrub oak. The testi- mony tends to show that the difficulty between Peter and his father-in-law was that Peter found out or suspected the improper relations existing between his wife and her father. Whatever the difficulty was, they parted evidently with bad feelings on both sides. On the day after the murder, a coroner's inquest was held, at which the plaintiffs in error and said Jacobs were all sworn as witnesses, and all denied any knowledge of the crime. Near the side of Peter's house where the shot was fired, two gun wads were found, — one of pasteboard, and one of felt. The evi- dence tended to show that these wads were of the size used in loading cartridges for a breach-loading 12-gauge gun; and the sheriff having found such a gun in the possession of Emery, apparently recently discharged, and again loaded with buck- shot of the same kind with which Peter was shot, Emery was arrested, charged with the crime, and, having waived examina- tion, was committed to await trial. Lord was not arrested, but still continued to live upon his farm. David Jacobs and his son, James, after remaining upon the King place until the fall of 1893, removed to Vernon county, in this state. Emma Houston, wife of the deceased, went to live with her father-in-law. On the 8th day of March, 1894, Emma Houston made complaint be- 472 Federal and State Criminal Eeporter, Yol, L fore a court commissioner charging her father with having com- mitted the crime of rape upon her March 21, 1893, upon whicli compaint a warrant was issued, and David Jacobs was arrested in Vernon county, and confined in jail at Stevens Point, Portage county. During his confinement under this charge, he made a confession in which he stated that the murder of Peter Houston was committed by Emery, himself and Lord being present, aid- ing and assisting in the crime. Upon the making of this con- fession, he was taken before the circuit court then in session at Waupaca county, and pleaded guilty to the crime of murder of Peter Houston, and was sentenced to the state prison at Waupun for life. This was on the 14th of March, 1894; and, on the 16th of March following, William Houston made complaint before a justice of the peace charging Lord with the same crime ; and he was arrested, and examination thereafter had. He was bound over for trial to the circuit court. The plaintiffs in error were tried together at the October term, 1894, of the circuit court of Wood county. Jacobs was called as a witness, and gave direct evidence against them, in accordance with his previous confes- sion. The plaintiffs in error denied all complicity in or knowl- edge of the crime. There was circumstantial evidence and evidence of threats and ill will. A verdict of guilty was rendered. George L. Williams and Gr. W. Gate, for appellants. W. H. Mylrea, Atty. Gen., and George R. Gardner, for the state. WINSLOW, J. (after stating the facts).— There was suffi- cient evidence to sustain the verdict, and the trial seems to have been in most respects fair and just, but there were two rulings made which, we think, were erroneous, and which necessitate reversal of the judgment. 1. The circuit judge charged the j\iry on the subject of reason- able doubt as follows: "All men are presumed to be innocent of Emery et al v. State. 473 crime. No man can rightfully be conTicted of crime until the legal presumption of innocence just mentioned shall have been overcome, and his guilt affirmatively proven beyond a reason- able doubt. Such proof of guilt can be made only by the evi- dence given or received on the trial of the case, and must be, in the judgment of the jury, the just and reasonable logic and effect of the whole evidence. The 'reasonable doubt' mentioned be- yond which must be affirmatively proved in order to justify a verdict of guilty means, as its name implies, a doubt resting in reason; and it must arise from the whole evidence fairly and rationally considered. When, after a full and impartial con- sideration of the whole evidence considered within the rules already stated, the judgment is convinced to a moral cer- tainty that the accused is guilty that there is no reasonable explanation of the facts proven except upon the hypothesis that the accused committed the crime charged, then evey reasonable doubt is removed, and a verdict of guilty should follow. Mere fanciful or speculative doubt, — such as a skeptical mind may suggest in any case, — however strong and convincing that the accused is guilty the evidence, as a whole, may be to a reasonable and impartial mind, does not amount to a 'reasonable doubt,' within the meaning of the law. A doubt such as this — one that ignores a reasonable construction of the whole evidence, pro- ceeds upon mere speculation or suspicion — is unreasonable; would acquit one proven guilty as easily as one not so proven; and does not justify a verdict of not guilty." So far the charge is unexcep- tionable. The judge then proceeded, however, as follows : "On the other hand, when, upon the whole evidence, the jiidgment and conscience are not convinced of guilt in a degree or to an extent such as would lead a careful and prudent man to act affirmatively in important matters of his own, when the jury feel that upon the whole evidence, ratinually considered, guilt is not satisfactorily proven, such feeling amounts to a reasonable doubt of guilt, and in such case the defendants will be entitled to a verdict of not guilty." This latter proposition qualifies all that goes before it on that subject, and it is in direct conflict with the Ted. Cbim. Rep., Vol. I.— 60 474 Federal and State Criminal Eeporter, Vol. L rule of law as laid down by this court in tlie case of Anderson r. State, 41 Wis. 430. It was there held that the jury should be ■charged that they must scrutinize the evidence with the utmost caution and care, bringing to that duty the reason and prudence which they would exercise in the most important affairs of life, — in fact, all the judgment, caution, and discrimination they possessed; and if, after such scrutiny, they entertained no reason- able doubt of the guilt of the accused, they should convict; other- wise, acquit. An instruction in that case which gave to the jury as a guide "that prudence and reason which govern you in the •ordinary conduct of your affairs" was distinctly condemned, and the judgment was reversed upon that ground alone. The rule laid down in that case has not been departed from nor qualified since. It is squarely applicable to the present case, and it necessitates a reversal of the judgment. It is unneces- sary to discuss the reasons of the rule. We are aware that courts in some of the states hold to a different rule, but in this state it has been deliberately declared that a juryman in a criminal case must use all the reason, prudence, and judgment which a man would exercise in the most important affairs of life, and that an instruction authorizing the use of any less degree of reason, pru- dence, and judgment is erroneous. In support of this rule, see, also, State v. Dineen, 10 Minn. 407 (Gil. 325) ; Com. v. Miller, 139 Pa. St. 77; 21 Atl. 138. 2. Witnesses were called by the prosecution, who testified to having heard the defendant Emery, during the winter before the homicide, remark that if he met Peter Houston in the woods, and they both had guns, he would see that Peter did not get the first shot. When Emery was put upon the stand in his own be- half, he admitted that he might have made such a remark, and was then asked what was the occasion of his making it. This question was objected to, and the objection sustained, and excep- tion taken. The follow colloquy then took place: "Q. Why do you say you may have said that? (Objected to as before. Overruled.) The Court: You need not tell anything you heard previous to that, if you did hear anything. Ans. Because I Emeky et al v. State. 475 tniglit have said it. Q. If you are limited to not giving the con- versation, you cannot give it in any other way? Ans. No, sir." It is very apparent that the court, by these rulings, excluded every- thing else that was said by either Emery or other at the time of the making of the threatening remark, as well as excluded every- thing that had come to Emery's knowledge which prompted him to make it. That the balance of the conversation was admissible there can be no doubt. Where the plaintiff introduces evidence of a remark made by the defendant, the defendant may unques- tionably on his own behalf give the entire conversation, even though it may contain self-serving statements. Manufacturing Co. V. Frawley, 68 Wis. 577; 32 K W. 768; 1 Greenl. Ev. § 201. The evidence of the threat was introduced by the state to show the state of the defendant's mind, to show that he had malice in his heart against the deceased, and hence that he had a motive to kill him; in short, it was to show intent. Now, when the intent or motive of a party in doing a particular act or making a declara- tion becomes material, it is always permissible for the party to be sworn in regard to it. 3 Eice, Ev. § 288. The defendant •could therefore have testified directly as to his intent or feeling towards the deceased when he made the remark, and we think he was also entitled to show what was the occasion of his making it, and the reason that prompted it, even though such reason might involve the introduction of testimony which would otherwise be hearsay. Certain it is to our minds that a defendant who admits having made an incriminating threat is entitled to show the cir- cumstances under which it was made, the accompanying con- versation, if any, which called it forth, and the information on which it was based. There are numerous other assignments of error made 'on the part of the plaintiffs in error. We have carefully examined them, and do not find them to be well taken. We shall now briefiy notice some of the more important of these contentions. (1) There was a plea in abatement made by the defendant I/Ord to the effect that he had had no preliminary examination. T£}As plea was based on the grounds — Eirst, that the complain- 476 Federal and State Criminal Reporter, Vol. L ing witness was not sworn on the examination; second, tliat all of the witnesses for the state were not sworn; third, that the de- fendants were deprived of the testimony of a material and import- ant witness named James Jacobs, upon such examination, by the acts and direction of the district attorney of Wood county. This plea seems to have been tried upon affidavits and on the justice's record. Eev. St. § 4786, provides that the magistrate holding a preliminary examination shall "examine the complainant and the witnesses to support the prosecution on oath in the presence of the party charged." It is claimed by the plaintiffs in errei* that this statute is mandatory, and that, unless the complaining witness and all the witnesses known to the state are examined, no legal preliminary examination is had. It is sufficient to say that we cannot agree with this contention. We regard the statute as directory only. A sufficient number of witnesses were ex- amined to amply justify the magistrate in binding over Lord for trial, and this must be held to satisfy the statute. Such was the holding in Michigan under a similar statute. People v. Curtis, 54 ]Sr. W. 767. As to the claim that the defendants were de- prived of the testimony of James Jacobs by the acts and direc- tions of the district attorney of Wood county, it is sufficient to say that the fact was not proven. (2) At the close of the testimony on the part of the state, and before the introduction of the evidence for the defense, the de- fendants' counsel claimed the right to review the testimony on the part of the state for the purpose of showing that it did not warrant a conviction. Upon objection, the court ruled that, in opening the defense, he could only comment on the testimony already in, so far as it might be necessary to show the relevancy of the testimony which he expected to introduce. This was plainly right, and is in acordance with the established practice within this state. It is no infringement on the constitutional privilege of being heard by counsel. It is simply a rule which, manifestly, is conducive to the orderly and logical mode of con- ducting a trial by which the arguments upon the merits are all to Wendell v. State. 4.77 be made after the testimony is in and all the facts are before the jury. " (3) The state was allowed to introduce certain parts of the statements under oath made by the defendant Emery at the in- quest, it being objected by the defendant that the state must intro- duce the whole of the testimony or none. This was not error. The point was directly decided in Eounds v. State, 57 Wis. 45; 14 N. W. 865. The defendant was entitled to introduce in evi- dence the remainder of the statement, and did do so. (4) The state was allowed to prove a conversation between Emery and the sheriff on the day of Emery's arrest, in which the sheriff said to Emery, "I am satisfied in my own mind that your gun did the shooting," to which Emery replied, "It looks so, don't it?" It is objected that this evidence was inadmissible, as its effect was to introduce the opinion of the sheriff as to whose gun did the shooting. We do not regard the objection as tenable. The answer of Emery partook of the nature of an admission, hence was proper evidence against him ; but it could only be understood in connection with the sheriff's remark to which it was a reply. We do not deem it necessary to notice any other points made. Judgment is reversed as to each plaintiff in error, and the cause is remanded to the circuit court for new trial. The warden of the state prison will deliver the plaintiffs in error to the sheriff of Wood county, who will hold them in custody until discharged therefrom by due process of law. Supreme Court of Nebraska. Filed January 21, 1896. WENDELL V. STATE. CkIMINAL law — JorPTDBTl. Under section 54 of the Criminal Code, it was erroneous, over proper objections, to try a defendant upon the charge of burning' a schoolhouse, joined with one for causing such burning to be done by another person. 478 FfiDERAIi AND StATE CRIMINAL EePORTER, VoL. I. Appeal from a judgment convicting plaintiff in error of causing the burning of a school-house. C. J. Dilworth and J. L. McPheely, for plaintiff in error. A. S. Churchill, Atty. Gen., and George A. Day, Dep. Atty. Gen., for the state. EYAiN", C. — Plaintiff in error was tried in the district court of Kearney county upon an information containing three counts, and found guilty upon the second count. Omitting such matters as are not essential to the understanding of the questions pre- sented, these counts were as follows: First Count: "That on the 2d day of April, in the year of our Lord one thousand eight hundred and ninety-five, one Peter Wendell, then and there be- ing, * * * did then and there unlawfully, willfully, and maliciously and feloniously procure, incite, and cause one Ben Pearson, then and there being, unlawfully, willfully, maliciously, and feloniously to set fire to and burn oue schoolhouse," etc. Second count: "* * * That on the 2d day of April, A. D. 1895, one Ben Pearson, * * * then and there, unlawfully, willfully, maliciously, and feloniously set fire to and burn one schoolhouse; * * * and that Peter Wendell, then and there being, did, before and at the time of said burning, unlawfully, willfully, maliciously, and feloniously * * * procure, in- cite, aid, abet, and cause the said Ben Pearson to set fire to and bum said schoolhouse," etc. Third count: "That on the 2d day of April, in the year of our Lord one thousand eight hundred and ninety-five, Ben Pearson * * * did, then and there, unlaw- fully, willfully, maliciously, and feloniously set fire to and burn one schoolhouse there situated, * * * and that one Peter Wendell, then and there being in said county and state afore- said, then and there did hire and cause said Ben Pearson to set fire to and burn said schoolhouse, in the manner and form afore- said," etc. In the second count there is charged that Ben Pearson was guilty of the crime of arson, and that he was feloniously thereto instigated by the plaintiff in error. In this respect the Wendkll v. State, iTd tlirce counts are alike. In the second count, wliicli was that on which Wendell was found guilty, and which, therefore, is. specially essential in this case, there was contained the charge that Wendell not only procured, incited, abetted, and caused Pearson to do the burning, but it was as well charged that Wen- dell aided Pearson in the act. The conviction was under section 54 of the Criminal Code,.' in which it is provided that, "if any person shall willfully and maliciously burn or caused to be burned any dwelling house," etc., "every person so offending shall be deemed guilty of arson^ and shall be imprisoned in the penitentiary not more than twenty years, nor less than one year." The instructions given by the court Avere evidently framed upon the theory that in the second count of the information there was charged but one offense, for in the second instruction given by the court was contained this language: "In this case the substan- tive offense charged is the willful, unlawful, and felonious setting lire to saidschoolhouse,in said county of Kearney and state of Ne- braska, on or about the time alleged in the information; and, as hereinbefore stated, the defendant might have committed the same, if such offense was committed, by personally setting fire to- and burning said schoolhouse, or by causing or procuring another unlawfully to do it, or by aiding, assisting, or abetting such other person in such unlawful burning. The state has seen fit to charge the defendant in this case with such burning in each of the ways- above set out. This it may lawfully do." The fourth instruc- tion was in the same line as the second, while in the sixth occurs this language: "The court instructs the jury that if you be- lieve from the evidence in this case, beyond a reasonable doubt, that the defendant, either personally, unlawfully, and willfully,. burned the schoolhouse by setting fire thereto, or thrt he caused or procured another to imlawfully and willfiilly set fire to said schoolhouse, or, knowing that another intended to unlawfully and ;felonIously set fire to said schoolhouse, and burn the same, aided, abetted, or assisted such person in the commission of said offense in said county and state^ * * * in either case said person 480 Federal and State Ceiminal Eepoetee, Vol. L would be guilty and liable as a principal of the unlawful and felonious burning of said scboolliouse." By these instructions there is presented the question whether or not two distinct offenses were charged in the count of the infor- mation upon which the plaintiff in error was found guilty. The court assumed that there was charged but one offense. Counsel for the plaintiff in error insists that there were two, each distinct from the other; and there has been no failure properly to pre- serve that question upon the record. No case has been called to our attention in which is considered the language of a statute similar to the one above quoted. It seems to us, however, that this differs from a case wherein is charged burglary and larceny in conjunction, for in such case the larceny is but the consumma- tion of the intent with which the burglary is committed. Again it is said in section 449, 1 Bish. Cr. Proc. (3d Ed.): "If the pleader is uncertain whether the transactions will appear in the proofs to be embezzlement or larceny, and both are felonies, he may have a count or counts for each. Under like circumstances, counts may be joined for embezzlement and false pretenses." It does not seem to us that any of these considerations justify the joinder of the offense of aiding in burning a house with that of hiring, causing, or procuring another to commit such arson. The proof that Pearson set fire to the schoolhouse described in no way tended to connect Wendell with the offense of causing Pearson to commit this crime. Proof that "Wendell aided Pearson is? direct evidence of his participation in .the offense of Pearson. Proof that Wendell instigated Pearson is evidence only that he in some measure was responsible for the formation of a felonious intent by Pearson, but this intent, if never carried into effect, constituted no dirime. If however, the fruition of this intent , was the consummation of the crime urged upon Pearson by Wen- dell, then Wendell became liable for the part which he had taken in the origination of Pearson's felonious intent, and must answer accordingly. It is possible that, by statute, the promoter of the arson might be made liable for its commission; but, in our view, Argabright v. State. 481 section 54 of the Criminal Code is not so framed as to express sucli an intention on the part of the legislature. The judgment of the district court is reversed. Supreme Court of Nebraska. Filed January 21, 1896. AEGABRIGHT v. STATE. Reporters— Transcript. An order will not be made in this court requiring a reporter of the district court to prepare a transcript of evidence preliminary to the settlement of a bill of exceptions, when the record discloses that a like order had been made by the proper district judge upon the precedent condition that the reporter's legal fees should first be paid, there being shown neither a compliance with such order nor an attempt to review it. Appeal from a judgment convicting the plaintiff in error of felony. W. H. Kelligar and John S. StuU, for the motion. E. O. Kretsinger, opposed. EYAN, C. — The plaintiff in error has applied to this court for an order to compel the reporter of the first judicial district of this state to furnish a transcript of the evidence upon which this cause was tried. We find in the record that, upon an application to Hon. A. H. Babcock, the district judge who presided at said trial, for an order requiring that said evidence be extended with- out payment, on account of the poverty of the plaintiff in error, said order was refused; but that, in that connection, it was found that the said reporter, as a condition precedent to making the transcript required of him, had demanded from one of the attorneys of plaintiff in error his fees for making such transcript, Fed. CniM. Eep., Vol. 1—61 482 Federal and State CiiimiNAL Eei'Okteb, Yol. I but that sucli payment liad been refused. It was ordered, bow- ever, that said reporter furnish the required bill of exceptions upon the tender to him of his legal fees for such services. As there has been no attempt to review or comply with this order, plaintiff in error is not entitled to the order asked of the court. Accordingly, it is denied. Judgment accordingly. Supreme Court of Nebraska. Piled January 83, 1896. HASKINS V. STATE. . 1. Ckiminal law— Instrtjction. It is error to give an instruction infringing on the province of the jury. 2. Same. An instruction in a criminal case is erroneous which has the effect to shift the burden of proof from the state to the accused. Appeal from a judgment convicting plaintiff in error of larceny. J. G. Thompson and McClure & Anderson, for plaintiff in error. A. S. Churchill, Atty. Gen., George A. Day, Dep. Atty. Gen., and John E. Fults, for the state. ISrOEVAL, J. — The plaintiff in error, Pred "W. Haskins, was tried in the court below upon an information filed by the county, attorney, containing two counts, the first charging him with horse stealing, and the second charging him with grand larceny by stealing a certain buggy, harness, and other personal property o£ the prosecuting witness. The accused, on being convicted of both offenses, was sentenced to imprisoament in the penitentiary, Haskins v. State. 483 for the term of two years, and to reverse sucli judgment and sentence is the purpose of these proceedings. The crimes charged, if committed at all, occurred at the same time, and as a part of the same transaction. The testimony embodied in the bill of exceptions, which was introduced on behalf of the state, tends to show: That the plaintiff in error hired, for the period of three weeks, a team of horses, harness, and buggy, — being a portion of the property he was charged with stealing, — from the prosecuting witness, for the alleged purpose of going from Ox- ford, this state, to Gretna, to bale some hay. The property was not returned to the owner within that time, and a search was instituted therefor. That plaintiff in error, instead of taking the outfit to Gretna went to Lincoln with it, where he attempted to dispose of the same, and did sell the harness to one J. H. Philpot for the sum of six dollars. The horses and buggy were found at a livery stable in the capital city. The defendant below intro- duced evidence tending to prove that the prosecuting witness, at the time of the hiring, authorized the accused to sell or trade the property, if he found an opportunity so to do. A further statement of the testimony is unnecessary to an understanding of the questions we shall consider. Forty-nine errors are assigned upon this record, but we shall only notice two, which are predicated upon the fifth and sixth instructions given by the court upon its own motion. These in- structions are as follows: "(5) If you find from the evidence that after the taking of the property by the defendant from the complaining witness, Henry Glahn, that he sold such property, or any part of it, or attempted to sell the same, or any part of it, with the intention of appropriating the proceeds thereof- to his own individual use and benefit, this is presumptive evidence that the original taking of the goods was felonious; and, unless such sales or attempted sales are satisfactorily explained, you should find the defendant guilty. (6) The court instructs the jury that if they find that Henry Glahn, the prosecuting witness, parted with the possession of the property described in the information under the belief on his part that he was loaning such property 484: Federal and State Criminal Eeporter, Vol. L to the defendant for a certain length of time, it is not necessary that such time should elapse before taking steps to regain posses- sion of the same, and it is immaterial, as far as the crime charged in the information is concerned, what the length of said time was. But if, at any time after the taking of said property by the de- fendant, either before or after the expiration of the time under- stood by the said Henry Glahn in which said property was to be returned, the defendant sold, or attempted to sell, said property, or any part of the same ,with the intention of appropriating the proceeds thereof to his own individual use and benefit, then the crime charged in the information is sufficiently proven; and, unless the defendant satisfactorily explains such sales or at- tempted sales, you should find the defendant guilty." Obvi- ously, both of these instructions are bad. The fifth is so con- ceded by the attorney general, and for that reason he has pro- perly declined to filp a brief. By these paragraphs of the charge the jury are told that if the accused sold, or attempted to sell, the property, or any portion thereof, with the intent to appropriate the proceeds, they should infer therefrom that the original tak- ing was felonious, and should convict, unless the sales or attempt- ed sales were satisfactorily explained by the defendant. This is not the law, for two reasons. The effect to be given to the sale or attempted disposition of the property was for the jury to de- termine, when considered in connection with all the other evi- dence adduced on the trial; hence the instructions invaded the province of the jury. Moreover, during the entire progress of the trial, the law surrounds the defendant with the presumption of innocence, and requires the prosecution to establish his guilt beyond a reasonable doubt. Yet these two instructions shifted the burden of proof from the state to the accused, by requiring him to overcome the presumption of guilt which the trial court told the jury arose from the sale or attempted disposal of the property. In a criminal trial the burden of proof does not shift, but is on the state at all stages of the trial. The instrac- tions were therefore erroneous, and prejudicial to the prisoner. Burger v. State, 34 JSTeb. 39 Y; 51 K W. 102Y; Eobb v. State, Maynard v. Eaton. 485 35 ITeb. 285; 53 N. W. 134; Dobson v. State, 46 Neb. 250; 64 N. W. 956; Metz v. State, 46 JSTeb. 54Y; 65 K "W. 190. For errors indicated in tbese instructions, the judgment is reversed, and the cause remanded for further proceedings. Reversed and remanded. Supreme Court of Michigan. Filed January 16, 1896. I MAYNAED, Prosecuting Attorney, v. EATON, Circuit Judge. 1. Excise — Dbuqgist. "" A druggist who has complied with the law by filing a bond, while he may be guilty of an offense, is not guilty of an offense in keep- ing his drug store. 2. Same — Indictment. If it is sought to charge him with a violation of the law in unlaw- ful selling, the offense should be specified in such manner that the accused may know what he is called upon to meet. Proceeding for a writ of mandamus. Horace S. Maynard, in pro. per. John M. Corbin, for respondent, Clement Smith, circuit judge. MONTGOMERY, J.— Relator ffled an information against one Frank Brainerd, in which he charged said Brainerd with a violation of section 2283a, 3 How. Ann. St., in keeping a drug store, and alleged that he was not then engaged in keeping such place as a druggist or registered pharmacist, and not so keeping such place under and in compliance with the restrictions and re- quirements imposed upon druggists and registered pharmacists by the general laws of this state. It appears from the petition and return that the prosecution relied for conviction upon the proof of a single unlawful sale, and the question is whether, under 486 Federal and State Criminal Eeporteb, Yol, L such information, a conviction would be justified upon this prooL We are not dealing with a case in which a party claiming to be a druggist has failed wholly to comply with the law by filing a bond, but the question is whether one who has in this respect complied with the law may be convicted of unlawfully keeping a place by proof of an unlawful sale. "We held in Bishopp v. Lane, 94 Mich. 461; 53 N. W. 1093, that a druggist might properly be informed against under this section for selling liquor, if the in- formation negatives the terms of the exception. It was there said that this section does not exempt druggists from the pro- visions of the act, but only exempts such as sell under and in ac- cordance with the restrictions imposed upon them by the laws of ' the state. See, also. People v. Murphy, 93 Mich. 41; 52 IST. "W". 1042. These cases were, however, cases of unlawful sale, and in each case the information fully apprised the accused of the nature of the offense charged. It is clear that a druggist cannot sell liquor as a beverage, or without complying with the statutory reg- ulations, and escape responsibility for his act by claiming that he is within the exceptions of the statute; but the question here is, what is the offense charged, and what is the offense which the druggist who has complied with the law by filing his bond com- mits when he makes a sale unlawfully? "We do not intimate that one who is a druggist, and who has failed to file his bond, may not be prosecuted under this section, as in such case it would seem to be an offense for him to keep a place where liquors are sold or kept for sale. But a druggist who has complied with the law in this respect is not guilty of an offense in keeping a place where liquors are sold or kept for sale; and, however we may disguise it, a charge of this nature, based upon proofs of a single sale, is an attempt to charge a distinct offense of an invalid and unlawful sale, and this under general language, which gives the accused no information of the precise offense which it is the intention of the proseciitor to prove. If the contention of the prosecutor ia sound, then, under such an information, any — the slightest — ■ infraction of the regulations relating to druggists would render the druggist liable for keeping a place prohibited by statute. We Nichols v. State. 487 think this is not the legislative intent, but that a druggist who has complied with the law by filing a bond, while he may be guilty of an offense, is not guilty of an offense in keeping his drug store; and that, if it is sought to charge him with a violation of the law in unlawfully selling, it is not a hardship to require that the offense be specified in such manner that the accused may know what he is called upon to meet. These views agree with those of the circuit judge, and it follows that the application for a mandamus should be denied. McGEATH, 0. J., took no part in the decision. The other justices concurred. Supreme Court of Nelbraska. Filed January 9, 1896. NICHOLS V. STATE. 1, Banes— Debtor and creditor. The law presumes that the relation existing between a bank and its customer is that of ordinary debtor and creditor. 3. Same— Deposit. -"' Whether a deposit made in a bank by its customers is a general or special one is a question of fact to be determined from the in- tention of the parties, but, in the absence of evidence, the law pre- sumes such a deposit a general one. 8. Same — Prkshmption. Where a customer of a bank, who has overdrawn, and thus stands indebted in open account to the bank, makes a general deposit therein, the presumption of law is that such deposit was made and received towards the payment of Such overdraft. 4. Same— Insolvent. The object of the enactment of sections 637, 638, Comp. St. 1895, was to prevent an insolvent banking association from borrowing TQoney, — that is, receiving money on deposit, and becoming debtor therefor; but said sections should not be so construed as to render an officer of a banking association guilty of a felony for permitting 488 Federal and State Criminal Reporter, Yol. L a debtor of the association to pay his debt thereto, even though the association is at the time, to the officer's knowledge, insolvent. 6. Saue. N. was indicted for receiving a deposit in a bank of which he was cashier, knowing at that time the bank was insolvent. The state, to sustain the indictment, offered evidence which tended to show the existence of the bank; that N. was its cashier; that it was in- solvent, to his knowledge, on the 18th of February, 1895; and that on said date one M. deposited in said bank $11. N. then offered to prove that when M. made such deposit he was overdrawn at the bank $15.30. The court excluded the offer. Held, that the evi- dence offered tended to show that the deposit made by M. and accepted by N. was intended by thS parties to apply towards the payment of M.'s debt to the bank; and that, so long as N. remained lawfully in charge of the bank as its cashier, he had the right to accept money in payment of any debt owing by any person to the bank; and that, therefore, the court erred in excluding the evi- dence offered. Appeal from a judgment convicting plaintiff in error of receiv- ing a deposit in a bank knowing of its insolvency. H, M. Sullivan and Wall & Burrows, for plaintiff in error. A. S. Churchill, Atty. Gen., George A. Day, Dep. Atty. Gen., and Long & Matthew, for the state. EAGAN, C. — In the district court of Sherman county Albert T. Nichols was convicted of the crime of receiving a deposit in a bank of which he was cashier, the bank then and there being, to his knowledge, insolvent; and sentenced to a term in the peni- teniary. He brings the judgment of the district court here for review. There are numerous errors assigned and argued here for the reversal of this judgment, of which we shall notice only one. Section 22, c. 8, Comp. St., provides: "ISTo bank, cor- poration, partnership, firm, (5r individual transacting a banking business in this state shall accept or receive on deposit for any purpose money, bank bills, U. S. treasury notes, or currency or other notes, bills, checks, drafts, credits, or currency when such bank, corporation, partnership, firm, or individual is insolvent." And section 23 provides: "If any bank, corporation, partner- Nichols v. State. 48& ship, firm, or individual transacting a banking business in this state shall receive or accept on deposit any such deposits as are named and set forth in section twenty-two (22) when said bank, corporation, partnership, firm or individual is insolvent any offi- cer, director, cashier, manager, member of the partnership or firm, individual or managing party thereof, who shall knowingly receive or accept, be accessory to, or permit or connive at the receiving or accepting on deposit therein or thereby such deposit* as aforesaid, shall be guilty of a felony," etc. The information charged that Nichols, being the cashier of the People's State Bank of Litchfield, a banking corporation organized under the laws of the state and doing business in said Sherman county, on the 18th day of February, 1895, received a money deposit of eleven dollars from one Henry Miller, the said People's State Bank of Litchfield being then and there, to the knowledge of the said Nichols, insolvent. On the trail the state produced evi- dence showing the existence of the banking corporation, that Nichols was cashier thereof, and that on the 18th of February, 1895, one Henry Miller made a general deposit in said bank of the sum of eleven dollars; and that the state also offered evidence which tended to show that the said bank was at that date, to the knowledge of the said Nichols, insolvent. The record contains the follo^ving: "July 13, 1895, 8 o'clock a. m. Argument to jury about to be commenced by County Attorney J. "W. Long for the prosecution. Defendant here asks leave to withdraw his rest, and to put on the witness stand O. S. McCurrie, by whom he can show that on the 16th day of February, 1895, the account of Henry Miller, the prosecuting witness herein, in the People's State Bank of Litchfield, Nebraska, was overdrawn fifteen dol- lars and thirty cents ($15.30), and that no deposit was made by him on the I7th;' and that the first deposit made or money brought in to the bank by him after the 16th was the eleven dollars charged in the information in this case; and at the time it was brought in the said Henry Miller was overdrawn in hia account with said bank in the sum of fifteen dollars and thirty ($15.30) cents. The counsel for the state object as immaterial, Ted. Ckim. Rep., Vol. 1—62 490 Federal and State CBiMiifAL Eeposteb, Vol. I. irrelevent, incompetent, and too late at this time. The Court: The request is denied, for the reason that the fact sought to be shown is immaterial, irrelevent, incompetent, and not because it is too late. Defendant excepts." The evidence shows that Miller was a customer of the bank, and, this being so, the relation which the law presumes existed between them was that of debtor and creditor. Marine Bank -V. Fulton Bank, 2 Wall. 252; Thompson v. Eiggs, 5 Wall. 663; Bank v. Millard, 10 Wall. 152. The evidence tends to show that the deposit made by Miller on the 18th was a general one. Whether the deposit was a general or special one was, of course, a question of fact to be determined from the intention of the parties, but a deposit is presumed to be a general one, in the .absence of evidence to the contrary. Brahm v. Adkins, 77 111. 263; In re Franklin Bank, 1 Paige, 249; 1 Morse, Banks, § 186. Since the relation existing between Miller and the bank was that of debtor and creditor, and since the offer was to show that Miller was overdrawn at the bank — that is, that he was indebted to the bank in open account — in the sum of fifteen dollars and thirty -cents when he made the deposit of eleven dollars on the 18th of February, the presumption of law is, in the absence of evidence to the contrary, that he made this deposit in payment, so far as it wouldreach,ofhisdebtoroverdraftatthebank. Hansen v. Kirtly, 11 Iowa, 565 ; Poucher v. Scott, 98 IST. Y. 422. If the bank, on the ■date that Miller made his deposit, was insolvent, and if Nichols knew that fact, yet, so long as he remained lawfully in charge of the bank, he had the right, as its cashier, to accept money in paymenf of any debt owing by any person to the bank. At least, by so doing he did not violate the statute just quoted. The de- posit made by Miller in the bank on the 18th was in the nature of a loan to the bank. State v. Keim, 8 Neb. 63 ; Bank v. Gandy, 11 Neb. 431; 9 K W. 566; State v. Bartley, 39 Neb. 353; 58 N. W. 172. And, had Miller not been indebted to the bank in ti sum equal to the deposit he made, then Nichols, knowing the insolvent condition of the bank, and taking the deposit, would doubtless have violated the statute; for the very object of this Eauschkolb v. State. 491 eractment was to prevent an insolvent banking association from borrowing money, — that is, receiving money on deposit and becoming a debtor to a depositor therefor. But we do not think that the act should be so construed as to make an officer of a bank- ing association guilty of a felony for permitting a debtor of the association to pay his debt thereto, even though the association is at the time, to the officer's knowledge, insolvent. To give it this .construction is to obey the letter of the law and to violate its spirit. Under the evidence in the record and that offered by Nichols and excluded by the court, the eleven dollars received by Nichols from Miller on the 18th of Eebruary, and put to ililler's credit on the books of the bank, was not an acceptance by Nichols, as cashier, of that amount of money, to be held on deposit for Miller, within the meaning of the statute quoted, but was an acceptance of that amount of money by Nichols from Miller in payment of the latter's debt in open account to the bank. The district court erred in excluding the evidence offered. Its judgment is reversed, and the cause remanded, with instruo- tions to grant Nichols a new trial. Reversed and remanded. Supreme Court of Nebraska. Filed January 9, 1896. EAUSCHKOLB et al., v. STATE. 1.' Information — Indorsembnt of names. In the discretion of the trial court, the names of additional wit- nessess may be indorsed by the county attorney on the informa- tion after the filing thereof, and before the trial. 3. Same — Continttance. In such case, however, where a request is made to postpone the the trial for twenty-four hours, to enable the defendant to meet the testimony expected to be given by the person whose name is 492 Federal and State Cbiminal Eeporter, Vol. L so indorsed, it is an abuse of discretion to deny such request, if such witness is examined on the trial, and gives material testimony for the state, in making out its case in chief. Appeal from a judgment convicting plaintiffs in error for keep- ing intoxicating liquors for sale without a license. John S. Stull and C. P. Edwards, for plaintiffs in error. A. S. Churchill, Atty. Gen., George A. Day, Dep. Atty. Gen.,' for the state. INTORVAL, J. — This is a prosecution brought under section 20, c. 50, of the Compiled Statutes of this state, for keeping and having in possession for sale, without a license, certain intoxi- cating liquors. The prisoners were found guilty, and the judg- ment rendered against them upon the verdict is before us for re- view. The record discloses that the case was continued from term to term until the 20th day of March, 1894, when, upon a showing made by the county attorney, permission was given, over the objection of defendants, to indorse upon the informa- tion the name of Levi Shores. An exception to the ruling was taken, and the defendants thereupon, by reason of said indorse- ment, asked that they be given twenty-four hours in which to prepare for trial. This the court refused, but arraigned the de- fendants at once, and forthwith impaneled a jury to try the case, and on the same day a verdict of guilty was returned. The per- mitting the county attorney to indorse the name of the witness on the information, and refusing defendants' request to postpone the trial, are assigned for error. Section 579 of the Criminal Code provides that the prosecut- ing attorney shall indorse on the information the names of the witnesses known to him at the time of filing the same; and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall indorse thereon the names o£ such other witnesses as shall then be known to him. In the casa under consideration, it appears from the affidavit of the county attorney that he was not such officer when the information was, Eausohkolb v. State. 493 filed, and that he had no means of knowing that Levi Shores could give material testimony until the time the application was made to indorse his name. The statute gives authority to in- dorse upon an information the names of additional witnesses after the filing thereof, and before the trial. It is discretionary with the trial court whether such permission shall be given or refused, and its ruling in that regard is no ground for disturbing the verdict where no abuse of discretion is made to appear. Upon the showing made, we think the discretion of the court was prop- erly exercised in authorizing the name of the witness to be in- dorsed on the information. The denial of the defendants' request for a postponement of the trial is fraught with more serious consequences. It was the duty of the trial court, in allowing the indorsement of the name of an additional witness on an information, to protect the rights of the accused; and where a reasonable request is made to delay the hearing, in order that the defendant may meet the testimony expected to be given by the person whose name is so indorsed, the court should give the defendant a reasonable time to prepare his defense. It is doubtless, true, as contended by the attorney general, that an application of the character indicated is ad- dressed to the sound discretion of the court, and, unless preju- dice is shown to have resulted from a denial thereof, the ruling will not be disturbed by this court. The bill of exceptions shows that Levi Shores was a most important witness for the state in making out its case in chief. His testimony was to the effect that he bought intoxicating liquors of the defendants at the place where the liquors in question were kept. The purpose of this testimony was to establish the intent of the defendants in keep- ing the liquors, — one of the essential ingredients of the crime charged. A reasonable postponement of the trial should have been allowed the defendants to meet this testimony, and the twenty-four hours asked by the defendants was not an unreason- able time. There was an abuse of discretion in refusing this request. Parks v. State, 20 ISTeb. SI'S; 31 K W. 5; Stevens v. State, 19 Neb. 647; 28 N. W. 304. 494 Federal and State Ceimina-L Eeportee, Vol. I, The conclusion reached in Gandy v. State, 24 ITeb. 723; 40 !N". W. 302, cited by the state, does not conflict. There, addi- tional names were indorsed upon the information immediately, preceding the trial, and a continuance was thereupon requested by the defendant, which was denied. The testimony of those whose names were thus indorsed was immaterial, and the continu- ance was asked over the term. In these important respects the case differs from the one at bar. Other errors are assigned, but the conclusion already reached makes their consideration unnecessary. The judgment is re- versed, and the cause remanded for further proceedings. Eeversed and remanded. Supreme Court of Nebraska. riled January 9, 1896. LAWHEAD V. STATE. 1. Indictment— Larceny. Diflerent criminal acts, constituting parts of the same transac- tion, such as burglary with intent to steal particular property and the stealing of such property, may be charged in the same indict- ment or count thereof. Aiken v. State, 59 N. W. 888, 41 Neb. 863. S. CKiMiNAii LAW — Evidence. It is not error, in a prosecution for larceny, to charge that "the proof is deemed to be beyond a reasonable doubt when the evidence is sufficient to impress the judgment and understanding of ordin- ary prudent men with a conviction upon which they would act in their own most important affairs or concerns of life." Polin v. State, 16 N .W. 898; 14 Neb. 540; Willis v. State, 61 N. W. 854; 43 Neb. 102. , - Lawhead v. S^ate. 495 8. Same— iHflTBUonoN. Where the jury have been fully advised respecting the distinction between grand larceny and petit larceny, it is not error for the trial court to add that they have nothing to do vyith the question of the penalty, and that it is their duty to render a verdict in accordance with the evidence, without regard to its efEect upon the accused. Ford v. State, 64 N. W. 1083; 46 Neb. 390. 4 Same. Certain instructions held properly refused, the propositions- therein embraced having been given by the court on its own motion in language quite as favorable to the accused. 6. Labcent— Pkoof. Evidence examined, and held to sustain the conviction Of the- charge of larceny. Appeal from a judgment convicting plaintiff in error of larceny. r. G. Hamer and Greene & Hostetler, for plaintiff in error. A. S. Churcliill, Atty. Gen., and George A. Day, Dep. Atty.- Gen., for tlie state. POST, C. J. — The plaintiff in error was by the district court: for Buffalo county adjudged guilty of grand larceny, and sen- tenced to a term in the penitentiary, which judgment he now seeks to have reversed by means of a petition in error addressed to this, court. The first proposition to which we will give attention is that the verdict is contrary to law, for the reason that the indictment in- cludes in the same count a charge of burglary as well as of larceny. The charge is in the usual form, and concludes as follows r "Then and there being found in said barn, feloniously and burglariously did steal, take, and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Nebraska." It is said by coun- sel that: "The stealing that is here charged is a burglarious- etealing. * * * If the answer be that he is charged with both burglary and th-eft, I reply that he cannot be so charged in the same count, and that the indictment is bad for. d,up]icity." To- 496 Pbdebal and State Criminal EepobteIi, VcHi. L that proposition we cannot give our consent. It is, on the con- trary, firmly established by authority that burglary and larceny, where each constitutes part of the same transaction, may be charged in the same count, and the defendant may be found guilty of larceny only. Aiken v. State, 41 Neb. 263; 59 IST, W. 888, and authorities cited. 2. It is next alleged that the court erred in giving the following instructions on its own motion: "The court instructs you that by a reasonable doubt is not meant that the accused may possibly be innocent of the crime charged against him, but it means an actual doubt having some reason for its basis. A reasonable doubt that entitles to an acquittal is a doubt of guilt reasonably arising from all the evidence in the case. The proof is deemed to be beyond a reasonable doubt when the evidence is sufficient to impress the judgment and understanding of ordinary prudent men with a conviction on which they would act in their own most, important concerns and affairs of life." The specific objection to the foregoing instruction as made in the motion for a new trial is to the last sentence or paragraph thereof. That portion of the instruction to which the criticism is directed is a substantial copy of the charge approved by this court in Polin v. State, 14 Nob. 540; 16 N. W. 898; Langford v. State, 32 Neb. 782; 49 N. W. 766; and Willis v. State, 43 Neb. 102; 61 N. W. 254. The use of the qualifying word "ordinary" instead of "ordin- arily," as in the instruction approved, is probably the result of an error in transcribing. But, however that may be, the variance is unimportant, and presents a question of grammatical construc- tion, rather than a question of law. 3. During the deliberation of the jury the following proceed- ings were had, as disclosed by the record: "Question by jury: What is the difference in punishment between grand larceny and petit larceny ? Answer by the court : G-rand larceny is where the property stolen is of the value of thirty-five dollars or upwards, and punishable by confinement in the penitentiary not less than one year and not more than seven years. Petit larceny is where the property stolen is of the value of less than thirty-five dollars,. Lawhead v. State. 497 and is punishable by imprisonment in the county jail not exceed- ing thirty days, and, in addition, may be fined one hundred dol- lars, and also to make restitution to the owner of the property stolen in double its value. The court desires to add that it ans- wers these questions in the hope that it may help your investiga- tions, but desires to say further that it is your duty to pass upon the evidence, and declare your verdict thereon, irrespective of what the punishment may be. This matter is for the court. You have done your whole duty when you have passed upon the facts as shown by the evidence." Exception was taken to the cautionary language with which the foregoing instruction con- cludes, and which exception is the ground of the next assignment of error. The question here presented was practically deter- mined in Ford v. State, 46 JSTeb. 390; 64 IST. W. 1082, where it was said that; "Where the jury are not required to fix the pun- ishment in a criminal prosecution, it is not error for the trial judge to refuse to instruct them as to the penalty prescribed by the stat- ute for the offense, or to permit that question to be argued to the jury." The only difference between that case and the case at bar is that in the former counsel was refused permission to comment upon the penalty for larceny in their argument to the jury, while in the latter the question was disposed of by instruction. The court therefore did not err in the ruling assigned. 4. Certain witnesses for the state had been employed as de- tectives to procure evidence against the accused, and instructions requested by the latter regarding the weight to vbe given the testimony of such witnesses were refused, and which refusal is also assigned as errror. The request of the accused was based upon the holding of the court in Preuit v. State, 5 ISTeb. 377, and in Heldt v. State, 20 ISTeb. 492; 30 K W. 626. But the same proposition had been given in the charge of the court in language deemed by us more appropriate than that employed in the in- struction approved in Preuit v. State. The trial court did not err, therefore, in refusing the request above mentioned. 5. The accused and Joseph Hoof were jointly charged with burglariously breaking and entering a certain bam, the property Fed. Cium. Rkp., Vol. 1—63 498 Federal and State Criminal Eeforter, Vol. L of one Paist, with intent to steal harness, corn, and other property, and with the actual theft of the property therein described. Eoof, it appears, was soon thereafter arrested, and confessed to- his participation in the theft, and also implicating the accused in said crime. In piirsuance of an understanding with the for- mer, two witnesses for the state — Gass and Overmire — secreted themselves behind a blanket stretched acrosss his cell, when the accused, who had just been arrested, was placed therein, when, according to said witnesses, the following conversation was had,, quoting from the testimony of Overmire: "Sheriff Uutter brought Lawhead in there, and Eoof sat on a chair towards th© back end of the hallway, and said to him, 'You can stay in there," and then he (Nutter) went upstairs. Lawhead said, 'Hello, old man; you are here, are you? Eoof said, 'Yes, I'm here.' Lawhead said, 'How are you feeling?' Eoof said, 'Pretty badly.'' Lawhead said, 'Well, you old cuss, if you had not given me away as you did, we would both have been out of here.' Eoof said:: 'I told you not to take the harness. If you had not it would have- been all right.' Lawhead said, 'I know that, but I would not give a man away. * * * Eoof said, 'What did you da with the harness?' Lawhead said, 'If I told you, you would go- and tell the officers right away, and it Would put us both in the pen.' He said he needed the harness in his business, and Eoof was kicking all the time about the harness." The foregoing- statement is corroborated by Gass, although it is denied in toto by the accused. , This evidence, it is strenuously insisted, is insuffi- cient to sustain the judgment of conviction, and that the verdict should have been set aside upon that ground. But we think otherwise. Acccording to the settled law of this state, a con- viction may rest upon the uncorroborated evidence of an accom- plice when sufficient, in connection with the other evidence, to- satisfy the jury beyond a reasonable doubt of the guilt of the ac- cused. Olive v. State, 11 ISTeb. 1;1'N. W. 444; Lamb v. State,. 40 ISTeb. 312; 58 K W. 963. In the case at bar the larceny is, as we have seen, clearly proven, and is practically admitted by counsel, Koof, the accomplice, was found in possession of a. "Williams v. State. 499 part of tlie stolen property, and the admissions of the accused without doubt strongly tended to connect him with the perpe- tration of the crime. The evidence appears to have satisfied the jury beyond a reasonable doubt of his guilt. They were prop- erly cautioned regarding the credit due to the testimony of the witnesses of the state, but they were, after all, the judges of the weight of the evidence, and to interfere with their verdict would be a reversal of the oft-asserted and firmly established rule of the court. There are other propositions discussed in the brief by counsel. We have, however, noticed all questions presented by the record before us. The judgment of the district court is affirmed. Affirmed. Supreme Gonrt of Nebraska. Filed January 9, 1896. WILLIAMS V. STATE. 1. Homicide— Imteuction, An instruction which recites material evidence that is not hefore the jury in such a way as to imply that the judge trying the ease understands that such evidence is in the record, is erroneous. 3. Same. The effect of the evidence and the inferences deducible therefrom are for the jury, and for the court to instruct the jury that the evi- dence establishes a certain controverted fact in issue is an unwar- ranted assumption of the functions of the jury. 3. Same. Where, on the trial of a murder case, in which the defense is temporary insanity, the court undertakes to detail in an instruc- tion what evidence the jury may consider in determining whether the prisoner knew the killing was wrong, the court must impar- tially recite the material evidence offered both by the state and the prisoner to sustain their respective theories of the homicide. 500 Federal and State Criminal Rbpoeteb, Yol. I. 4. Same. It is prejudicial error for the court in such a case to group to- gether in an instruction the important material facts put in evi- dence by the state as to the prisoner's sanity, and omit all mention of the evidence produced by the prisoner tending to traverse that of the state. Appeal from a judgment convicting plaintiff in error of murder in the second degree. Jolin Heasty and W. H. Barnes, for plaintiff in error. A. S. Cliurcliill, Atty. Gen., and George A. Day, Dep. Atty. Gen., and E. H. Hiashaw, for the state. EAGAl^, 0. — In the district court of Jefferson county George AVilliams was conYicted of the crime of murder in the second degree for the killing of one Charles A. Smiley, and sentenced to imprisonment in the penitentiary for thirteen years. Wil- liams brings the judgment of the district court here for review. 1. Of the errors assigned and argued we shall notice only one. Williams' defense was, in substance, that at the time he com- mitted the homicide he was temporarily insane, being then and there deeply intoxicated, and in a state of frenzied excitement, resulting from such intoxication and a vile and opprobrious re- mark made concerning his wife by Smiley, and an assault and battery inflicted upon him by Smiley. The district court charged the jury as follows: "The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that the defendant did, upon the 20th day of August, 1894, have a quarrel with the deceased, and that deceased struck de- fendant, and knocked him down; that defendant afterwards said that he would kill the deceased, and that he would get a gun and do him before twelve o'clock; and that defendant did get a loaded- revolver, and follow and hunt up the deceased, and shoot and kill him; and thereafter stated that he had come down to kill the son of a bitch, and hoped he had killed him; and when asked why he had killed the deceased pointed to a bruise or wound on his face Williams v. State. 501 where the deceased had struck him, and said, 'See what he done to me;' and when asked what he had killed deceased with said, 'A brand-new thirty-eight, and a damned good one;' and that ho had gone down to kill him, and hoped he had; and told his wife that he had got the revolver when she was at supper, — then the jury have a right to consider all these facta in determing whether the defendant had knowledge that the act of shooting and kill- ing Charles A. Smiley was wrong." This instruction was pre- judically erroneous for several reasons: First, the court told the jury that if they found from the evidence that Williams said that "he would get a gun and do him before twelve o'clock," etc. The record contains no evidence of any such remark made by the prisoner. The jury could not find a fact outside the evidence, and the injustice to the prisoner in this part of the instruction was that the jury, without inquiry or reflection, were likely to take it for granted that the prisoner had made the threat, because the court in its instruction assumed that he had. An instruction which recites material evidence that is not before the jury in such a way as to imply that the judge trying the case understands that such evidence is in the record is erroneous. Frame v. Badger, 79 111. 441. If by an instruction a question material to the issue, and without any evidence to support it, be submitted to the jury, it is error. Dunbier v. Day, 12 Neb. 596; 12 N. W. 109. See, also, for the same principal, McCready v. Phillips, 44 ISTeb. 790; 63 N. W. 7. 2. Again in this instruction the court said to the jury: "If you believe from the evidence that the defendant did get a loaded revolver, and follow and hunt up the deceased," etc. ISTo such fact was testified to in such language. We assume, for the pur- poses of this case, that such a fact was inferable from the evi- dence ; but who was to draw such an inference ? The effect of the evidence and the inferences deducible therefrom were for the jury, not for the judge. By this statement the court assumed that the evidence warranted a certain inference, and in doiug 80 he invaded the province of the jury. Trust Co. v. Doig, 70 111. 52; 2 Thomp. Trial, 2290; Omaha F. & E. Ass'n v. Missouri 502 Federal and Statii; Criminal Reporter, Vol. I. Pac. Ey. Co., 42 Neb. 105; 60 N. W. 330; Terry v. Starch Co., 43 Neb. 866; 62 N. W. 255. 3. But the most serious defect in this instjniction consists in this : In the instruction the court grouped together the import- ant material facts put in evidence by the state to sustain its theory of the homicide, and utterly ignored the evidence produced by the prisoner which tended to traverse the theory of the state. The evidence on behalf of the prisoner tended to show that at the time' of the homicide he was suffering from a disease of the heart, which rendered him easily excited; that he was deeply intoxicated; that the deceased had made a remark to him concerning his wife of the vilest and most opprobrious character; that he had assaulted and knocked the prisoner down; and that all these things had con- duced and contributed to put him into an excited and frenzied state of mind to such an extent that he had lost control of him- self and consciousness of his actions. "We do not say that the evidence established this theory of the prisoner, but we do say that it tended in that direction; and whether this evidence war- ranted the conclusion which the prisoner claimed for it was for the jury. It is to be observed that when the court comes to sub- mit to the jury the question as to whether the prisoner at the time be shot Smiley knew that the killing was wrong ignores all the evidence of the prisoner on the subject, and picks out and holds up for the consideration of the jury only the claims of the state. After reciting the material facts proved by the state, the court said to the jury: "You have a right to consider all these facts in determining whether the defendant had knowledge that the act of shooting and killing Charles A. Smiley was wrong." The jury not only had the right to consider all the facts in evidence detailed by the court, but it had the right, and it was its sworn duty, to weigh and consider all the facts testified to by the de- fense in support of the theory of the prisoner. By this instruction the district judge practically said to the jury: "You consider the evidence that I have detailed to you, and omit all considera- tion of evidence not detailed." "When the court undertook to- detail in an instruction what evidence the jury might consider MoKEARTY V. State, 503 in determining whetlier the prisoner knew at the time that the killing of Smiley was wrong, it was its duty to hold the scales of justice equally balanced; to give impartially to the jury the material evidence offered by the state to sustain its theory and the material evidence offered by the prisoner to sustain his theory. Markel v. Moudy, 11 ISTeb. 213; 7 K W. 853; Burley v. March, 11 ]Sr.eb. 291; 9 N. W. 48; Kersenbrock v. Martin, 12 Neb. 374; 11 K W. 462; Marion v. State, 20 Neb. 233; 29 K W. 911; Long V. State, 23 Neb. 33; 36 N. W. 310; Lincoln v. Beckman, 23 Neb. 677; 37 N. W. 593; Carruth v. Harris, 41 Neb. 789; 60 N. W. 106; People v. Clarke (Mich.), 62 N. W. 1117. Irf this last case it was said that an instruction in which the strong points of the evidence for the state were brought out while the evidence for the defendant was not so emphasized, and certain testimony which tended to negative material statements of the state's witness was not even referred to, was prejudicial to the defendant. The judgment of the district couxt is reversed, and the cause remanded. Keversed and remanded. Supreme Court of Nebraska. Filed January 9, 1896. MOREAETY v. STATE. 1. FOBOEKT— Information. It is sufficient in an information for forgery to charge the intent to defraud in general terms. It is not necessary to state or prove an intent to defraud any particular person. Eoush v. State, 51 N. W. 755, 34 Neb. 325, reaffirmed, and followed. 2. Same— Order. An order to deliver to bearer a specific article of personal property is within the definition of section 145 of our Criminal Code in re- lation to forgery, as "any order or any warrant or request for * * * the delivery of goods and chattels of any kind." ti04: Federal and State Criminal Eepokter, Vol. I. 3. SiME. The order or request upon whicli the charge in this case was founded to let bearer have a designated of personal property held to be the subject of forgery, though not addressed to any person by name; and where such an order is set forth by copy in an infor- mation charging its forgery, and it is apparent from its lace or its terms that there was a possibility by its use to deprive some per- son of property rights, the information is sufficient without aver- ment of any facts extrinsic to the instrument to extend or explain its terms. 4. Same— Instrtjction'. The giving of an instrument which submits to the jury the ex- istence or nonexistence of a fact material to the issues in the case on trial, when no evidence has been introduced which would sup- port a finding of its existence, is error for which the judgment may be reversed. Appeal from a judgment convicting plaintiff in error of forgery. J. O. Yeiser, Martia Langdon, and Mahoney & Smyth, for plaintiff in error. A. S. Churcliill, Atty. Gen., and George A. Day, Dep. Atty. Gen., for the state. HAEEISON, J. — As the result of a trial during the May, 1895, term of the district court in and for Douglas county the plaintiff in error was convicted of the crime of forgery, and was sentenced to he imprisoned for a term of one year in the peniten- tiary, and to pay a fine of $100. To obtain a review of the pro- ceedings in the district court, the plaintiff in error brings the cause to this court on petition in error. The information filed contained two counts, the first of which charged as follows: "That on the 8th day of March, in the year of our Lord, 1894, Edward F. Morearty, late of the county of Douglass, aforesaid, in the county of Douglass, and state of Nebraska, aforesaid, then and there being in said county, then and there unlawfully and feloniously did forge and counterfeit a certain order and request for the delivery of goods in word and figures following, to wit: 'March 8, 1894, MoREAKTY V. State. 505- Please let bearer liave the trunk I put in your house at 5.30 this p. m. The bill is all paid, and everything O. K. Frank Mc- Kinzie, Constable,' — with intent to defraud." The second count charged that the plaintiff uttered and published the order as tru& and genuine, with intent to defraud. It is first argued that the information filed is insufficient, and did not contain a charge of a crime; that there are two defects apparent upon its face, one of which is a failure to allege an in- tent to defraud "any person or persons, body politic or coi-porate,. or any military body organized under the laws of this state;" and the other that the instrument set out in the information by copy as forged was one on which no action could be predicated, without an allegation of extraneous matter, and no such facts were pleaded. The first of these objections to the information is untenable. It is sufficient in an information for forgery to charge the intent to defraud in general terms. It is not neces- sary to state or prove an intent to defraud any particular person. Koush V. State, 34 ISTeb. 325; 51 N. W. 755; Cr. Code, § 417. It is claimed, as we have before stated, that the information was defective for the reasons that the instrument alleged to have been forged, which was set out in the information in full as the basis of the charge of forgery, was so imperfect or incomplete in its terms that it was not on its face apparently good and valid, and th'kt it was necessary to a good information that there should have been averments of matters extrinsic to the instrument, explana- tory of or extending its significance, and that no such matters were pleaded. In our statutes (see Cr. Code, § 145) there is stated in a long and quite comprehensive list a number of instru- ments which may be the subject of forgeries, and, among them, "any order or any warrant or request for the payment of money, or the delivery of goods and chattels of any kind." The instru- ment declared upon in the information purported to be an order for the delivery of a trunk, and its false making, if sufficiently perfect in its terms, would be within the provisions of our Code relating to forgery. Fed. Crim. Rep., Vol. I.— 64 ■606 Federal and State Criminal Reporter, Vol. I. The only further question is, was it apparently sufficient within itself to effect the purpose for which it was made? The instru- ment in this case was one which upon its face called for the de- livery to the bearer of a specific article, — "the trunk I put iu your house at 5.30 this p. m. The bill is all paid, and everything is O. K." The signature attached was "Frank McKinzie, Con- stable." While it is true it was not addressed to any person, yet it is apparent that it could be but for the one party with whom the trunk was left, or in whose house it was placed at 5.30 p. m. •of the day the instrument was dated; and it seems quite clear -that the order, if genuine, would have been explicit and clear ■enough for presentation to such party and demand for the de- livery of the trunk, and to warrant him in honoring it. This be- ing true, its making was forgery, and it was not necessary to plead any facts extrinsic to it in the information. If used, it was o£ a character to deprive some party of property rights. There was a possibility of some person being defrauded by its false mak- ing, and this was apparent from its face, and no averments of -other and extrinsic matters were necessary in the complaint. Its meaning was sufficiently apparent, or could be gathered from its face, from the instrument alone; and it was not essential to a full charge that there should be statements of evidential mat- ters in the pleadings. Dixon v. State (Tex. App.), 26 S. W- .500; State v. Gullette (Mo. Sup.), 26 S. W. 354; ISToakes v.. People, 25 N. Y. 380; Hendricks v. State (Tex. App.), 9 S. W. 555; People v. Krummer, 4 Parker, Cr R. 217. "But, if the. meaning of the transaction can be sufficiently extracted from the instrument itself, it will not be necessary to state matters of evi- dence, so as to make out more fully the charge." 1 Whart. Cr. Law, Y40. It was assigned that the court erred in giving instruction num- bered five to the jury. This instruction reads as follows : "You. are further instructed that the intent of a person is necessarily an operation of the mind, and is not ordinarily susceptible of direct proof, but may be determined by words spoken or acts ■done, or by both words and acts. Every human being of suffi- MoREARTY V. State. 507 cient age to understand the nature and consequence of his acts is presumed to intend the natural and probable consequences of his acts; and if you find from the evidence beyond a reasonable doubt that the trunk in question was in the possession of one W. 11. McKinzie as constable, that he had deposited said trunk for safe-keeping temporarily with one Robinson, and that defend- ant, for the purpose of obtaining possession of said trunk from said Eobinson, did unlawfully and fraudulently make, forge, and counterfeit the said instrument set out in the first count of the information, and did present said instrument to said Robin- son, and did obtain thereby said trunk, you would have a right to infer, in the absence of proof to the contrary, that the defendant did unlawfully and falsely make and counterfeit said instrument with intent to defraud; and, if the other facts necessary to a conviction and these facts have been established by the evidence beyond a reasonable doubt, the defendant would be guilty upon the first count of the information, and you should convict him on said first count of the informa- tion. And if the facts necessary to a conviction as hereinbe- fore explained to you, upon the second count of the information, have been established by the evidence beyond a reasonable ■doubt, and you further find from the evidence beyond a reason- able doubt that defendant uttered or passed said instrument des- cribed in said second count of the information for the purpose of obtaining the trunk in question from said Eobinson, you would be authorized in concluding that he uttered and published said instrument with the intent to defraud some person or persons." And the objection urged against it is that it submitted to the jury, in both its first and second paragraphs, whether the trunk was in possession of W. H. McKinzie as constable; that this was error, for the reason that there was no evidence introduced of the fact of such possession. After a careful examination of all the tes- timony given on the trial, we feel forced to the conclusion that this position is a correct one. The evidence does disclose that one W. H. McKinzie (or Washington McKinzie) was a constable in Douglas county, and that he took possession of the trtmk in 508 Federal and State Criminal Eeporter, Vol I question; that he took it from Birdie Mann, on Ninth street, in the city of Omaha; that he had a writ of replevin at the time he took the trunk; that he left the trunk at the house or store of one Kobinson, where Morearty found it when he sought or obtained it by means of the instrument set out in the information. But it nowhere appears, nor do we think it can be fairly inferred from what is shown, that McKinzie assumed possession of the trunk as constable, or by virtue of the writ of replevin, or that he held such possession as such officer or under such writ of replevin or any other writ or process, or that eitheir his taking or holding possession of the trunk was referable in any manner or to any degree to his duties or position officially, or by virtue of any re- plevin or o];her writ and its service as an officer. The use of the alleged forged order, judging from the intent and possibility of its defrauding any one, which, in the manner of its pleading,, must be extracted from the instrument itself, could but result injuriously, if at all, to prejudice the rights of McKinzie to the possession of the trunk as constable; and, there being no right of possession, as such officer, shown in him, no evidence to support a finding of such fact, if made, it was error to submit the ques- tion to the jury, and prejudicial, as the intent of the crime charged in the information was to violate the rights of the officer. Wil- liams V. State (filed this term), 65 N. W. 783. There are some other assignments of error argued in the briefs, but we do not deem it necessary to enter into a discussion of them at the present time. It follows from the views expressed herein that the judgment of the district court must be reversed, and the cause remanded. Eeversed and remanded. l^OKVAL, J. — I concur in the result, expressing no opinion upon the sufficiency of the information. KonTH V. State, 509 Supreme Court of Nebraska. Kled January 9, 1896. EOKTH V. STATE. 1. Cbiminal LAW— Appeal. AiEdavits presented as evidence on a hearingf in proceedings in a case in the district court will not be examined in this court un- less made of the record by being embodied in a bill of exceptions. 2. Same— Rkcobd When an application for discharge is made by a party charged with the commission of a crime for the reasons stated in section 391, Criminal Code, that three or more terms of court have elapsed since the one at which the information was filed against him, without his being brought to trial, and the delay has not happened on his application, or been occasioned by want of time to try it, the last two stated facts must appear afBrmatively in the record by showing made, if not otherwise. In an examination by this court to determine the propriety of the action of the district court in overruling such application they will not be presumed, but the presumption that the court proceeded regularly and without error will prevail. 8. Samb— County attorney. The provisions of section 21, chapter 7, Comp. St. 1895, as follows: "In the absence, sickness, or disability of the county attorney and his deputies, the court before whom it is his duty to appear, in which there may be business for him, may appoint an attorney to act as county attorney, by an order to be entered upon the minutes of the court, but who shall receive no compensation from the county except as provided for in section six of this act (section 20, this chapter)," — held applicable to the prosecution of offenses by in- formation, established by the act of 1885 (Comp. St. 1895, c. 14, art. 1, § 69, subd. 33), and to warrant or authorize the trial coiirt to appoint an attorney to perform the duties required of the county attorney in any particular case being prosecuted under the law in regard to prosecutions for offenses by information, whenever the conditions exist as stated in section 21, chapter 7, herein quoted; and that the enactment allowing such appointment is not in con- flict with the provisions of section 10 of the bill of rights in the portion wherein it refers to the legislature providing by law for holding persons to answer for criminal ofEenses on information of a public prosecutor. 510 Federal and State Criminal Eeporter, Vol. L 4. Same— Waiveb. In a criminal case "the accused shall be taken to have waived all defects which may be excepted to by a motion to quash or a. plea in abatement by demurring' to an indictment or pleading in bar or the general issue." See Criminal Code, § 444. And if a plea. to the general issue has been entered, and has not, on leave ob- tained, been withdrawn, a plea in abatement need not be enter- tained. 6. Same — Transcript, Where a transcript of the proceedings at the preliminary ex- amination, and the information upon which such examination was had, were lost or mislaid from the files of the district court, an order for the substitution of another transcript of such record and copy of the information was proper, and not erroneous. 6. Same — Preliminary examination. The record of the proceedings in the examining court discloses that a complaint was filed, which contained a charge of the crime for which plaintiff in error was tried in the district court, and that he was arraigned thereupon, and waived examination. Held BufScient to show fulfillment of the requirements of section 585 of the Criminal Code in regard to preliminary examination. 7. Same — Indictment. A number of separate and distinct felonies, all of which may b& tried in the same manner, which are of the same general character, require for their proof evidence of the same kind, and the pun- ishment of the same nature, may be charged in separate counts of one information, and the party thus charged may be placed on trial for all of such counts at the same time. The question of whether the state vsdll be required to elect between the several counts if a motion is made by defendant that it be so required- will rest in the sound discretion of the trial court, and, unless it appears that there has been an abuse of such discretion in over- ruling the motion it will not be available as error. 8. Same — Election. , In the case at bar the defendant was charged with embezzlement of the funds of a county while he was its treasurer, in an infor- mation contairing several counts charging several and distinct embezzlement. He made a motion that the state be required to- rilect upon which of the several counts of the information it would prosecute him. The trial court withheld its ruling upon this motion until the close of the introduction of the state's testimony in chief, at which time the motion was sustaijied, and the state required to elect under which count of the com^plaint it would further proceed. Held, so far as the record discloses, there was no abuse of discretion in the action of the trial court. KoKTH V. State, 511. 9. Same— Inbtrttction. It is not error to refuse to give an instruction when the main, purpose sought to be effected by giving the instruction is clearly and fully embraced in and accomplished by other instructions^ read to the jury, and it appears that no prejudice could have re- sulted to the rights of the complaining party by reason of such refusal. 10. Same — Statutes — Repeal. The act of the legislature of 1891 entitled "An act to provide for the depositing of state and county funds in banks" (Sess. Laws 1891, p. 347, e. 50) did not repeal so much of section 124 of the Criminal Code as is in relation to loaning county funds, and con- stitutes such loaning by an officer intrusted with its care and dis- bursement an embezzlement. Appeal from a judgment convicting plaintiff in error of embez- zlement of public money. H. C. Brome, Douglas Cones, and Barnes & Tyler, for plaintiff" in error. A. S. CburcMU, Atty. Gen., and George A. Day, Dep. Atty. Gen., for the state. HAERISOlSr, J.— On December 15, 1891, an information, was filed in tbe district court of Pierce county charging the plain- tiff in error with the crime of embezzlement of public money, the property of such county, during the time he was treasurer thereof. On the SYth day of April, 1893, the application of plaintiff in error for a change of venue was granted, and the case was sent to Antelope county for trial. December 23, 1893, as a result of a trial, a verdict of guilty was rendered and entered, and, after motions for new trial and in arrest of judgment were heard and overruled, plaintiff in error was sentenced to a term of three years' imprisonment in the penitentiary. He has pre- sented the cause to this court on petition in error. A bill of ex- ceptions was filed, which was attacked on the part of the state- by a motion to quash, which was sustained, as a consequence of which action we will be confined in our examination of the points raised on the application by the assignments of error to thos& 612 Federal and State Cbiminal Eepoetbb, Vol. I. which, can he discussed and determined -without reference to the bill of exceptions. One assignment of error refers to alleged misconduct of the court during the trial. The facts on which this assignment de- pends for its force were made a part of the record by ai&davits in which they were set out. There were also counter affidavits in relation to the same matter filed for the state. Affidavits of the character of these, in order that the subjects embraced in them may be available in the presentation of questions in this court, must be preserved in a bill of exceptions; and if it was done in this case the bill of exceptions has been quashed, consequently the facts with relation to this objection are not properly before this court for examination. It follows that the assignment of error is unsupported, and must be overruled. During the pendency of the cause, and before trial, the plaintiff in error made application by motion to be discharged on the ground that four terms of court succeeding the one during which the information under which he was prosecuted was filed had passed without a trial being accorded him, and that the delay or failure to bring the case to trial was not occasioned by any appli- cation or act of his, or by lack of time. Affidavits were filed in support of the motion to show that the trial of the case had not been delayed on application of the plaintiff in error, or for want of time, and on the part of the state mainly directed to an attempt to show the opposite to be true as to both facts; but the affidavits are not presented to this court by a bill of exceptions, and we cannot examine or consider them. The record before us does not disclose that the delay in the trial of the cause was caused in any manner by the plaintiff in error, or for lack of time at any term of the court to try it; nor does the contrary appear. For the purpose of the motion, doubtless it devolved upon the plaintiff in error, if not disclosed by the record, to show that there had been no postponement of the trial of the cause on his application, or that the delay was not occasioned by want of time to try it during the third term of court held subsequent to the term at which the information was filed. In the absence of the appearance of these KoETH V. State, 513 facts in the record, or a showing in regard to them, we think the presumption must prevail that the court proceeded regularly, and without error, and properly held and placed the plaintiff in error upon trial at the time it did; or it will not be presumed that the trial court, in the face of the existence or a showing of the existence of the facts which entitled the plaintiff in error to his discharge under the provisions of section 391 of the Criminal Code, ignored his constitutional right to a speedy trial (see Bill of Rights art 1, § 11), and improperly held and tried him for the crime with which he was charged. Another contention is that the information filed in the case was not made or filed by any officer or person authorized by law. The information was made and filed by W. W. Quivey, who was not the county attorney of Pierce coimty at the time, and whose authority, if he possessed any, was derived from an order of the court in this particular case, which was as follows: "Now, on this 14th day of December, 1891, the same being a judicial day of the regular December, 1891, term of said court, this cause came on for hearing, and, the county attorney failing to appear and prosecute this case, and it appearing to the court that said county attorney is disqualified from prosecuting on behalf of the state of iN'ebraska by reason of his having been retained as counsel for the defendant, Carl Korth, prior to his election and qualification as county attorney, aforesaid, and it further appearing that said county attorney has no deputy qualified to appear for him in this case: It is therefore ordered by the court that "W. W. Quivey is hereby ordered by said court to act as county attorney in this case, and that John S. Robinson is hereby duly appointed by the court to assist the said "W. "W. Quivey as county attorney in the prosecution of this case." Pursuant to this order, W. W. Quivey acted in all particulars as county attorney in this case. It is argued that under the provisions of our constitution (Bill of Eights), article 1, § 10: "That no person shall be held to ans- wer for a criminal offense * * * unless on a presentment or indictment of a grand jury; provided that the legislature may by law provide for holding persona to answer for criminal offensea Fed. Ckim. Rep., Vol. 1—65 614 Federal and State Ceiminal Eeporteb, Yol. L on information of a public prosecutor; and may by law, abolisb, limit, cbange, amend or otherwise regulate the grand jury sys- tem;" and the act of 1885, establishing prosecution of crimes by- information, in one section (Cr. Code, § 579) of which it is stated: "All informations shall be filed during term in the court having jurisdiction of the offense specified therein, by the prosecuting- attorney of the proper county, as informant," — the county attorney is indicted as the person, and the only one, who can make and file an information in a prosecution by such proceeding without the intervention and finding of a grand jury; that the several district judges or courts of the state possess no right to- and cannot appoint, any one to file information in the place and stead of the county attorney. The legislature which passed the act authorizing prosecutions by information also passed an act in relation to county attorneys and their duties, etc. In one sec- tion (see Comp. St. 1895, c. 7, § 21) it was provided: "In the absence, sickness, or disability of the county attorney and his- deputies, the court before whom it is his duty to appear, in which. there may be business for him, may appoint an attorney to act as county attorney, by an order to be entered upon the minutes of the court, but who shall receive no compensation from the county except as provided for in section six (6) of this act." This, doubtless, gave the trial court power to make the appoint- ment, and the person designated in its order possessed the authority to act in this particular case in all matters or questions arising therein which would probably have fallen within the prov- ince of the county attorney to examine and determine had he been present, and not disqualified to act. ITor do we think in this, holding we do any violence to the proper enforcement of the; provisions of the constitution and the law of 1885 invoked by the? plaintiff in error, when given their true and practical significance.' It is urged that the power to thtis appoint an attorney to prose- cute a cause against a person accused of crime is liable to be-, abused, and some one assigned the duty who is incompetent, or who will not fairly conduct the case, but may, in the interest of: private parties, who desire an exceedingly vigorous prosecutioni KoRTH V. State. 515 to be made, allow the criminal case to become tbe means of satisfying personal spite or tbe gratification of malicious purpose, and the party charged with crime be persecuted, rather than prosecuted as the law contemplates. This contention involves the assumption that the person who has been so fortunate as to be elevated by a majority of the votes of the electors of the judi- cial district to the high and honorable position of district judge will lend himself or be hoodwinked into seeming to countenance the scheme depicted in this argument, and the member of the bar appointed will be disreputable, and ready to disregard his oath, and act in an unprofessional manner. With this view we cannot agree. It must rather be presumed that both judge and attorney will perform their respective duties fairly, impartially, and honorably. It is possible that, in exceptional cases, what is claimed in the argument may happen ; but, if so, it may always be remedied in the same or a higher court. A plea in abatement was filed in behalf of plaintiff in error, and on motion of the state was stricken from the files, er prac- tically overruled. This action of the court is assigned as error. The plea was founded upon the same matters as presented in the motion to discharge the plaintiff, and which we have hereinbefore discussed. Whether it was proper practice for the court to strike the plea from the record, or whether the subjects set forth in the plea were such as may properly be presented by the plea in abatement, we need not stop to consider, for on December 17, 1891, plaintiff in error had been arraigned and pleaded generally, and on the date the plea in abatement was filed the plea to the general issue was still of record and not withdrawn. This being true, all defects which might have been excepted to by plea in abatement were waived. See Cr. Code, § 444. And if it was error (which we do not now decide) for the court to strike the plea from the files, it could not prejudice the rights of plaintiff in error, as at the time the plea could not have been of any avail. Another objection is that at the time the plaintiff in error was placed on trial the record did not show that he had ever been accorded a preliminary examination for the crime with which 516 Federal and State Criminal Eepoeter, Vol. I. he was charged in the trial court. This objection was made in, the district court at the inception of the introduction of testimony and was overruled by the court. This is assigned for error. The prosecution was instituted in the county court of Pierce county, and after it reached the district court an information was filed. Afterwards, during the pendency of the cause in Pierce county, an order was made in which it was recited that the transcript of the record of the hearing before the county judge, and some of the accompanying papers, and particularly the information filed in the examining court, had been lost, and that a new transcript and copy of the information be substituted. A change of venue was applied for and granted, and the case was transferred to Antelope county, and the order of substitution was not fulfilled until after the re- moval of the cause to Antelope county, and the commencement of the trial; but the transcript then filed disclosed that the plain- tiff in error waived an examination in the county court. This being true, there was no prejudice to his rights in proceeding with the trial at a time when the transcript of the hearing in the ex- amining court was not in the record by reason of being lost or mislaid, o\ in allowing another transcript and copy of such in- formation to be substituted. Another alleged error is that the court erred in refusing to require the state to elect on which count of the information the plaintiff in error should be tried. There were five counts in the information, as to the fourth of which a nolle prosequi was en- tered before the cause came to trial. A motion was filed at or about the time of trial to require the state to elect upon which count of the information it would proceed. Upon this the court withheld its ruling until such time as the evidence for the state should all be introduced, and, when the trial had progressed to the stage indicated, sustained the motion, and an election was accordingly made at that time by the state. It is urged that the court erred in not sustaining it at the time when made. After the fourth count of the complaint was ignored, there still re~ mained four counts in which separate and distinct felonies were charged; but each was a charge of embezzlement of public money^, KOrth v. State. 517 the money of tlie county of wMcIl the plaintiff in error was treasurer. The offenses were all of the same general character, required for their proof the same quality of testimony, the same manner of trial and mode of punishment, and it was proper to try the plaintiff in error upon the several counts at the same time. Whether there should be an election as to the particular count was a question within the discretion of the trial court. This, in the case at bar, was exercised by allowing the prosecution to in- troduce its testimony, and then requiring it to elect, and we can- not discover from the record that in this there was any abuse of discretion. As to the main proposition, see 1 Bish. Cr. Proc. (3d. Ed.) §§ 424, 450, 451; Whart. Cr. PI. § 285 et seq.; Com. V. Jacobs(Mass.), 25 K E. 463; Pointer v. U. S., 14 Sup. Ct. 410; State v. Hodges (Kan. Sup.), 26 Pac. 676; 4 Am. & Eng. Law, 754-756; Eoberts v. People (Colo. Sup.), 17 Pac. 637. It is claimed the court erred in refusing to give instruction numbered 2 requested by plaintiff in error. This instruction was as follows: "You are instructed that in law the words 'prima facie' mean 'at the first blush,' 'on the first appearance of such evidence, in a criminal case are not sufficient to warrant a convic- tion. The rule obtains in all criminal prosecutions that the evi- dence must be sufficient to convince the jury of the defendant's guilt, and of every element of the transaction going to establish his guilt beyond all reasonable doubt." Instruction numbered one given at the request of plaintiff in error reads: "You are instructed that the statutes of this state provide that any failure or refusal to pay over public money, or any part thereof, by any officer or other person charged with the collection, receipt, transfer, disbursement, or safe-keeping of the public money, or any part thereof, whether belonging to the state or to any county or precinct or school district or organized city or incorporated village in this state, or any other public money whatsoever, * * * shall be taken and held as prima facie evidence of embezzlement. ^Nevertheless you are instructed that the state must prove to you beyond all reasonable doubt that the defendant converted the public moneys of Pierce county to his own use, with 618 Federal and State Ceimin'al Eepoeter, Yol. L intent to defraud the said county out of the same. And if you have any reasonable doubt of such fact you will give the defendant the benefit of such doubt, and find him not guilty." The argu- ment is that, inasmuch as the court thought fit to give instruc- tion numbered one, then, to convey to the jury a proper under- standing of its terms, and in particular the words "prima facie evidence," No. 2 should have been given. It will be noticed that in the concltiding portion of ISTo. 1 the jury is informed that, notwithstanding all that may have been stated in the preceding portion of the instruction, the proof, to be sufficient to convict, must be beyond a reasonable doubt; and in an instruction num- bered three, asked by plaintiff in error, and given, this feature of the requirement in regard to the proof was stated in strong terms, and in instruction numbered three, given by the court on its motion, the above rule was clearly and positively announced, and it also appears in other portions of the instructions. In view of all this, we are satisfied that no prejudice could have resulted to the rights of plaintiff in error from the refusal of the court to give the instruction indicated in the assignment of error. The giving of each of the instructions numbered one and two of the charge to the jury given by the court on its own motion is assigned as error. The main objection raised is claimed to be applicable to both, and we will so examine it. No. 1 of these in- structions was a copy of the section of the Criminal Code defining the crime of embezzlement of public money under which this prosecution was instituted, and No. 2 quoted the first count of the information, and stated that it contained a charge against the plaintiff in error of a violation of the section set forth in instruc- tion numbered one. It is alleged that the act of the legislature of 1891 in relation to depositing the county funds in banks re- pealed at least so much of the section defining the crime of em- bezzlement as refers to the loaning of such funds, and that these instructions were erroneous in not noticing the act of 1891, and its claimed effect upon the laws of embezzlement, and in not infonning the jury that it should not consider any evidence in relation to loaning the county funds, as bearing upon the issue KoRTH V. State. 519 which was being tried. To the proposition that the act of 1891 repealed the portion of the law of embezzlement in regard to the loaning of funds of a county we do not agree. The act of 1891 was entitled "An act to provide for the depositing of state and county funds in banks" (Sess. Laws 1891, p. 347, c. 50), and in its text it is confined to providing for the deposit of such funds, for safe-keeping, in banks, under certain requirements as to bonds being furnished for the security of such funds and other details; and in each and every detail it appears that it is for the county and its benefit that such deposits are to be made, the treasurer acting in each and every instance for and in behalf of the county, and as prescribed by law, and not of his own volition. If he re- fuse to perform any of the statutory requirements, he is liable to punishment therefor; and if he deposit the money of the •county, under the direction of the law, in a bank which has given bond, he is not liable for any money so deposited. It is true, there is a section of the act referred to which defines as a crime the making of any profit whatever, directly or indirectly, by the county treasurer, out of any money belonging to the county, in his charge, by loaning it. It is the fact that a profit is de- rived from it that subjects him to punishment, and not the fact of the loaning. The deposit of the funds which the treasurer is called upon to make by the law in question is, in effect, a de- posit by the county. The treasurer has only to place it where directed, and draw it when needed for county purposes. In the law defining embezzlement the loaning by the treasurer, either with or without interest, is evidence of a conversion of the funds to his own use, and is to be punished as an embezzlement. Clearly, evidence of a deposit of the funds such as is contemplated by the act of 1891 would not be competent, and could not be received in a prosecution for embezzlement of county funds by the treasurer, as tending to show a loan. IN'or does the fact that an attempt has been therein made to provide a punishment of &e treasurer for making a profit out of the public money by loaning it in any manner or degree conflict with or abridge the light or power of the state to punish the act of loaning the funds 520 Federal and State Crimikal Keporter, Vol. I by the treasurer as an embezzlement. We are clearly of the opinion that the act of 1891 referred to did not work a repeal of the portion of the law in relation to the loaning of county funds- by officers intrusted with their care and charged with their dis- bursement, and which constitutes such loaning a conversion and embezzlement of the funds loaned. The judgment of the district court is affirmed. Supreme Court of Nebraska. Filed January 9, 1896. COOLEY V. STATE. Complaint— CoNSTRTjcTrvB contempt. A complaint is insufficient as the foundation of proceedings for constructive contempt whicli fails to state the facts constituting the alleged ofEense, and showing that the act of the accused amounts to a fraud upon the court, or tends to hinder or embarrass it in the administration of justice. Plaintiff in error brings error to review a judgment holding him guilty of contempt. D. Van Etten, for plaintiff in error. A. S. Churchill, Atty. Gen., and W. "W. Slabaugh, for the State. POST, 0. J. — This is a petition in error to review a judgment of the district court of Douglas county whereby the plaintiff in error was adjudged guilty of contempt of court. The basis of the prosecution below is the following order, entered by the district judge on his own motion : "State of Nebraska v. Julius S. Cooley and Theodore Galligher. It now appearing to the court that one Julius S. Cooley has used fraudulent means and imposed upon. Charles J. Karbach in the obtaining of a certain affidavit of th® CooLEY V. State. 521 eaid Charles J. Karbach recently filed in case entitled George A. Hoagland v. Emma L. Van Etten et al., Doc. X !N'o. 1 75 of tliia court; and it further appearing to the court that one Theodore Galligher has used fraudulent means and imposed upon George H. Fitchett and E. C. Garvin, respectively, in the obtaining of certain afiidavits of the said Garvin and Eitchett, recently filed in case entitled George A. Hoagland v. Emma L. Van Etten et al.^ Doc. X ISTo. 375 of this court; it further appearing that the said Julius S. Cooley and Theodore Galligher procured the said affi- davits of the parties as above set forth knowing and intending^ that said affidavits were to be filed in this court, to be used upon the hearing of said cause, to wit, George A. Hoagland v. Emma. L. Van Etten, and that the said Galligher and Cooley intended thereby to impose upon this court: It is therefore ordered that a capias be issued forthwith to the sheriff of Douglas county, Ne- braska, commanding him to bring the said Julius S. Cooley and Theodore Galligher before this court at 9:30 o'clock "Wednesday- morning next, to show cause why they, and each of them, should not be punished for contempt of this court. G. W. Ambrose, Judge." Upon the entry of the foregoing order, a capias was- issued, by virtue of which the plaintiff in error was arrested, and, at a subsequent day of the term, was adjudged guilty as charged in said order, and sentenced to imprisonment in the county jail for the period of ten days, and to pay a fine of fifty dollars, to- gether with the costs of the prosecution. The question of the sufficiency of the said order was raised at every stage of the proceeding, and also by the petition in error. It has been frequently said that the proceeding for contempt tinder our system is in the nature of a criminal prosecution, and that the same degree of certainty is required in stating the offense as in prosecutions under the Criminal Code. Gandy v. State, 13 Neb. 445; 14 K TT. 148; Boyd v. State, 19 Xeb. 12S ; 26 N. W. 925; Johnson v. Bouton, 35 Xeb. 903; 53 X. W. 995; Per- cival V. State, 45 Xeb. 741; 64 K W. 221; Hawes v. State, 46 TSeb. 149; 64 N". W. 699. That nxle is especially applicable to acts which, although not committed in the presence of the court,. Fbd. Cbim. Rep., Vol. I.— 66 522 Federal and State Criminal Reporter, Yol. I. tend to embarrass or prevent tlie orderly administration of justice, and -wMcli are known as "constructive contempts." In Graudy V. State, supra, it is said: "The proceeding against a party for constructive contempt must be commenced by an information under oath, especially stating the facts complained of. An at' tachment may then be issued, or order to show cause." In that •case the information which was prepared and filed by the district attorney after describing a certain cause then on trial, to which the defendant therein was a party, alleged that the said defendant "did willfully attempt to obstruct the proceedings and hinder the due administration of justice in said suit, then and there de- pending and on trial, as aforesaid, before said district court, in this, to wit, by attempting to procure one George A. Abbott, Jerry Ackerman, and other persons, whose names are to this affiant and informant unknown, to unlawfully seek, strive, and attempt to corrupt and influence the jurors, to wit, * * * in their action, judgment, and decision * * * in said suit." In the opinion reversing the judgment of conviction, Maxwell, J., says : "In the case at bar there is not a single fact alleged show- ing an attempt on the part of the defendant to improperly in- fluence jurors ; that is, there is no statement of what he did. The information therefore fails to state an offense." In State v. Hen- thorn, 46 Kan. 613; 26 Pac. 937, the court say: "It is error to issue an attachment, warrant, or order of arrest for an alleged constructive contempt, without an affidavit or information con- taining a statement of the facts constituting the alleged contempt having first been filed with the court." See, also, to the same effect. In re Holt (N. J. Sxip.), 27 Atl. 909; Wilson v. Territory, 1 Wyo. 155; In re Daves, 81 K C. 72; Ex parte Wright, 65 Ind. 608; Eap. Contempt, 43. We must not be understood as intimating that proceedings for constru.ctive contempt may not be instituted by the court or judge. On the other hand, it is the right, if not, indeed, the duty, of the tribunal whose power is defined, or whose process is obstructed,' to take notice of that fact without waiting for an informant, who is usually more interested in asserting his personal rights than in the vindication of the court. It is probable, too that an order State v. Douglass. 523 like that entered in tliis case is a sufficient foundation for tlie pro- ceedings. But, to have that effect, it must contain the allegation essential to confer jurisdiction in a prosecution by affidavit or com- plaint. "When tested by that rule, the order mentioned is clearly insufficient. If this conviction can be sustained, it must be upon the allegation that the accused "has used fraudulent means and imposed upon one Charles J. Karbach in the obtaining of a cer- tain affidavit." Here, as in Grandy v. State, there is alleged no fact from vifhich it can be foimd or inferred, as a matter of law, that the act of the accused was a fraud upon Karbach, the affiant named, or that its effect was to impose upon or embarrass the court in the administration of justice. Such a statement would be indefensible in an action for relief on the ground of fraud, not to mention a criminal prosecution. The judgment is reversed, and the prosecution dismissed. Supreme Court of Appeals of West Tirginla, Filed December 7, 1895. STATE V. DOUGLASS. 1. iNDTOTlfENT — HOMICIDB. An indictment for homicide, which is in the form allowed by section 1, chapter 144 of Code, will not be held bad. 3. CRiMtNAij LAW — Venue. The venue will not be chang'ed for the mere belief of the party or his witnesses that he cannot have a fair trial in the county; facts and circumstances must appear satisfying the court. 3. Same— Jurors. Jurors, who say that they have made up their opinions adverse to defendant from the rumor of the county, etc., and state defi- nitely that they have no bias or prejudice against defendant but that they can have their minds blank and free from such opinions, and can and will give the prisoner a fair and impartial trial, -umti fluenced by such opinions, according to the evidence, are competent. Appeal from a judgment convicting defendant of murder. J. W. Arbuckle and W. P. Rueker, for plaintiff in error. 524 Federal and State Criminal Ebpobter, Vol. L T. S. Riley, Atty. Gen., for tlie State. BEANNON, J. — This is a writ of error brouglit by Kenos Douglass to reverse' a sentence of imprisonment for life in the penitentiary imposed upon him by the circuit court of the county of Greenbrier for the murder of Thomas Eeed on Christmas night, 1893. Counsel for the prisoner asks us to hold bad the indict- ment, which is in the form allowed by section 1 of chapter 144 of the Code; the particular defect suggested being the omission to charge the homicide as having been done vnth premeditation, as one of the essential elements of murder in the first degree. As was said in Baker's case, 33 W. Va. 330; 10 S. E. 639, we re- gard the indictment good under several decisions there mentioned, and will not reopen its discussion. It has been so long used and BO often approved that the matter ought to have rest. The refusal to allow a change of venue is relied on as error. The statute requires the accused to show good cause for it. Thia means that he must show it to the satisfaction of the court. State v. Greer, 22 W. Va. 800. To maintain this motion numerous affidavits were filed, — all, I may say, alike in substance, — stat- ing that the affiants had heard the case much talked about in the county, and that there was a strong prejudice against Doug- lass, and that, in the opinion of affiants, a fair and impar- tial trial could not be had in Greenbrier county. Are these affidavits taken alone, without reference to the counter affi- davits filed by the state, sufficient to show that the circuit court gbused the discretion lodged with it? They show what? Eirst, That the case was much talked about. This is only a basis of opinion that prejudice existed. Second. That there was prejudice, which could only be matter of opinion. Third. That in the opinion of affiants a fair trial could not be had. !N"ow, this all amounts but to an expression of opinion that a fair trial could not be had. There may be public discussion of a case. There always is of murder cases. There may be prejudice, — generally is; but it is so prevalent and widesprend that, in spite of the safe- guards which the law throws around trials, it may — there is serious State v. Douglass. 525 danger that it may — prevent a fair trial? 'No facts are given affording a basis of judgment as to wlietlier sucli trial can be had. Opinions differ so widely. They spring, with different men, from so* many different theories, conjecture, bias, partisanship, or solid ground. There must be facts and circumstances so that legal deductions can be made. In Wormsley's Case, 10 Grat. 658, the evidence showed much more than here, and was held insufficient, and the rule stated that the prisoner's affidavit, alone, of a fear or belief that he could not get a fair trial was in- sufficient, and that there must be independent testimony to show facts making it appear probable, at least, that his fears and belief are well founded. 1 Bish. New Or. Proc. § 71, cl. 5, correctly states the rule: "The venue will not be changed for the mere belief of the party or his witnesses that he cannot have a fair trial in the county. Facts and circumstances must appear satisfying the court." So long ago as 181Y the Virginia general court adopted a general rule that in future, in all motions to change the venue, the petition and affidavit "shall set forth the particular facts from which the petitioner is induced to believe that he can- not have a fair trial in that county." 2 Va. Cas. 88. In Terri- tory V. Egan, 3 Dak. 119; 13 N. "W". 568, it is held that the affi- davits "must state the facts and circumstances from which the conclusion is deduced that a fair and impartial trial cannot be had. The court must be satisfied from the facts sworn to, and not from the conclusions to which the defendant and his witnesses may depose." In Salem v. State, 89 Ala. 56; 8 South. 66, it is held that opinions of witnesses pro or con are worthless, un- less supported by sufficient reasons, testified to as facts. The same rulings will be found in People v. Bodine, 7 Hill, 147 ; State V. Burris, 4 Har. (Del.) 582; People v. Yoakum, 53 Cal. 566. It is clear that the prisoner's showing did not entitle him to a change of venue. But affidavits were filed by the state denying the existence of a prejudice against Douglass to an extent at all militating against a fair trial, stating that the excitement inci- dent to the murder had abated, as also the feeling against him, and that he could, in the opinion of affiants, have a fair and im- 626 Federal and State Criminal Eepoeter, Vol. L partial trial, and that those who made the affidavits for the prisoner were residents of the immediate vicinity of the place of the homicide, and even there sentiment was divided, as the prisoner had partisans there, but that other sections of the large county of Greenbrier, composed of eight districts, were unaffected by prejudice. These affidavits conveyed the opinion of an ex- sheriff, the sheriff and two deputies, and the prosecuting attorney,, who were extensively acquainted with all parts of the county. Another point made in behalf of the accused is that the jury included improper jurors. These jurors did say that they had made up opinions adverse to the prisoner; but their opinions were not from having heard evidence, — not even from conversations with witnesses in the case, — but from the talk or rumor of the county, or from reading the Greenbrier Independent, and each and all stated definitely that they had no bias or prejudice against Douglass, that they could have their minds blank and free from such opinions, and could and would give the prisoner a fair and impartial trial, uninfluenced by such opinions, according to the evidence. This court has so often considered the question of the competency of jurors that it would be a sheer waste pi time to rediscuss the subject here. Unless we upturn numerous decisions heretofore made, these jurors were free from legal exceptions. State V. Baker, 33 W. Va. 319 ; 10 S. E. 639, and cases cited. Ought the circuit court to have given the prisoner a new trial because the verdict was unsustained by 'the evidence? I will not detail the pages of evidence. Thomas Eeed had a chopping Christmas day, and invited his friends to his cabin home in the mountains to participate in plays usual among the mountaineers on such occasions. Kenos Douglass had not helped at the chop- ping, and was not invited. He organized a company of five, he being one, and went to Reed's party, several miles away. He commanded the company. He openly exhibited a pistol along the way. The whole evidence shows that he, at least, designed to created disturbance at the party and carry things on in his own way. He and his companions were kindly invited in at Reed'a. Scarcely had he entered than he started a fuss with a younger State v. Douglass. 52T Loy, Creed Eeed, a brother of Thomas Reed, by boisterous, in- sulting language, laying his hand on his breast, and pushing liiin. back. Another brother, Johnson Reed, remonstrated with Doug- lass, saying, "Kenos, that is my brother, and you must not hurt him; he is too young," and he replied that he had things to go- on as he said, swearing as he said this. Then he and a com- panion started a play of their own, represented as rough, which Thomas Reed did not like, but let them finish it, and then said, "You must go out of my house, if you please." Evidence shows- that Douglass used both profane and obscene language in the com- pany of ladies and gentlemen. Thomas Reed did nothing more during this attack on his brother than to say to Douglass he wanted, no swearing, and Douglass said he would do as he darned pleased. Then Douglass drew a pistol, and defiantly and threateningly- snapped it two or three times, pointing it at a bed in which two- children were sleeping, and a few moments later fired the pistol' into the loose board ceiling. Not an insulting word had been given him by the deceased. When the pistol was fired a good many left the room, and then Douglass walked out the open door, and Thomas Reed, without weapon or assault or threat, but evi- dently to close the door (it may be, fearful that Douglass would, fire into the house), followed him across the small room, and, it may be, but is not certain, put his hand on Douglass' shoulder just as he went out of the door, but surely used no violence, and then closed the door, when, instantly, as the door was closed, a. shot was fired through the panel door and penetrated Reed's body, causing his death next day. Who fired this deadly shot? No one else had had the slightest word out of the way with Reed. He was the only one seen with the deadly pistol. Just as the door closed, he on its outside. Reed on its inside, before either had time to get away, came the shot. Some say he had the pistol still in hand as he passed the door sill. From whose pistol this deadly bullet? Were there no other evidence, these circum- stances would be full proof to reasonable men that he fired the fatal bullet. He was intent on mischief, as his conduct shows. He was intent, it would seem, on taking Reed's life. He was- 528 Federal and State Criminal Ebporter, Vol. I. afraid to fire in the room before all eyes, and tliought it safer to fire from the outside j but he was careful to fire at once, before Eeed would leave the knob of the door, and pointed his pistol at just the proper place to kill Eeed. He was so close that the powder burnt the door. Eeed's dying declarations to his father, Elijah Eeed, accuse Douglass. His father was at his bedside when the wounded young man said, "Pa, I don't want you to grieve for me; I am bound to die," showing the deadly wound. The father asked him, "Tom, do you know who did it?" and he was answered that it was hard for a man to be shot in his own home, trying to keep order in his own house. So strong were the circumstances, that Eeed knew whose finger pulled the trigger. There was no room for a mistake on his part. The circum- stances were too close and forceful. A witness for the defense, Eobert Taylor, says he heard a woman's voice outside the door say, "Lordy, Kenos; don't shoot," and he replied, "Damned if I don't," and then the shot. Eichard Humes and Gordon Fal- coner say they saw Kenos Douglass fire that shot. Thomas and Miranda Cochran hear Douglass say that night that he would not have shot Eeed if he had not shoved him from the door. Did Douglass go into the stricken man's house, like many others, to minister what comfort he might to him and his wailing wife? He did not. Did he go home and wait the coming of the ofiicer of the law in the consciousness and courage of innocence? He did not. Whither did he fiee? From home and the haunts of men to the recesses of the wildest mountains of the state, and in midwinter for five weeks lay in a laurel brake hiding from the eyes of man, never going to a human habitation, and there he was surprised while asleep by a vigilant officer of the law. As a jury has said he is guilty of murder in the first degree, we could not say othenvise, unless their finding be plainly, manifestly against or without evidence, so as to assault the conscience as a verdict of palpable injustice; but that verdict is sustained by abundant evidence. The jury showed mercy in not making Kenos Douglass pay the forfeit of his life for the life of Thomas Eeed, under the law of the Eible. We would fain somewhat State v. Douglass. 529 palliate the enormity of this act by attributing it to haste and recklessness of intoxication, but I regret to believe that it is only a cruel, unprovoked murder of a man without fault, within the sacred precincts of his humble home, by one who invaded that home bent on mischief to some one there, certainly; bent, likely, on taking the life of Thomas Eeed. Men intend what they do. I repeat that I would gladly attribute the act to intoxication; but while the use of liquor in Douglass' party is mentioned, it was before they came to Reed's and no one says that Douglass was to any extent intoxicated there. The signs point, as above stated, to sedate design. It appears he did not like the Reeds. He seems to have intended to break up and discredit the entertain- ment. He did so, as Thomas Reed said, when Douglass had so misbehaved, that they would have to close the play. A bad feature in this oonnection is that Sally Dancey stated on the stand that, on the 16th of December, at Trout Valley, Douglass, at a store, asked twice, before any one answered, where Tom Reed was, and she answered that he was out of town, when Douglass jumped up and ran towards the door, saying, "Boys, I am prac- ticing for Christmas, and if you don't believe it," pulling back his coat, disclosed a strap around his shoulder. This witness said she could have seen what was on the strap, if she had been stand- ing where Bernard McClung was. The defense calls from the night's shadow a humpbacked, limping old man, wearing a long overcoat, brings him to Reed's door ^ust in the nick to make a point, and then the shot, and then this figure disappears back into the night. Whence and whither came and went he? 'Ko one knows. JSTo one recognized him. Neither did the common- sense jury. That body must have regarded him as a thin, ethe- real being, bom of fiction, inspired by the superstition surround- ing such a night tragedy, or as the child of perjury, but demateri- alizing under the light of common sense and truth. One witness makes this old man anxious to know the fate of his victim, by making him return towards Reed's and inquire as to his condition. This must be attributable to remorse and repentance. It could .not be that he was returning to see if he was safe from suspicion, Fbd. Crim. Ebp., Vol. I.— 67 530 Federal and State Criminal Eepobter, Vol. I. as h.e had come and gone utterly unrecognized and unrecogniz- able. He was a myth. ^"0 doubt unfortunate Kenos Douglass would give the world, if he possessed it, to recall that deadly Bhot, and we can but feel pity for him, a young man less than thirty years of age, resting under the terrible doom of impris- onment within iron doors which will never open for himj but appeal courts cannot pardon these terrible crimes against life and organized society when a jury of the man's peers, who have looked him and his accusers in their faces, and fairly heard his cause, have pronounced him guilty. ."We therefore affirm the sentence. Supreme Court of Ohio. Kled January 21, 1896. JONES v. STATE. 1. Rape— lNt)icTMENT. An indictment under section 6816, Eevised Statutes, toY carnally knowing a female child under fourteen years of age, need not avei^ that she is not the daughter or sister of the accused. Howard v. State, 11 Ohio St. 328, distinguishing. 2. Same — Evidence;. On the trial of the issues joined by the plea of not guilty, it is error to admit evidence whose only effect is to show that others believe the accused guilty. 8. Same — "Witness — ConnoBORATiON. The recollection of a witness concerniAg a fact in issue cannot be corroborated by the contents of a memorandum made by himself, long after the circumstance, showing his recollection at a former date. Appeal from judgment convicting plaintiff in error of rape. Plaintiff in error was found guilty upon the following count: That he, "being then and there a male person of the age of eigh- Jones v. State, 631 teen years and upward, did u»lawfully and carnally know and abuse one Mary "W., then and there being a female child uiider the age of fourteen years, to wit, of the age of thirteen years, contrary to the form of the statute in such case made and pro- vided, and against the peace and dignity of the State of Ohio." A motion for a new trial was overruled, and sentence of imprison- ment in the penitentiaiy for three years, and the judgment was affirmed by the circuit court. Eulings of the trial court upon the admission of evidence are stated in the opinion. SHAUCK, J. — The first contention of counsel for the plain- tiff in error is that the indictment is fatally defective because it does not aver that Mary "W. is, or that she is not, the sister or daughter of the acccused. In support of that view they rely on Howard v. State, 11 Ohio St. 328. It was held that the crime of having "carnal knowledge of a daughter or sister forcibly and against her will" as defined in the fourth section of the act of March 7, 1835 (1 Swan & C. St. p. 404), and the crime of having "carnal knowledge of any other woman or female child than his daughter or sister, as aforesaid, forcibly and against her will," as defined in the fifth section of the same act, were distinct crimes, and not merely distinct grades of the same crime; and that in charging the latter crime, it was essential for the indict- ment to state that the woman or female child upon whom the of- fense was charged to have been committed was not the daughter or sister of the accused. The report contains only the conclusions of the court, but we suppose they were supported by the view that the indictment must contain a complete description of the offense; each of the sections referred to containing .a complete description of an offense and providing a penalty therefor. But the statute governing the present case is found in sections 6816 and 6817 of the Eevised Statutes. Section 6816 is as follows: "Whoever has carnal knowledge of a female person forcibly and against her will; or being eighteen years of age, carnally knows and abuses a female child under fourteen years of ago •without her consent, is guilty of rape." The crime described 532 Federal and State Criminal Eeporter, Yol. I. ill the latter clause of the section is that described in this indict^ ment. To hold that the indictment must either aver or negative the supposed kinship would be to add to the requirements of the statute. The case cited can have no application to the present case, because of the change in the statutory description of the offense. But counsel further contend that, since the former of the sec- tions referred to contains no penalty, and since, for the purpose of ascertaining the penalty appropriate to the crime, reference must be had to section 6817, the same difficulty is met as In the former statute. Section 6817 provides: "A person convicted of rape upon his daughter or sister, or a female child under twelve years of age, shall be imprisoned in the penitentiary dur- ing life; and a person convicted of rape upon any other female shall be imprisoned in the penitentiary not more than twenty nor less than three years." The latter section contains no defi- nition of the crime, but each of its clauses adopts the definition of the previous section. To the imposition of the severer pen- alty provided in the first clause of the latter section it is neces- sary that there be either kinship or the age of less than twelve years. To the proposition that no sentence could have been im- posed upon a plea of guilty to this indictment, it is a sufficient answer that, notwithstanding the omission from the indictment of either of the circumstances justifying the severer penalty pro- vided by the first clause of section 6817, it contains the general description of the crime for which the penalty is provided in the second clause of the latter section; that is, upon one "convicted of rape upon any other female." Under the present statute there are distinct grades of the same crime. We do not agree with counsel for the state, that upon a plea of guilty to an in- dictment of this character the coui't might hear evidence to en- able it to determine whether the penalty of the first clause of section 6817 or that of the second clause would be appropriate;, for, upon the question of kinship or age, contemplated by the for- mer clause, the defendant would be entitled to the verdict of a jury. In that cage the affirmative averment of kinship or age Jones v. State. 533 would be necessary. In this case no negative averment is neces- sary, because without it there is a complete description of an of- fense for which the penalty imposed in this case is pro- vided. On the trial, the mother of the child was permitted to testify, in answer to questions by counsel for the state, and against the objections of the accused, that after the commission of the alleged offense, and before the arrest, she went to the residence of Jones, and, not finding him at home, inquired of his wife concerning him; that Mrs. Jones told her where he was, and then declared to her, in substance, that if the friends of the child did not send him to the penitentiary she would. If the belief of Mrs. Jones in the guilt or innocence of her husband were material, that declaration, if made, would have justified the inference that she believed him guilty, though it would have been impossible to learn the sources or character of the information upon which her belief was found- ed. But as the object of the trial was to ascertain whether com- petent evidence would create such belief in the minds of the jurors, her belief was not only irrelevent, but prejudicial. It is said by counsel for the state that, if the court erred in. admitting this portion of the mother's testimony, the error was cured by the testimony of Mrs. Jones that she. did not make such declara- tion. But the incompetent evidence introduced an irrelevant inquiry, and in prosecuting that inquiry the jury may have be- lieved either witness. The state having offered evidence tending to show that the child was under fourteen years of age at the date of the alleged offense, the defendant offered evidence tending to show that she was then more than fourteen years of age. Thereupon, her father being upon the stand, and having a memorandum of the dates of the births of his children, the memorandum having been made by himself from memory a few months before the trial, was permitted' to testify that it appeared from the memorandum that Mary was born January 3, 1881. This paper had no quality which entitled it to consideration as substantive evidence. The witness had been permitted to testify fully as to his recollection 534: Federal and State Ceiminal Eeporter Vol. I. of the date of her birth, and his recollection at another time was not corroborative. For errors in the admission of evidence, the judgments of the circuit court and court of common pleas are reversed. Supreme Court of Tennessee. Filed October 16, 1895. EOGEES V. STATE. 1, HoMtelbE— Defense. The real or apparent necessity to take life, wMch is brought about by the design, fault or contrivance of the defendant, is no excuse. 2. Same. Even though sufficient cause does exist tor reasonable apprehen- sion, but the killing is not done under the fear it is calculated to inspire, or the fear is simulated, this defense will not be available. 8. Same — Proof. The defendant, in this case, was held to have fired the fatal shot without sufficient or reasonable ground to apprehend danger to himself. Appeal from a judgment convicting plaintiff in error of murder in the second degree. James G. Rose, Shields & Mountcastle, and J. B. Holloway, for plaintiff in error. G. McHenderson, ISTat. B. Jones, J. F. Tafferty, W. S. Dickson, and G. W. Pickle, State's Atty., for the state. McALISTEE, J. — The plaintiff in error was indicted in the circuit court of Hamblen county for the killing of one John Scott, and at the December term, 1894, of said court he -was foiind guilty of murder in the second degree, and his punishment fixed at confinement in the state prison for a term of ten years. This EoGERS V. State. 635 is tha second conviction of tlie defendant. On a former trial lie was found guilty of murder in the second degree, and sentenced to the penitentiary for a term of twenty years. On appeal to this court, at the last term, the judgment was reversed. It appears from the record that, at the time of the killing, the prisoner and the deceased lived on adjoining farms. The Scott family consisted of the deceased, his wife, and mother. The killing occurred on the defendant's premises, in the presence of both families, and originated in a quarrel about a cow. On the 11th August, 1893, the defendant, finding this cow in his corn- field, turned her out, and drove her to the Scott residence, for the purpose, as he claims, of getting them to keep her up. Defend- ant was on horseback at the time, and, stopping on the road in front of the Scott residence, he called several time. Failing to get any response, the defendant drove the cow onto his own premises, and put her iip in his barn. It appears that, when Eogers passed the Scott residence with the cow, the deceased and his wife were in an upper front room. The wife of deceased heard the defendant, and saw him in the road with the cow, and called her husband's attention to the fact. The deceased im- mediately started out after the cow, and, when he had proceeded as far as the barn, his wife and mother went after him, and per- suaded him to come back to the house. The two women, how- ever, followed the defendant, who was driving the cow in the direction of his own premises. When the women reached the defendant's premises, he had put the cow up in his barn, and had gone on to the house. The women stopped in the public road, in front of defendant's house, between the house and barn. It appears from the evidence of the women that, he invited them to come into the house, remarking that he wanted to see John's new wife, but they declined the invitation, saying they were not dressed for calling. The defendant then sent his wife and daughter out, who renewed the invitation, but it was again de- clined. It appears, however, that the meeting between these ladies were entirely cordial ; the record disclosing that the wife of defendant and the elder Mrs. Scott kissed each other. About 630 Federal and State Criminal Reporter, Vol. L this time the deceased, wlio had left his home, and followed hiss wife and mother, also arrived. The defendant, Rogers, like- wise invited the deceased into his house, but the deceased stated that he did not have time. The defendant then came down to the road where the Scotts were standing. Up to this time there had been no unfriendly words or hostile demonstrations on either side. The defendant seemed friendly towards the Scotts; at least, his manner and treatment of them had been courteous. About this time the elder Mrs. Scott remarked to the defendant: "We want to get our cow." The defendant replied: "You can. have the cow, but you must keep her out of my corn." He then crossed the road to the barnyard gate, ostensibly for the purpose of turning the cow out. The elder Mrs. Scott remarked: "I don't think our cow has eaten any more of your corn this year than your mules eat of our corn last year." Defendant replied: "I don't want to talk foolishness. If you want a fuss you can have it." The defendant then suddenly turned back, crossed the road to his house, procured a shotgun, and came back as far as the platform bridge across a little ditch, where he stopped. The deceased still remained standing with his left hand on the fence, and his right hand in his pants' pocket. _ With the parties in this position, the defendant said to the deceased : "Take jouv- hand out of your pocket." This command was repeated three times. The deceased, according to the testimony of the state's witnesses, made no response, and remained perfectly motionless. The wife of deceased testifies that, the first time defendant told de- ceased to take his hand out of his pocket, the command was spoken in a mild tone of voice, but the second and third times the command was spoken in louder tones; that, at the third com- mand, defendant raised his gun to his shoulder, and fired. The deceased staggered off several steps, fell on his knees, and expired. The testimony of the state is that deceased, prior to the shoot- ing, made no demonstration of any kind, but stood with his hand in his pocket, and said nothing. After he was shot, he made two or three efforts to draw his pistol, but did not succeed. His wife went to him, and removed his pistol from his right pants' pocket. EoGEKS V. State. 537 i and handed it to her mother-in-law, who carried it ofF. The defendant testified in his own behalf, and, in respect of the im- mediate facts of the killing, stated, viz. : That, after the Scott family arrived, the elder Mrs. Scott said they had come to get their cow. "I told them they could have their cow, but they must keep her out of my corn, and then crossed on to the barnyard gate to turn out the cow. The elder Mrs. Scott remarked that she did not think her cow had eaten any more of my corn this year than my mules had eaten of her's last year. I then remarked that I did not want any foolishness, that they must keep their cow out of my corn. By this time I had taken hold of the barnyard gate latch. The elder Mrs. Scott said she did not mean any foolish- ness either; that she was in the road, and would say what she pleased. At this time," the defendant continues, "John Scott- 'was standing a short distance south of the barnyard gate, per- haps fifteen to twenty-five feet from where I stood, eying me with a very hostile look, with his right hand in his right pants' pocket ; 'and I heard something click in his pocket, which I believed to be ;the cocking of a pistol; and, believing and fearing that he in- jtended to shoot me, I turned around, and walked across the road I into my yard, and into the house, and got a double-barrel shot- |gun, and walked back outside of my yard gate, and said to Scott: '*If you want to talk to me take your hand out of your pocket.' He said nothing but still kept his hand in his pocket. I repeated the request to him. He still said nothing, but stood looking at me in the same manner. I repeated the request the third time,, when the deceased hurriedly turned himself about half around,, and commenced drawing from his right-hand pocket a pistol, and had gotten it partly out of his pocket, so that I could see that it was a pistol. I threw my gun up, and fired at him." It is perfectly obvious upon the defendant's own statement that the theory of self-defense is out of the question. It is well settled that the real or apparent necessity to take life which is brought about by the design, fault, or contrivance of the defend- ant is no excuse. Again, even if sufficient cause does exist for reasonable apprehension, but the killing is not done under the Fbd. Cbim. Eep., Vol. I.— 68 538 Federal and State Cbiminal Eeportkk, Vol. 1 fear it is calculated to inspire, or the fear is simulated, this de- fense will not be available. If the defendant had been in any danger, real or apparent, during the colloquy that occurred when he first started to turn out the cow, he shows that he left the scene •of the dang'er, and, going to a place of safety, armed himself with a double-barrel shotgun, and deliberately returned to the scene of the difficulty. "With a loaded gun in his hand, in an angry and overbearing manner, he commands the deceased to withdraw his hand from his pocket. Conceding the deceased did attempt at that moment to draw his pistol, as claimed by the ■defendant, the act of the defendant in killing him would not be justifiable homicide, but would constitute murder. Again, the defendant was at fault in unnecessarily bringing -about the hostile meeting by driving ofF his neighbor's cow, and confining it upon his own premises. The proof also shows that he used the first offensive language towards the mother of the ■deceased; and, before any hostile demonstration had been made towards him, he returned to his house, and armed himself with a -fihotgun. His conduct in ordering the deceased to withdraw his hand from his pocket was wholly unjustifiable, and, in our -opinion, he fired the fatal shot without sufficient or reasonable ground to apprehend danger to himself. The verdict of the jury is well supported by the facts of the case. Affirmed. Supreme Court of Appeals of Yirginia. Filed September 19, 1895. DUFF V. COMMOKl\nEALTH. Indictment— Larceny. An indictment, tinder section 3718 of the Code, must describe the offense created by the statute, either in the terms of the statute itself or in language substantially equivalent thereto. Duff v. Commonwkalth, 539 2. Samb. The gravamen of the offense under this section is that the prop- erty levied upon is fraudulently removed, destroyed, received or secreted vifith intent to defeat the levy or distress. 8. Same. It is not enough to charge that the act was done ■unlawfully or injuriously, but it is necessary either to frame the indictment so as to charge a larceny of the goods, or to follow substantially the language of the statute and charge the act as having been fraudu- lently done. Appeal from a judgment convicting plaintiff in error of re- moving chattels levied upon, in order to defeat the levy. B. B. Campbell and B. N. Bell, for plaintiff in error. E. Taylor Scott, Atty. Gen., for the commonwealth. KEITH, P. — W. P. Duff was indicted in the corporation court of the city of Buena Vista in October, 1893, under section 3Y12 of the Code of Virginia, which provides that: "If any person fraudulently remove, destroy, receive, or secrete any goods and chattels that have been distrained or levied on, with intent to defeat such distress or levy, he shall be deemed guilty of larceny thereof." He might have been indicted for larceny, and proof of the facits set out in the section just quoted would have been sufficient to sustain a conviction for that offense. This court has held that under the statutes declaring that persons guilty of receiving money under false pretenses, embezzlement, receiving stolen goods, proof of the facts constituting these several offense is sufficient to sustain an indictment for larceny. See Pits- nogle's Case, 22 S. E. 351, and authorities there cited, decided at the Wytheville term of this court for 1895. The pleader, how- ever, in this case preferred to frame his indictment upon the lan- guage of the statute, which it was entirely proper for him to do ; but in that case it was necessary to describe the offense created by the statute, either in the terms of the statute itself or in lan- guage substantially equivalent thereto. The indictment in this case charges that a judgment was obtained against W. P. Duff 540 Federal and State CeimijStal EEPOKTEit, Vol. L in the name of Joseph Slough for the sum of ten dollars and fifty cents and one dollar and thirty cents for costs; that upon the judg- ment an execution issued, which was placed in the hand of Silas Nuckols, a constable in and for the city of Buena Yista, who, on the I7th day of December, 1892, levied the said execution upon a horse, a mare, and other property of the goods and chattels of W. P. Duff, and that afterwards, to wit, on the day and year aforesaid, Duff, "with intent to defeat the levy aforesaid, the said mare, horse, and harness, so as aforesaid taken by the said Silas Wuckols, by virtue of the execution before mentioned, and in custody of the said Silas ITuckols, constable, as aforesaid, then being, from and out of custody, and against the will of him, the said Silas ITuckols, then and there unlawfully and injuriously did remove, take, and carry away, the said execution for the sum before mentioned being due, nor any part thereof being paid, and other wrongs to the said Silas ISTuckols then and there did, to the great damage of the said Silas Nuckols, and against the peace and dignity of the conunonwealth of Virginia." The gravamen of the offense created by the section under which the defendant was indicted is that the property was faudulently removed, destroyed, received, or secreted with intent to defeat the levy or distress. It was not enough to charge that the act was done un- lawfully and injuriously, but it was necessary, as we think, either to frame the indictment so as to charge a larceny of the goods, or to follow substantially the language of the statute, and charge the act as having been fraudulently done. To, this indictment there was a demurrer, which was overruled, the case tried, the defendant found guilty, and a fine imposed. "We think that the court erred in overruling the demurrer to the indictment, and for this reason the judgment complained of should be reversed, and the case should be remanded to the corporation court of the city of Buena Vista. Henderson v. State. 641 Court of Criminal Appeals of Texas. Filed December 25, 1895. HENDEKSON V. STATE. 1, Appeal — Criminal law — Statement. Where the statement of facts in a criminal case is not filed within ten days after the adjournment of the court, and no sufficient show- ing is made why it was not filed within the time allowed by law, the court cannot consider such statement. 2. Same. In the absence of a statement of facts, it is impossible for the ap- pellate court to tell what will be the efEect of newly discovered evidence on another trial. Appeal from a judgment convicting defendant of burglary. Mann Trice, for the state. HElsTDEESOlSr, J.— The appellant was tried under an in- dictment charging him with burglary in the nighttime, was con- victed, and given two years in the penitentiary. From the judg- ment and sentence of the lower court, he prosecutes this appeal. This is a companion case with that of Anderson v. State (de- cided at this term), 33 S. "W. 371. The statement of facts in this case was not filed within ten days after the adjournment of court, and no sufficient showing is made why it was not filed within the time allowed by law. There was no diligence, and we cannot consider the statement of facts. There is a motion filed for a new trial on the ground of newly- discovered evidence; and affidavits of certain witnesses are attached thereto, showing what they would testify to on another trial of the case. In the absence of a statement of facts, it is impossible for us to tell what effect the newly-discovered evi- dence would have on another trial of the case; and, moreover, the testimony of none of the witnesses appears to us to be of a material character. When we look to the affidavits of the witness Parker, on whom appellant mainly relies to impeach what he 542 Federal and State Criminal Eeportek, Yol. I. states the sheriff testified to as to the identity of the parties, it does not seem to bear out the contention of appellant. His evi- dence, as disclosed in his affidavit, does not show that the sheriff, Erickson, could not have seen what he testified to, as to the identity of said parties. The most that can be said of his testimony is that he himseK was not in such a position as to have seen them at the time of the alleged burglary, but it does show that the sheriff was in a better position, in that regard, than he was. The indictment and the charge of the court are in proper form, and, there being no errors in the record, the judgment of the lower court is affirmed. Court of Criminal Appeals of Te±as. Filed December 30, 1895. TAYLOE V. STATE. Appeal — Statement. Where no excuse is shown for a failure to file a statement of facts within the time prescribed by law, such statement will not be considered. Appeal from a judgment convicting defendant of assault with, intent to murder. Mann Trice, for the state. HURT, J. — Appellant, having been tried under an indict- ment charging him with assault vsdth intent to murder, was con- victed, and his punishment assessed at two years' confinement in the penitentiary. From said judgment and sentence, he pro- secutes this appeal. The court ia which this case was tried adjourned on ITovember 2, 1895. An order was granted allowing ten days in which to prepare and file a statement of facts. A statement of facts was Geaham v. State. 545 filed on l^ovember 26th, following. No excuse was sliowii for a failure to file same within the time prescribed by law. The- statement of facts, therefore, cannot be considered. See State V. Cook (decided at this term), 33 S. W. 359, and authorities- cited. We have carefully examined the record in this case, and find no error. The judgment is affirmed. Court of Criminal Appeals of Texas. Filed December 11, 1895. GEAHAM V. STATE. 1. floitiCiDH — Instruction — Pkovocation. Where defendant and deceased had been previously on goo(J terms, and the time from the beginning of the difSculty until the- fatal shot -was very short, an instruction that the provocation must arise at the time of the commission of the offense -was held not to- be improper, in view of the further instruction -to consider in con- nection there-with all the facts and circumstances in evidence in. the case. 2. Same— Self defense. Eefusal to give especial charge on manslaughter or self-defense- is proper, where there are no facts in the case authorizing it or in- volving the question of self-defense. Vppeal from a judgment convicting defendant of murder in. the second degree. Kice & Bartlett, for appellant. Mann Trice, for the State. HElSTDEESOlSr, J. — Appellant was convicted of murder in the second degree, and given fifteen years in the penitentiary. Trom the judgment and sentence of the lower court, he prosecutes this appeal. "We will quote so much of the testimony as is necessary for the purpose of presenting the assignments of error in this case. The first witness testified as follows : "I know the defendant, and was- 644 Fedeeal and State Cbiminal Eepoetek, Vol. L acquainted with the deceased. I was present at the time of the shooting of William Hayes by the defendant. Those present were Albert Moore, JSTick Bennett, Thornton Robertson, and Bob. Sexton; and we had just starte"d out to the end of a row, all of us being engaged in hoeing corn together in the same field. "William Hayes, the deceased, was lying down, and the defendant came up to him, and asked for a stump of a cigarette, and when the deceased gave it to him he (defendant) remarked, 'You had better give it to me,' and deceased asked, 'Why?' Defendant replied, 'Because I would have mashed your nuts out with this hoe.' De- ceased replied, 'You wouldn't do a damn thing you say you would.' Defendant then stated, 'No, I wouldn't, because you have got the claps.' Deceased then said, 'The man that says I have got the claps is a damned liar, and would f — k his mother on a cooling board.' A scuffle then ensued over the hoe, and the deceased took it away from the defendant. At this the defendant pulled out his pistol, and told the deceased he had better not say that again, when the deceased repeated it two or three times, the defendant at each time telling him not to repeat it. After the defendant got his gun, the deceased started to the house for his gun. The defendant got in front of him, and tried to prevent him from going to the house. That the defendant stopped him two or three times, and told him not to go to the hoiise; that he would give up his pistol to anybody if he thought he would shoot him, and fight him an even fight. That at this time they were close together, and Levy Stewart walked up to the defendant, to get his gun, when the defendant remarked that he would give his gun to no damned man. That when Levy Stewart walked up the deceased had his hands up, and was hitting the defendant on the left arm, and defendant had his pistol down by his side, and with the other hand was trying to keep William Hayes, the deceased, from hitting him. That they were right close together, and were touching each other on the arms. That just as Levy Stewart walked up to them the defendant stepped back and fired the fatal shot. That they seemed to be on good terms before this trouble, and the defendant didn't seem to get mad until the Graham v. State. 545 •deceased spoke about his mother as above Btated. About a quarter of an hour before the trouble, I heard the defendant say that he was going to kill some son of a bitch before the sun went down. That he did not say who, nor did he seem to be mad. That he had just had a little squabble with Thornton Kobertson that morning, and I don't know to what or whom he referred when he spoke." The testimony of the other eye witnesses was not materially different from this. The appellant complains that the court in its charge unduly restricted the provocation to the very time of the shooting. From the record in the case, we do not understand that there was any trouble between these parties anterior to the one in which the deceased lost his life. Hitherto they appear to have been on good terms, and from the time of the beginning of the difficulty until the fatal shot appears to have been but a very short time, so that reasonably the court's charge with reference to immediate pro- vocation had reference to the provocation which then brought on the difficulty. It is true, the court instructed the jury that the provocation must arise at the time of the commission of the offense, yet the jury were further instructed to consider in con- nection therewith all the facts and circumstances in evidence in the case v. . While the charge of the court in this regard was a proper charge on manslaughter ensuing on the provocation involving insulting words or conduct towards a female (relative of deceased, yet in this case it does not occur to us that the language used bears that import, or that it was so intended by the deceased. The appellant, it appears, offered the first insult. The deceased, in response, told him he was base enough to prostitute his mother. This, in terms, did not imply that this mother was a base woman, but was an insult aimed directly at appellant, and in response to an insult offered deceased by him. There was no occasion to give the special charge No. 1, on man- filatighter, asked by appellant, as there were no facts in the case authorizing it. There was no seK-defense in this case. The appellant was the original aggressor, and, after first insulting the deceased, drew his hoe on him. This was taken, away, from hiw ' Fed. Crim. Ebp., Vol. I.— 60 546 Federal and State Ceiminal Eeporter, Vol- L ^, by tlie deceased. It does not appear that deceased attempted to strike appellant -witli the hoe. Appellant then drew his pistol on the deceased, and deceased proposed to go several hundred yards to his home and get his pistol, and fight him with pistols^ Appellant then proposed to surrender his arms and fight a fair' fight, but, when this was acceded to by deceased, appellant re- fused to give up his pistol, and, with it still drawn on appellant, attempted to prevent him from going to his home, and, on the deceased insisting, shot him down. If there is any question of seK-def ense involved in this statement of the case, we fail to sea it. The difficulty appears to have been sought and brought on by appellant, and persistently followed up until he fired the fatal shot. There was no occasion for the court to give a charge on self-defense at all. The judgment is affirmed. Court of Criminal Appeals of Texas. Filed December 20, 1895. HANISTAMAN' V. STATE. 1. Excise— Sales to minob. W here the state proves the sale to the party to whom the heejf is sold is a minor, the burden is upon the defendant to introduce the ■written consent or permission of the parent or guardian. 3. Same— Instruction. ^ Where the minor did not name the party who sent him when he ■ purchased the beer, an instruction that, if somebody sent him, it is not a sale to the minor, is unnecessary. 8. Cbiminal law— Juror— Objection. The defendant must, at the time the jury is impaneled, object to a juror, if disqualified, and reserve his bill of exceptions to the action of the court. Appeal from a judgment convicting defendant of selling teeif to a minor. Hannamak V, State. ifiiT Doremus & Henderson, for appellant. Mann Trice, for the state. HUET, P. J. — This is a conviction for selling beer to a minor. It was not necessary for the state to introduce the mother of the minor, to prove by her that she had not given her consent. When the state proves the sale, and the party to whom the beer was sold was a minor, the burden is upon the appellant to introduce in evidence the written consent or permission of the parent or guardian. The court's charge was correct in every particular. The facts of this case did not require a charge to the effect that, if somebody else had sent the minor to purchase the beer, it would not be a sale to the minor. Why? Because, in the transaction upon which this conviction was had, the minor expressly states that he did not name the parties who had sent him when he pur- chased the beer. This being the case, there is no conflict in the authorities that it was a sale to the minor. Complaint is made because one of the jurors who sat in the case was obnoxious to challenge for cause. There was no objection made to this juror when he was impaneled. In addition to this, under the circumstances of this case, as presented by the record, the fact that this juror was a witness in the case of State v. Eaton would not disqualify him as a juror in this case. The record does not show that the testimony in both cases was the same, but, be this as it may, we hold that at the time the jury is impaneled the appellant must object, and reserve his bill of exceptions to the action of the court. This was not done. An effort was made to impeach the main witness, Wilson, who was a colored boy. The court properly instructed the jury in regard to this matter, and the jury passed upon his credibility, and by their verdict say they believe him. If what he states is true, the verdict is sustained by the testimony^ The judgment is affirmed. 548' Federal and State Criminal Eeportee, Yol. L Court of Criminal Appeals of Texas. Filed December 30, 1895. MOEEIS V. STATE. 1. Homicide — Negligence— Evidence. On a trial for negligent homicide in rapidly driving the wagon in which defendant was riding, defendant's declarations made a short time after, and at the place of, the injury, as to decedent's acts and his own opinion thereof, was part of the res gestae, and ad- missible to characterize the defendant's driving on that occasion as negligent. 5. Same— Instbuction. A charge npon the question of negligence that "the degree of care and caution required to avoid danger is such as a man of ordi- nary prudence would have used under like circumstances," is sufficient. 3.__ Same. — Notice. Where the facts show that the deceased was riding in defendant's wagon, and that defendant drove his team in a furious and rapid manner, the latter is charged with notice that his acts endangered the life of the deceased. 4. Same— Volition. Whether the deceased was thrown and hurled from the wagon without any volition on his part, but simply on account of the speed of the driving, or whether, in an attempt to get out of the said vehicle, he was violently thrown therefrom, the defendant is, in either event, liable for his negligence in driving at such a furious rate of speed. 6. Trial— Remakes oe counsel. Where the defendant apprehends any injury from the remarks of the county attorney in his closing- argument, it is his duty to ask that the court eliminate the same from the consideration of the jury, before he can be heard to complain. Appeal from a judgment convicting defendant of negligent homicide. A.. J. Mctols, for appellant. Mann Trice, for the state. HEJSTDEESOlSr, J. — The appellant was tried in the court below on an indictment charging him with negligent homicide Morris v. State. 649 in tlie first degree, was convicted, and his punislinient assessed at a fine of seventy-five dollars; and from the judgment of the lower court he prosecutes this appeal. There is nothing in appellant's motion in arrest of judgment. "We think the statutes on the subject sufficiently define "negli- gent homicide." Appellant complains of the action of the court in allowing several state's witnesses to testify as to declarations of appellant, made where the body of deceased was found in the road. It appears that, after the deceased fell or was thrown from the wagon, the appellant drove his wagon a short distance further, and then returned to the place where the deceased was found lying in tlie road in an unconscious condition, and he there remarked "that the God damn fool jumped out of the wagon, and broke his damn-fool neck. If I had a boy that had no more sense than the deceased, I would take him out and kill the damn fool." Appellant was drunk, and commenced to sing, "Old time reli- ■ gion." He said a great many foolish things that the witnesses could not remember. These expressions' were used at the place where the homicide occurred, very shortly afterwards, — could not have been exceeding a few minutes; were a part of the res gestae, and so admissible in evidence. Nor do we think the court erred in refusing to give the special charge asked by appel- lant on this subject. Said evidence, as adduced, was a part of the case, and was looked to, under the charge of the court, not as indicating any malice on the part of appellant, because this was not a charge of malicious killing, but was looked to simply by them as a circumstance to characterize the act of appellant in driving the team on that occasion as negligent. There was no error on the part of the court in failing to further define "negligence" than as given in the main charge. The charge of the court is in the following language: "The degree of care and caution required to avoid danger is such as a man of ordinary prudence would have used under like circumstances. This was in accordance with the language of the statute on the 550 Federal and State Criminal Eeporteb, Yol. L Butject, and is in consonance with the ordinary definition of negligence. ' Nov do we think the court erred in refusing to give the charges asked by appellant, as presented in his bill of exceptions !N"o. 2.. "We do not believe the facts of this case required the court to givcj the special charge asked, hinging appellant's guilt on the con- sciousness on his part that his acts were then endangering the life of deceased. The facts show that the deceased was riding in his wagon, and that he drove his team in a furious and rapid' manner. In such condition, he was charged with notice that his acts did endanger the life of the deceased. ' Appellant also complains that the court should have given his special charges ISTos. 3 and 4, asked, which presented the issue that deceased jumped from the wagon, instead of being thrown out, as charged in the indictment. The charge contained in the indictment, and which constituted the gravamen of the offense, was that appel- lant was negligent in driving the wagon in which deceased was rid- ing in such a rapid manner along the road as to endanger the life of deceased, who was riding in his wagon at the time, and that de- ceased was thrown therefrom. K"o one appears to have seen exactly how the deceased got out of the wagon. After he was out, some one — either the parties in the same wagon, or in another wagon that was racing with appellant's — noticed it, and, on attention being called to the fact, they went back a short dis- tance, and found the deceased lying in the road, dangerously hurt, and in an unconscious condition. The gist of the charge against appellant was rapid and negligent driving. The charge in the indictment is that he was thrown from the wagon. Evi- dently he was hurled to the ground with a great deal of force, and' whether his being so thrown and hurled from the wagon was with- out any volition on his part,but simply on account of the speed! of the driving, or whether, in an attempt to get out of said! vehicle, he was violently thrown therefrom, it occurs to us, isi immaterial. In either event the appellant was liable for his negligence in driving at such a furious rate of speed. Whart, Horn. §§ 109, 366, 374. We would further observe that it ia EOBINSON V. DlCKERSON. 551 a familiar principle of the law of homicide that, as to the allega- tion of the instrument by which death is inflicted, there is no Tariance where the proof shows that another instrument than that alleged was one causing the same character of wound or injury; so that it would appear to be immaterial whether he was thrown from the wagon wholly without any volition on his part, or thrown from it while exercising a volition to get out of the vehicle to save himself on account of the rapid and dangerous speed at which it was being driven. As to the remarks of the county attorney in his closing argu- ment, if the appellant apprehended any injury therefrom, it was his duty to ask that the court eliminate the same from the con- sideration of the jury, before he can be heard to complain. The questions in this case, we think, were fairly submitted to the jury, and from the evidence they believed that the appellant was negligent, under the circumstances, in driving his team at a furious rate of speed while the deceased was riding in his wagon, and that such rate of speed created an apparent danger, causing the death of deceased, and that the same was negligence on his part. The verdict of the jury is, in our opinion, supported by the evidence in this case, and the judgment should be affirmed. Supreme Court of Alabama. Filed Novem'ber 28, 1895. EOBINSON v. DICKEESOIT. 1. Ckiminal lAW— ■PoninsR acquittal. ' An order by a magistrate on a preliminary examination is not a tar to a second preliminary examination. 13, Same— Bail. Where defendant, on a preliminary examination for murder before a justice of the peace, is admitted to bail but fails to give 652 Federal and State Criminal Eeporter, Yol. I. bail, and subsequently on a preliminary trial before a city judge, i» committed to jail without bail, he is not entitled to be released, after indictment for murder, on giving the bail fixed by the jus- tice of the peace. Appeal from a judgment denying a writ of mandamus. C. C. WMtson, for appellant. Brown & Dwyer, for appellee. COLEMAIT, J. — Upon an affidavit made liefore a Justice of tlie peace charging the petitioner with the offense of murder, the justice issued a warrant for his arrest, and, upon preliminary examination, fixed his bail at $1,000. In default of making the bond, petitioner was committed to jail. Subsequent to the arrest upon the warrant issued by the justice of the peace, affidavit was- made before the judge of the city court of Talladega, charging the petitioner with the same offense, and the judge issued a war- rant of arrest for the petitioner. A second preliminary trial was had, which resulted in the commitment of the petitioner to jail without bail. At the following term of the circuit court the grand jury indicted the defendant and two others, jointly, for murder in the first degree. The term of the court expired,, and court adjourned, without any order having been entered in the cause further than the granting of a severance to petitioner. Several months afterwards, petitioner executed a bond in the sum of $1,000, with sufficient security, as prescribed by the justice of the peace, and offered it to the sheriff, and demanded bail. The sheriff refused to admit the petitioner to bail. He then applied to the circuit court judge for a writ of mandamu? to compel the sheriff to accept the bond, and admit him to bail. The circuit court judge denied the writ, and petitioner appealed to this court. There was no question made as to the sufficiency of the securities to the bond offered as bail. The first question is whether the judge of the city court had Quriadiction to hold a second preliminary trial. Except for the EOBINSON V. DiCKERSON. 555 constitutional riglit and statute law, whicli declare tliat a person shall not be put in jeopardy twice for the same offense, tliere does not seem to be any legal prohibition of more than one prosecu- tion, unless the question falls within the principle that final judgments of courts of competent jurisdiction are conclusive upon all other courts of no higher jurisdiction. Conceding, then, that the justice of the peace and the judge of the city court, as- magistrates, had equal and concurrent jurisdiction, the ques- tions are whether a party is in "jeopardy," within the meaning of that term, when he is put upon a preliminary trial before a magistrate, who has no jurisdiction to try him for the offense. Clearly not. It is not necessary to city authority or present an argument on this proposition. ISTo order of the committing court,, whether it discharges or commits the defendant, will support a plea to acquit or convict. Will such an order bar a second pre- liminary examination? There is no statute which has declared such to be its effect. It is contended that, unless this is the rule, a party may be subjected to as many arrests as there are magis- trates in the county. This is the argument of "ab in con- venienti." But it is admitted, and that is the law in this stat& (Crawlin's Case, 92 Ala. 101; 9 South. 334; Mcholson's Case, 72 Ala. 176), that, if the defendant be discharged upon prelim- inary investigation by the magistrate, he may be arrested on a second warrant. If this be true, under this rule he is subject te- as many arrests as there are magistrates in the county, at least until one is found who is willing to commit or require bail. But,, if the order of the magistrate is final and conclusive on other- magistrates, it is because of the jurisdiction to make a final order, and not because of the particular conclusion reached by the jus- tice of the peace. The order would be equally final and binding, whether the defendants be discharged or committed. There is no answer to this proposition. It would also conclude a warrant issued upon the finding of a coroner's inquest, for this merely Eocures a preliminary investigation. Cr. Code, § 4809. There being no statute on the subject, what is the rule at common law? iTn the case of Clark v. Cleveland, 6 Hill, 349, in a well-cou- Tes, Crim. Bbp., Vol. I.— 70 ^54 Federal and State Criminal Reporter, Vol. I. ■sidered opinion by Cowen, J., it was held that a second arrest Tinder the same warrant was not illegal. In a subsequent case (Doyle V. Russell, 30 Barb. 300) the opinion in 6 Hill, 349, supra, was criticised so far as that case upheld the validity of the •second arrest on the same warrant; the court being of the opinion that the first warrant had expended itself by the first arrest and bail. There did not seem to be any question as to the right to arrest on a second warrant. In 2 Hawk. P. C. c. 13, section nine seems to support the view expressed in 30 Barb. 300, supra, as to the invalidity of a second arrest on the same warrant. We •cannot find anywhere in the common law, nor in decisions in the absence of statute, the doctrine that an order by a magistrate on preliminary examination is a bar to a second preliminary exami- nation. The old books abound with cases for malicious prosecu- tion, growing out of unnecessary or repeated arrest. The law -affords redress to the arrested party in all such cases. There are cases where parties were held to bail with surety in civil actions. In such cases, when the bail bond was directed to stand as secu- rity for the debt, it was held that a second arrest would not lie, without surrendering the security. The reason was that, the debtor having obtained security for his debt by the writ and. bail, he could not, in justice and good faith, hold the security, •and by the writ imprison the debtor, or force him to furnish ad- ditional security. The creditor was required to show some sufiicient ground for. the second arrest. Wilson v. Hamer, 1 Dowl. 248. We have discussed the question the theory that the defendant was arrested the second time in a legal sense, but we are of opinioa •such is not the case. A rearrest implies that the party had been released, either on bail or by discharge or by the voluntary act of the person having him in legal custody. In the case before us the petitioner was in jail, in default of giving the bond, botli when he was brought before the city judge for preliminary in- vestigation, and when the indictment was returned into covirt. There were no securities whose rights could be interfered with by the action of the committing court. When on bail, the persoa EOBIKSON V. DiCKEKSON. . 555 charged is in tlie custody of his sureties. They have the right to surrender their principal at any time, and have him committed to jail. We cannot perceive any good reason for holding that the sureties may relieve themselves from the rsponsibility of his custody by putting him in jail, and at the same time hold that the state which has him in custody may not retain him by virtue of a second commitment, or an indictment preferred against him. Section 478Y of the Criminal Code provides that, when a party has been discharged on habeas corpus, he cannot be arrested again for the same offense, unless he has been indicted, or unless he was ■dischargd for defect of proof, and was again arrested on suiScient proof, — a provision wholly unnecessary if the order discharging the defendant afforded protection against rearrest without the statutory provision. By implication, the statute admits he may be rearrested after indictment. There is a very satisfactory reason for this rule in habeas corpus cases. The jurisdiction to hear and fix bail in habeas corpus cases is conferred by statute on certain officials, who are presumed to be more learned in the law, and further removed from and less liable to be moved by improper influences, than many of the officers having jurisdiction for com- mitments. The case of Ingram v. State, 27 Ala. 19, when tested by the facts stated in the opinion, is not authority to the contrary. The opinion rests solely upon the ground that a justice of the peace has no authority to issue a warrant of arrest upon the ground that the bail taken by the defendant was insufficient or had become insufficient. The authority of a justice of the peace is prescribed by law, and he has no other in matter of arrest. There is no provision which gave him jurisdiction to issue a warrant upon the facts and for the purposes stated, and his action was null and void. Neither is the case of Skelton v. Eobinson (Ala), 16 South. 74, an authority. In the case at bar the city judge, by a subse- quent order upon preliminary examination, committed peti- tioner, who had not given bail, to jail without bail. If we are right in our conclusion that the city judge had jurisdiction, this 556 Federal and State Criminal Eepoeteu, Vol. L commitment was valid, and justified the retention of petitionei^. until admitted to bail by order of the judge of the circuit court, indorsed upon the indictment, or by habeas corpus. The pur- pose of a preliminary examination in all cases is to secure the presence of the prisoner, to answer such charges as may be brought against him; and by statute it is declared that "the essence of all undertaking of bail is the appearance of defendant at court." The bond is forfeited if the defendant does not appear, although the grand jury may not prefer an indictment. After indictment a bench warrant may be issued by the court, or capias by the clerk, unless otherwise provided by the statute, as is the case in some of the states. If the party is on bail, and he is arrested by virtue of a bench warrant or capias legally issued, the sureties are discharged. If the condition of the bond required, the appearance of the principal at a designated term, and the principal appeared, the condition was performed, and there could be no forfeiture. If the condition required the principal to attend from term to term until discharged by law, his mere attend- ance at the first term does not fulfill the condition. The condi- tion required his attendance from term to term, until discharged by law, or unless there was a discontinuance of the charge. These- provisions and rules as to bail do not, and were not intended to, interfere with the rules of law and proceedings after indictment. It requires statutory provision to prevent the issue of a bench, warrant or a capias on indictment. The case of Smith v. Kitchens, 51 Ga. 158, is a direct authority on the question; so is- the case of Ex parte Cook, 35 Cal. 107. "We know of no case at common law nor decision of a state court, unless predicated on statute, where the right and duty to arrest after indictment found was ever questioned. Section 4395 of the Criminal Code pro- vides that, after indictment has been returned, the court may order any defendant who is present, and who has not been arrested,, to be taken into custody without process. Section 4396 of the Criminal Code provides that "a writ of arrest must be issued by the clerk forthwith after the finding of the indictment, against each defendant, who is not in actual custody or who has not been. EOBINSON V. DiCKEESON. 557 bailed," etc. Section 4411 provides that "circuit and city judges may, during tlie term time, by order entered on tlie minutes, fix the amount of bail required in all cases of bailable felonies, pend- ing in the court," etc. Certainly, if the judge omits to comply witb this provision, no advantage accrues from such, omission to any person in actual custody; nor does this section authorize him to fix the amount of bail for a defendant indicted for mur- der in the first degree. Under the facts, the clerk was not re- quired, even if he had the authority, to issue a capias under sec- tion 4396, supra, for the defendant wd,s in actual custody, — ^in jail, — and had not been bailed. Nor was it a case which called for the iuterposition of the court under section 4395, supra, for the defendant was not present, and had been arrested, and was already in custody. The failure of the court to enter an order under this section, in a case where it might be entered, could avail the defendant nothing. Prima facie, under an indictment for murder, the offense is not bailable, and this presumption is not overcome by any order on a preliminary trial. Where a party under indictment for murder in the first degree sues out a writ of habeas corpus, upon production of the indictment the defend- ant must overcome the presumption of the law by legitimate evi- dence and the order of the magistrate prescribing bail is not legal evidence in the case. Ex parte Ehear, 77 Ala. 92 ; Abernathy v. State, 78 Ala. 411. Under no aspect of the law, whether con- sidered with reference to the commitment by the city judge, or the rights of petitioner after indictment found for murder in the first degree, is he entitled to the writ of mandamus. Skelton V. Kobinson must be overruled. Mandamus denied. HEAD, J., dissents from the opinion so far as it overrules the case of Skelton v. Eobinson. 558 Federal and State Criminal Eeporter, Vol. L Court of Criminal Appeals of Texas. riled December 20, 1895. EKAZOS V. STATE. 1. 'WiTNDSS— Credibility. Where defendant, as a witness in his own behalf, testified that h» did not know that he was under indictment for other offenses, the indictment therefor was admissible in order to enable the jury to pass upon the defendant's credibility as a witness. 2. Appeal— Exceptions. Where a bill of exceptions fails to show the object or purpose of testimony, and its relevancy is not apparent to the appellate court,, the objection thereto will be held to have been properly sustained. Appeal from a iudgment convicting defendant of theft. Mann Trice, for tlie State. HENDEESOiN", J. — Appellant was convicted in tlie district court of Harris county of the theft of property over the value of fifty dollars, and his punishment assessed at two years' confinement in the penitentiary, and he prosecutes this appeal. Appellant complains that the court permitted the district attorney to offer in evidence indictments pending in the district court of Harris county for criminal offenses committed by him. Appellant was introduced as a witness in his own behalf, and was. asked whether he was under indictment for said offenses or not. Appellant admitted that he had been served with some papers while he was in jail, but, if he was indicted for these offenses,, he did not know it. Appellant is shown to have objected to the questions being propounded, on the ground that the indictments were better evidence. The indictments were subsequently introduced in evidence, and were properly limited by the court in the charge to the jury, the court stating that said indictments. , could only be considered in order to enable them to pass upon the credibility of the witness. In this there was no error. The appellant complains that the court sustained the objec- tion of the district attorney to the question asked Ella Brazos, the wife of appellant, to the effect that, when the appellant came Jackson v. State. 65^ up from Galveston, lie left some ducks at the house of one Caldwell, and that she called at said house and took the ducks away. To this it is sufficient to say that the bill fails to show the object or purpose of the testimony, and, moreover, it doe& not occur to us how said testimony was relevent in this case. May V. State, 25 Tex. App. 114. Appellant also complains that the state was permitted to prove- by the officer who arrested him that he at the time took from appellant a pistol, which was identified by one Winkler as w pistol that had been stolen from said Winkler. No reason is. assigned in the bill of exceptions why this testimony was not admissible. In addition to this, it is shown by the explanation of the court to the bill of exceptions that this testimony was elicited by the appellant, and of course he cannot complain; and moreover the court, in its charge to the jury, eliminated all testi- mony in regard to the pistol. These are all the bills of exception that require notice front us. There being no errors ia the record, the judgment of the- lower court is affirmed. Supreme Court of Alabama. Filed June 14, 1895, JACKSOlsr V. STATE. 1. AssATTLT — Instructions. An instruction, which, authorizes and requires the jury to acquit if they are unahle to tell with absolute certainty that the criminat- ing evidence presented the truth, or if they have any doubts of" guilt, whether a reasonable doubt or not. Is properly refused. 2. Same. Where an assault and battery or simple assault are, in addition to- assault with intent to murder, charged in the indictment, an in- struction that the jury must believe from the evidence beyond a reasonable doubt that the defendant intended to till the person ■upon whom the assault was alleged to have been committed be- fore they could find him guilty as charged in the indictment, is prop- erly refused. Appeal from a judgment convicting defendant of assault witb intent to kill. 660 Federal and State Obiminal Eepoetee, Vol. L McCLELLAl^, J. — Several exceptions were reserved to the rulings of the trial court on the inadmissibility of testimony. They have each been considered by the court, and found to be so obviously without merit that a discussion of them is unneces- sary. The other exceptions go to the refusal of the court below to give two charges requested by the defendant. The first of these is as follows: "The court charges the jury that, if two theories are disclosed by the evidence in this case, and according to the evidence supporting one theory he would be guilty, but according to the evidence supporting the other he would be in- nocent, and the jury cannot tell which testimony presents the truth, then they should give the prisoner the benefit of the doubt, and accept as true that evidence which is consistent with his innocence, and find him not guilty." One infirmity of his re- quest, sufiicient to justify its refusal, is that its manifest tendency, to say the least, was to authorize and require the jury to acquit if they were unable to tell with absolute certainty that the crimi- nating evidence presented the truth, or if they had any doubt of guilt, whether a reasonable doubt or not. The other charge to the refusal of which an exception was reserved was to the effect, the offense charged being assault with intent to murder, that the jury must believe from the evidence beyond a reasonable doubt that the defendant intended to Mil the person upon whom the assault was alleged to have been committed before they could find him guilty "as charged in the indictment." This instruc- tion would have been proper, but the indictment charged only the offense of assault with intent to murder. Intent to kill is a necessary element in that offense, but it is not necessary to assault and battery or simple assault, which latter offenses are also charged in this indictment, and the effect of the charge, had it been given, would have probably been to mislead the jury the conclusion that there could be no conviction under this in- dictment unless the defendant had the intent to Mil. Lundy v. State, 91 Ala. 100; 9 South. 189; Horn v. State, 98 Ala. 23; 13 South. 329; Smith v. State (Ala), 15 South. 843. Affirmed. INDEX. ADULTEEY. 1. Evidence. Such offense is but seldom, in its entirety, capable of direct positive proof, but it is generally to be inferred from facts and circumstances leading to it as a necessary conclusion. Brown v. State (Sup. Ct. of Alabama), 439. 2. Instruction. An instruction that, if the defendant and the woman agreed to go to Mobile and live in that condition, there can be a conviction in the county of the agreement, is errone- ous. Id. .3. A refusal to charge that "before the Jury can convict the defendant they must be satisfied, to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion, and, unless the jury are so convinced by the evidence of de- fendant's guilt that they would each venture to act upon that decision in matters of the highest concern and important to his own interest then they must find the defendant not guilty," is error. Id. 4. Section 4012. Section 4012 of the Criminal Code is directed against a state or condition of cohabitation which the parties intend to continue so long as they may choose, as distinguished from a single act or occasional acts of illicit sexual intercourse. Id. 5. Similar acts. When it is material to show the intent with which the par- ticular act or acts charged was done, evidence of another similar act or other similar acts, though in itself or of them- selves constituting a criminal offense, may be given. Id. Fed. Cbim. Rep., Vol. 1—71 562 INDEX. C. On tlie trial of an indictment for adultery, it is admissibl© to show that, subsequent to the finding of the indictment, the parties were living in adultery, if the time intervening was not of such length as to repel all reasonable inference that there was between the two conditions continuity or con- nection. Id. _APPEAL. 1. Affirmance. A judgment of conviction will be affirmed in the absence- of a statement of facts with the record of the case, where the indictment is correct and the charge such a one as .is proper to be given under a statement of facts provable in the case Favors v. State (Ot. of Criminal App. of Texas), 167. 2. A regardful examination of the record as presented discloses- no erroneous ruling of the court on the admission or rejection of evidence, for which judgment of conviction should be re- versed. State V. Isaacson (Sup. Ct. of S. Daliota), 311. 3. Bail. A recognizance which states that defendant was convicted of "unlawfully carrying a pistol," states no offense. Black- shear V. State (Court of Crim. App. of Texas), 144. 4. A recognizance to abide the judgment of a "court of appeals,"' is defective. Id. 6. Bastardy proceeding. ISTeither section 6143 of General Statutes of 1894, nor any- other statute regarding supersedeas on appeals in civil actions,, applies to an appeal from a judgment in bastardy proceedings. State V. Allriob (Sup. Ct. of Minnesota), 344. 6. Criminal law — Statement. AVhere the statement of facts in a criminal case is not filed within ten days after the adjournment of the court, and no sufficient showing is made why it was not filed within the time allowed by law, the court cannot consider such state- ment. Henderson v. State (Ct. of Criminal App. of Texas), 641. INDEX 563 7. In the absence of a statement of facts, it is impossible for the appellate court to tell what will be the effect of newly discovered evidence on another trial. Id. 8. Denial. A motion for a new trial Is properly denied where the notice does not particularly state any error whatever. State v. Pilgrim (Sup. Ct. of Montana), 4. 9. Evidence. Where there is some evidence conducing to establish the guilt of the accused, a verdict of guilty be distiirbed on appeal. Cole V. Commonwealth (Ct. of App. of Kentucky), 126. 10. Exceptions. Where a bill of exceptions fails to show the object or pur- pose of testimony, and its relevancy is not apparent to the appellate court, the objection thereto vdll be held to have been properly sustained. Brazos v. State (Ct. of Crim. App. of Texas), 558. 11. Exceptions — Waiver. Where an exception, though the refusal to ctarge Is excepted to, is not set out by the appellant in stating his case on appeal, it is waived. State v. Blankinship (Sup. Ct. of N. C), 377. 12. First instance. "''^' "■■"■ It is too late on a motion for a new trial to urge objection to the judge's charge, when no instructions on the point were asked, and no exceptions made. State v. Vickers (Sup. Ct. of Louisiana), 184. 13. Harmless. The exclusion of a proper question is no ground for re- versal, where the same fact appears from the evidence admitted as the excluded testimony was intended to establish. State V. Kowolski (Sup. Ct. of Iowa). 14. The case will not be reversed for error in allowing an Im- proper question to be answered, where such answer is unim- 56i INDEX. portant and does no harm. People v. O'lTeill (Sup. Ct. of Michigan), 337. 15. Instruction. The court commits no error in refusing charges requested by a party which are mere repetitions of charges already given at his request. State v. Murphy (Sup. Ct. of Alabama), 252. 16. Mandamus. Where no bond is filed or money deposited by appellant within the time prescribed at law or at all, the case remains precisely as it was before the appeal -was attempted. Bolden' V. State (Sup. Ct. of Washington), 375. 17. ITew trial. Before the adoption of the Penal Code of 1895, an appeal from a judgment brings up for review the order denying the defendant's motion for a new trial. State y. Pilgrim (Sup. Ct. of Montana), 4. 18. Offer to prove. Where a party state to the court certain facts which he pro- poses to prove by a vritness, some of which are legal and others are inadmissible, the court does not commit a reversible error by sustaining an -objection to the introduction of the facts as an entire statement. Murphy v. State (Sup. Ct. of Ala-^ bama), 251. 19. Pauper. The fact that the appellant Is a pauper does not, of itself, relieve him from the necessity of giving an appeal bond. Bokien v. State (Sup. Ct. of Washington), 375. 20. Keasonable doubt — Good character. Good character cannot be. dissociated from the other facts in the case by referring to it alone as being sufficient to gene- rate a doubt; good character of the defendant is a fact in the case, in the light of which the other facts must be weighed. Mui-phy V. State (Sup. Ct. of Alabaana), 252. INDEX. 565 21. Eecord. In the absence of a statement in the abstract that it con- tains all the evidence, the court cannot consider the objection that the verdict is not supported by the evidence. State v. Strohbehn (Sup. Ct. of Iowa), 378. 22. Where the record is fully presented, but without briefs or argument, it is the duty of the court to examine the record. State V. Cox (Sup. Ct. of Iowa), 379. 23. Where, upon an appeal from the district to the supreme court, the record does not contain the evidence or instructions of the district court, and no error is discovered, the judg- ment will be affirmed. State v. Eifert (Sup. Ct. of Iowa), 403. , ;., ',', 24. Where tihe defendant undertakes to explain his connec- tion or want of connection, with the deposit, and to show that it was received without his knowledge and against his will, any line of cross-examination which tends to contradict his testimony in chief, or which more fully discloses his con- nection with the deposit, is proper. Id. 25. Statement. Where no excuse is shown for ^ failure to file a statement , of facts within the time prescribed by law, such statement will not be considered. Taylor v. State (Ct. of Criminal App. of Texas), 542. 26. Supersedeas bond. The condition of a supersedeas bond on appeal from such a judgment should be that defendant will pay all costs and charges which may be awarded against him on appeal, and, if the judgment is affirmed or the appeal dismissed, that he will abide by and perform the judgment appealed from, or surrender himself a prisoner, in execution of such judgment. State V. AUrick (Sup. Ct. of Minnesota), 344. 2Y. Waiver. Defects in a motion for a new trial are not waived by a 566 INDEX special appearance for the purpose of moving for a dismissal of the motion for such defects. State v. Pilgrim (Sup. Ct. of Montana), 4. 28. Though the cross-examination is improper, the defendant waives any error connected therewith, by testifying, in the further progress of the trial, to the same facts without objec- tion. State V. Eifert (Sup. Ct. of Iowa), 403. ASSAULT. 1. Instruction. An instruction, in such case, that malice means 'bad temper, high temper, or quick temper, and if the injury was inflicted from malice, then the jury should convict the defendant, is erroneous. State v. Long (Sup. Ct. of Worth Carolina), 360. 2. The rule, forbidding the use of excessive force, applies to school teachers and all in like situations, as it does to all other persons. Id. 3. An instruction, which authorizes and requires the jury to acquit if they are unable to tell with absolute certainty that the criminating evidence presented the truth, or if they have any doubts of guilt, whether a reasonable doubt or not, is properly refused. Jackson v. State (Sup. Ct. of Alabama), 559. 4. Where an assault and battery or simple assault are, in addi- tion to assault -with, intent to murder, charged in the indict- ment, an instruction that the jury must believe from the evi- dence beyond a reasonable doubt that the defendant in- tended to kill the person upon whom the assault was alleged to have been committed before they could find him guilty as charged in the indictment, is properly refused. Id. 5. Whipping scholar. Where a teacher inflicts upon a pupil such punishment as produces or threatens lasting mischief, or where he inflicts punishment, not in the honest performance of duty, but under INDEX 567 tbe pretext of duty to gratify malice, he is guilty of assault. State V. Long (Sup. Ct. of jSTorth Carolina), 360. ■6. With, intent to rape — Sufficiency of evidence. The evidence, in this case, was held sufficient to convict defendant of assault vyith intent to commit a rape, and further held that, if defendant acted toward prosecutrix, before go- ing upstairs, as she testified he did, the crime was then com- plete, though she consented to what transpired afterwards. State V. De Long (Sup. Ct. of Iowa), 303. ASSAULT AlfD BATTEKY. Proof. The evidence in a prosecution for malicious shooting witli intent to kill was held sufficient to warrant a conviction. Sapp V. Commonwealth (Ct. of App. of Kentuckey), 127. ATTGRNEYS. Disbarment. Any information for the removal of an attorney on the ground of his having been convited of a misdemeanor involv- ing moral turpitude, which simply charges that he has been convicted of a misdemeanor, but does not allege that any moral turpitude was involved in the acts constituting such crime is insufficient. State v. Bannon (Sup.Ot. of Oregon), 29. BAIL. 1. Bond — Surrender of Defendant. Under section 4587 of the Code, a bond on appeal from a judgment imposing a fine or imprisonment until it was paid, condition for the payment of said fine and the surrender of defendant, is not discharged merely by the surrender and imprisonment of defendant. State v. Meier (Sup. Ct. of Iowa), 1. i 2. Where, iinder such a bond, the defendant is surrendered and imprisoned, an order of the governor, suspending the imprison- ment does not estop the state from suing on the bond. Id. 568 INDEX BANKS. 1. Debtor and creditor. The law presumes tliat tlie relation existing between a banls and its customer is that of ordinary debtor and creditor. Nichols V. State (Sup. Ct. of jSTebraska), 487. 2. Deposit. " "Whether a deposit made in a bank by its customers is a gen- eral or special one is a question of fact to be determined from the intention of the parties, but, in the absence of evidence, the law presumes such a deposit a general one. Id. 3. Insolvent. '" The object of the enactment of sections 63Y, 638, Comp. St. 1895, was to prevent an insolvent banking association from borrowing money, — that is, receiving money on deposit, and becoming debtor therefor; but said section should not be so construed as to render an officer of a banking association guilty of a felony for permitting a debtor of the association to pay his debt thereto, even though the association is at the time, to the officer's knowledge, insolvent. Id. 4. ]Sr. was indicted for receiving a deposit in a bank of which he was cashier, knowing at that time the bank was insolvent. The state, to sustain the indictment, offered evidence which tended to show the existence of the bank that N. was its cashier; that it was insolvent, to his knowledge, on the 18th of February, 1895; and that on said date one M. deposited in said bank $11. IST. then offered to prove that when Ml made such deposit he was overdrawn at the bank $15.30. The court excluded the offer. Held, that the evidence offered tending to show that the deposit made by II. and accepted by ]Sr. was intended by the parties to apply towards the' payment of M.'s debt to the bank; and that, so long as IST. remained lawfully in charge of the bank as its cashier, he had the right to accept money in payment of any debt owing by any per- son to the bank; and that, therefore, the court erred in exclud- ing the eyidence offered. Id. INDEX. 56& 5. Presumption. Where a customer of a bank, wlio lias overdrawn, and tlius stands indebted in open account to the bank, make a general deposit therein, the presumption of law is that such deposit was made and received towards the payment of such over- draft. Id. BANKS AND BANKING. 1. Principal and agent. A person whose agent, without his knowledge or authority, and in discharge of his express instructions, receives and accepts for his principal money as a deposit, will not by such act be rendered liable criminally for knowingly receiving and accepting the money, but the principal may, after coming into possession of all of the facts, so ratify the act theretofore done, as to make it binding upon himself and the basis of a criminal liability. State v. Eifert (Sup. Ct. of Iowa), 403. 2. When the principal, in such case, after full knowledge of all the facts, fails to repudiate the acts of his agent and takes no steps looking to a return of the deposit to the depositor, he then knowingly receives and accepts the deposit. Id. , BURGLAEY. Adjoining dwellllng. Where two stores which have a stairway between them, leading up from the street to the second story and descending at the rear, and the second story of each of which is occupied as a dwelling and is accessible only from the stairway, having no entrance from the stores, are within the provisions of sec- tion 9134 of 2 How. Ann. St. People v. Vau Dam (Sup. Ot. of Michigan), 24. COMPLAINT. • Constructive contempt. A complaint is insufficient as the foundation of proceedings for constructive contempt which fails to state the facts consti- tuting the alleged offense, and showing that the act of the ac- cused amounts to a fraud upon the court, or tends to hinder Vru. Crtm. Rep. , Vor,. 1—73 ■S70 INDEX or embarrass it In the administration of justice. Cooley T. State (Sup. Ct. of Nebraska), 520. CONSTITUTIOITAL LAW. Unlawful discrimination. Act 'No. 14: of 1893, is not in conflict with the section of the United States Constitution prohibiting a state from discrimin- ating against the citizens of other sta.tes. People v. Gay (Sup. Ot. of Michigan), 36. CEmrN'AL LAW. 1. Abortion. "" To constitute abortion, it is not necessary that tlue foetus should have had vitality. Commonwealth v. Surles (Sup. Judicial Court of Mass.), 212. , ■2, Accomplice. The court Is not bound to advise the jury that generally it Is unsafe to convict on the testimony of an accomplice, where such testimony is uncorroborated, though courts sometimes do so. Commonwealth v. Bishop (Sup. Judicial Ct. of Mass.), 411. i S. Where the court mstructs the jury that the witness, who furnished the principal evidence for the government, was au accomplice who had turned states evidence to avoid the con- sequences of his part in the affair, and that they were to take the circumstances into consideration in weighing his testi- mony, it may, in view of the above rule, refuse a request on the part of defendant for fuller instructions as to the uncor- roborated testimony of an accomplice. Id. 4. Amendment. "■ The indorsement by the grand jury of an Indictment as a "thru" bill instead of a "true" bill, is merely error in matter of form, and the court may cause such indictment, on objection thereof, to be forth-with amended. State v. Williams (Sup. Ct. of Louisiana), 202. INDEX . 571 S. Appeal. Affidavits presented as evidence on a tearing in proceedings in a case in tlie district court will not be examined in this court unless made of tlie record by being embodied in a bill of exceptions. Kortb v. State (Sup. Ct. of Nebraska), 509. €. Appeal — Harmless error. An error, in permitting tbe owner of stolen property to tes- tify as to its value, without first qualifying, is no ground for reversal, wbere the uncontradicted evidence shows its value to have been sufficient to render the crime a felony. Kial v. State (Ct. of Criminal App. of Texas), 154. 1. Appeal — Jurors. The accused on appeal cannot assert that the Jurors were not sufficiently informed as to the case to be tried to enable them to intelligently answer the questions on their examination, unless it is so stated in his bill of exceptions. Commonwealth V. Surles ((Sup. Judicial Ct. of Mass.), 212. 8. Upon such examination, it is error to refuse to put the jurors questions which add nothing material to the questions already put. Id. 9. Assistant counsel for prosecution. Attorneys, whose alleged employment by defendant is not complete, but merely conditional, and who had made no in- vestigation of his defense and sustained toward him no confi- dential relations growing out of not consulting mth him in reference to the case, may be allowed to appear as assistant counsel in the case in behalf of the state. State v. Lewis (Sup. Ct. of Iowa), 380. 10. Bail, Where defendant, on a preliminary examination for murder before a justice of the peace, is admitted to baid but fails to give bail, and subsequently on a preliminary trial before a city judge, is committed to jail without bail, he is not entitled to bo released, after indictment for murder, on giving the bail fixed 672 INDEX. "bj the justice of the peace. Kobinson v. Dickerson (Sup. Ct. of Alabama), 551 11. Change of venue. An application for change of venue because of prejudice and threats of mob violence was held, in this case, properly denied. State v. "Weems (Sup. Ct. of Iowa), 282. 12. The refusal of a change of venue on the ground of preju- dice, where the examination of the jurors shows no error in determining their competency by reason of opinions formed, is harmless. State v. Hamil, (Sup. Ct. of Iowa), 301, 13. Collateral attack. On a prosecution for larceny by a bailee, objection cannot be made to the regularity of the appointment of the guardian who made the demand, where the court making the appoint- ment has jurisdiction of the subject-matter to the parties. State V. Thompson (Sup. Ct. of Oregon), 239. 14. Comments of counsel. If a statement of the state's counsel is improper, special instruction should be requested by the defendant, directing the jury to disregard it. Miller v. State (Ct. Crim. App. of Texas), 157. 15. Complaint. A written complaint in a prosecution before a justice of the peace is unnecessary. People v. Bennett (Sup. Ct. of Mich- igan), 28. 16. The district court, as well as the justices, has the power to receive complaints for maintaining nuisances. Commonwealth V. Meskill (Sup. Judicial Ct. of Mass.), 416. 17. Confessions. Where confessions of the defendant are offered in evidence on a criminal prosecution, and it is claimed that they were not voluntary, the preliminary proof as to whether they were ob- tained by the influence of hope or fear may, if the evidence is INDEX. 573 conflicting, be submitted by tbe court to tbe Jury, under in- structions to disregard the evidence, if satisfied that the con- fessions were involuntary. Burdge v. State (Sup. Ct. of Ohio), 428. 18. Continuance. A defendant, upon his firsit application, is entitled to a continuance on the ground of the absence of material witness, where due diligence is shown, though there are other witnesses present who were with the absent witness at the time of the occurrence about which they are expected to testify. Clark v. State (Ct. of Criminal App. of Texas), 148. 19. A defendant, who fails to take any steps to secure the testi- mony of a witness living in another county within fifteen days before the trial, is entitled to a continuance on account of the absence of such witness. Eial v. State (Ct. of Criminal App. of Texas), 154. 20. An application for a continuance for absent witnesses to prove an alibi should show that the witness had opportunity to see and know the facts expected to be proved by them. McCullock V. State (Ct. of Crim. App. of Texas), 164. ' 21. A conviction will not be disturbed because of a refusal for a continuance at the first term, while it is not shown that de- fendant was prejudiced. State v. Weems (Sup. Ct. of Iowa), 282., 22. County attorney. The provisions of section 21, chapter 7, Comp. St. 1895, as follows : "In the absence, sickness, or disability of the county attorney and his deputies, the court before whom it is his duty to appear, in which there may be business for him, may ap- point an attorney to act as county attorney, by an order to be entered upon the minutes of the court, but who shall receive no compensation from the county except as provided for in sec- tion six of this act (section 20, this chapter)," — held ap- Dlicable to the prosecution of offenses by infonnation, estab; 574 INDEX. lislied by the act of 1885 (Oomp. St. 1895, c. 14, art. 1, § 69, subd. 33), and to warrant or authorize the trial court to ap- point an attorney to perform the duties required of the county attorney in any particular case being prosecuted under the law in regard to prosecutions for offenses by information, when- ever the conditions exist as stated in section 21, chapter 7, herein quoted; and that the enactment allowing such appoint- ment is not in conflict with the provisions of section 10 of the bill of rights in the portion wherein it refers to the legislature providing by law for holding persons to answer for criminal offenses on information of a public prosecutor. Korth y. State (Sup. Ct. of Nebraska), 509. 23. Defendant's failure to testify — Comments on. Comment by the state's counsel on the failure of the ac- cused to testify, under section 1741 of "the Code, is ground for reversal. Sanders v. State (Sup. Ct. of Miss.), 245. 24. Election. In the case at bar the defendant was charged with embezzle- ment of the funds of a county while he was its treasurer, in. an information containing several counts charging several and; distinct embezzlement. He made a motion that the state be required to elect upon which of the several counts of the in- formation it would prosecute him. The trial court withheld its ruling upon this motion until the close of the introduction of the state's testimony in chief, at which time the motion was sustained, and the state required to elect under which count of the complaint it would further proceed. Held, go far as the record discloses, there was no abuse of discretion in the action ■of the trial court. Korth v. State (Sup. Ct. of Nebraska), 510. 25. Evidence. Where, on a murder trial, a witness for tlie state testifies only that defendant was at a certain house on the night of the I homicide, the defendant is not prejudiced by the exclusiou , of questions on cross-examination as to whether the house was INDEX. 575- not a sporting touse, and the witness a prostitute, wliere it was not disputed that defendant was at the house at the time testified to, or that he was present when deceased was killed^ State V. Weems (Sup. Ct. of Iowa), 282. 26. Where the plaintiff introduces evidence of a remark made by the defendant, the defendant may on his own behalf give the entire conversation, even though it may contain self serv- ing statements. Emery v. State (Sup. Ct. of Wisconsin), 468. 27. It is not error, in a prosecution for larceny, to charge that "the proof is deemed to be beyond a reasonable doubt when, the evidence is sufficient to impress the judgment and under- standing of ordinary prudent men with a conviction upon ■ which they would act in their own most important affairs or concerns of life." Polin v. State, 16 W. W. 898; 14 ISTeb. 540; Willis v. State, 61 N. W. 254; 43 Neb. 102. Lawhead V. State (Sup. Ct. of Nebraska), 494. 28. Evidence — Good character. In rebuttal of evidence of good character, the state is not allowed to prove, by a deputy sheriff, "that he nearly always had a warrant for the defendants arrest." Murphy v. State- (Sup. Ct. of Alabama), 251. 29. Extortion. The statute is directed against threats to accuse another of a crime, or to do any injury to the property of another with intent to extort. State v. Lewis (Sup. Ct. of Iowa), 380. 80. Eor jury — Intent. Criminal intent is essential to constitute the crime of for- gery, and the testimony bearing thereon is always a question for the jury. People v. Wiman (Ct. of App. of IST. Y.), 243. 31. The conviction should be reversed where the charge renders uncertain the question as to whether "criminal intent" was essential to constitute the crime of forgery. Id. 82. Former acquittal. An order by a magistrate on a preliminary examination i» 676 INDEX not a bar to a second preliminary examination. Kobinsoa v, Dickerson (Sup. Ct. of Alabama), 651. 33. Former adjudication — Bar. A person cannot be punisbed for tbe same transgression, under section 1997a and section 9286 of 3 How. Ann, St. People V. Cox (Sup. Ct. of Micbigan), 32. 34. A prosecution on a cbarge laid out a date anterior Jo tbe former indictment is barred by a conviction upon sucb former indictment, wbere tbe offense cbarged is a continuing one. Id. 35. Former conviction. Wbere a count in tbe indictment cbarges defendant witb be- ing an babitual criminal, and evidence relating tbereto is in- troduced by tbe government but subsequently witbdrawn from tbe consideration of tbe jury, tbe fact tbat tbe govern- ment was allowed to go to tbe jury only on a prior count can- not be said, in contemplation of law, to bave injured tbe de- fendant, wbere tbe jury was carefully instructed nod; to regard any of tbe evidence relating to sucb count. Oommonwealtb v. Cody (Sup. Judicial Ct. of Mass.), 423. 36. Hired vsdtness. Wbere tbe defendant's arrest is tbe outgrowtb of a purcbase by tbe complainant witb tbat object in view, it is unnecessary for tbe court to do more tban inform tbe jury tbat sucb facts, are to be considered in determining tbe credit due to bis testi- mony. People V. Bennett (Sup. Ct. of Micbigan), 28. 37. Homicide. Wbere tbe defendant fires tbe sbot wbicb results in tbe deatb of tbe deceased, or is an accomplice of tbe party wbo commits tbe deed, tbougb tbe sbot may be intended for a different person, tbe offense, in tbe eyes of tbe law, is tbe same as it would be if tbe sbot bad killed tbe person for wbom it was intended. Murpby v. State (Sup. Ct. of Alabama), 252. 38. Homicide — Instructions. Under Act February 11, 1893, it is error to instruct tbe INDEX. 577 jury, on a trial for murder, that, if they believe the evidence, the defendant is guilty of murder in the first degree, though defendant offers no evidence, and all the evidence for the state tends to show only murder in the first degree. State v. Gad- berry (Sup. Ct. of North Carolina), 81. 39. Homicide — Malice. A defendant, who admits having made an incriminating threat, is entitled to show the circumstances under which it was made, the accompanying conversation, if any, which called it forth, and the information on which it was based. Emery v. State (Sup. Ct. of Wisconsin), 468. 40. Impeachment. . A conviction of a felony cannot be proved in the first in- stance by parol. Murphy v. State (Sup. Ct. of Alabama) 251. 41. Indictment. ■- The service of a copy of a process verDal o± the action of the jury commmissioners in drawing the jury, upon an accused person, is not required. State v. Williams (Sup. Ct. of Louis- iana), 202. 42. The counts in an indictment for rape do not each charge the same offense, so as to render a dismissal of the first an acquittal of the second, where the first count is in the ordinary form of one for rape of a female over thirteen years of age, except that prosecutrix is described as a "female child," and the second count is for carnally knowing a female child under thirteen years of age, the same female being named in each count. State v. Gaston (Sup. Ct. of Iowa), 308. 43. In statutes which make different acts a crime, and state the acts disjunctively, all of the adts may be set out in the indict- ment in conjunctive form. State v. Lewis (Sup. Ct. of Iowa), 381. 44. An indictment for extortion is not sufficient because the threatening words, writings and printed communications are not set out therein. Id. Fed. Crtm. Rf.p., Vol. I.— 73 678 INDEX. 45. A number of separate and distinct felonies all of which may- be tried in the same manner, which are of the same general character, require for their proof evidence of the same kind, and the punishment of the same nature, may be charged in separate counts of one information, and the party thus charged may be placed on trial for all of such counts at the same time. The question of whether the state will be required to elect , between the several counts if a motion is made by defendant that it be so required will rest in the sound discretion of the trial court, and, unless it appears that there has been an abuse of such discretion in overruling the motion it will not be available as error. Korth v. State (Sup. Ct. of Nebraska), 510. 46. Indictment — Duplicity. An indictment cannot be assailed for the first time on appeal upon the ground of duplicity. ITaanes v. State (Sup. Ct. of Indiana), 433. 47. Indictment — Indorsement. Section 4337 of the Code does not require that the names of witnesses before the grand jury who gave no material testi- mony should be indorsed on the indictment nor that the min- utes of the testimony shall be returned and made of record. State V. Lewis (Sup. Ct. of Iowa), 380. 48. Indictment — Pendency. The pendency of an indictment is no ground for a plea in abatement to another indictment in the same court for the same cause, nor is it a ground for a plea in bar, nor for a mo- tion in arrest of judgment. Commonwealth v. Cody (Sup. Judicial Ct. of Mass.), 423. 49. In an indictment under section 22, chapter 202 of Public statutes, it Is sufficient to charge that the defendant was armed with a pistol, without other allegations to show in what way it was dangerous. Id. INDEX. 579 50. "WTiere the indictment does not charge an assault with the pistol, it is unnecessary to allege how the weapon was used or intended to be used. Id. 61. Inquest. - The state may introduce, on the trial, only part of a state- ment made by defendant at the inquest, without introducing the whole of such statement^ Emery v. State (Sup. Ct. of Wisconsin), 469. 52. Instruction. Though a party is entitled to an acquitttal if the jury have a reasonable doubt of his guilt, arising out of any part of the , evidence, upon consideration of the whole evidence, a charge . is misleading which instructs the jury that the defendant is . entitled to the benefit of any reasonable doubt they may have as to the existence of any material fact in the evidence. Mur- phy V. State (Sup. Ct. of Alabama), 252. 53. A remark by the judge in his charge that the person robbed '"identified them here at the trial without hesitation," was held not to be an expression of opinion in regard to the credibility of the witness. Commmonwealth v. Flynn (Sup. Judicial Ct. of Mass.), 418. 64. There is no prescribed formula, under certain confidential method, which must be observed in framing instructions to a jury. Howard v. State (Sup. Ct. of Alabama), 447. 55. It is essential that the language in which they are expressed is not ambiguous, but is fair, accurate and otherwise in its meaning; and an instruction which has a tendency to mislead or to confuse the jury, if not explained so as to free it of this tendency, may be properly refused. Id. 66. It is error to give instruction infringing on the province of the jury. Haskins v. State (Sup. Ct. of Nebraska), 482. 67. An instruction in a criminal case is erroneous which has the effect to shift the burden of proof from the state to the accused. , Id. 580 INDEX. 58. Where tlie jury liave been fully advised respecting the dis- tinction between grand larceny and petit larceny, it is not error for the trial court to add that they have nothing to do with the question of the penalty, and that it is their duty to render a verdict in accordance with the evidence, without regard to its effect upon the accused. Eord v. State, 64 N. W. 1082; 4S Neb. 390. Lawhead v. State (Sup. Ct. of Nebraska), 495. 69. Certain instructions held properly refused, the propositions therein embraced having been given by the court on its own motion in language quite as favorable to the accused. Id. 60. It is not error to refuse to give an instruction when the main purpose sought to be effected by giving the instructions is clearly and fully embraced in and accomplished by other instructions, read to the jury, and it appears that no prejudice could have resulted to the rights of the complaining party by reason of such refusal. Korth v. State (Sup. Ct. of Nebraska), 511. 61. Instruction — Waiver. Where the reading of the record of the board of supervisors has been waived by defendant, he cannot complain on appeal from conviction under act No. 207 of 1889, of instruction that the local option law was in force in that county. People v. Bennett (Sup. Ct. of Michigan), 28. 62. Intent. When the intent or motive of a party in doing a particular act or making a declaration becomes material, it is permissible for the party to be sworn in regard to it. Emery v. State (Sup. Ct. of Wisconsin), 468. 63. Joinder. Under section 54 of the Criminal Code, it was erroneous, over proper objections, to try a defendant upon the charge of burning a schoolhouse, joined with one for causing such burn- ing to be done by another person. Wendell v. State (Sup. Ct. of Nebraska), 4Y7. ■ . ■ ■ INDES. "" : 581 64. Judgment — Suspension. A court may suspend a judgment upon the understanding that a defendant will compensate an injured party by payment of money, but the collection of such damages cannot be en- forced by imprisonment. State v. Whitt (Sup. Ot. of North Carolina), 3Yl. 65. But when a judgment has been suspended on the agreement of the defendant to pay the costs, and the costs have not been paid, the judgment may be enforced for such failure. Id. 66. The defendant, at a subsequent term of the court, because of his failure to pay the costs, may have a different judgment entered against him for the former one, which was suspended, if the second is in diminution of the first judgment. Id. 6Y. Juror — Objection. The defendant must, at the time the jury is empaneled, object to a juror, if disqualified, and reserve his bill of excep- tions to the action of the court. Ilannaman v. State (Ot. of Grim. App. of Texas), 546. 68. Jurors. Jurors, who say that they have made up their opinions ad- verse to defendant from the rumor of the county, etc., and state definitely that they have no bias or prejudice against defendant but that they can have their minds blank and free from such opinions, and can and will give the prisoner a fair and impartial trial, uninfluenced by such opinions, according to the evidence, are competent. State v. Douglass (Sup. Ot of App. of West Virginia), 523. 69. Jury. The court, in its discretion, may discharge a jury where it 18 unable to agree, and the person accused may be tried again by another jury. Oommonwealth v. Oody (Sup. Judicial Ot. of Mass.), 423. 70. Larceny — Identity. Where the identity of a note offered in evidence is Tinquea- 582 INDEX. tionable, a variance, in tlie indictment, of two days in tKe date thereof is immaterial. State v. Thompson (Sup. Ct. of Ore- gon), 239. 71. Murder — Instructions. A statement by the court to the attorneys, • in the presence of the jury, that the result of a witness' murder case, where it was brought out in the examination of such witness that he had been indicted for murder and tried three times, had noth- ing to do with the case on trial, and that it could only be shown that he was indicted, had the same effect as though it had been addressed directly to the jury. Howard v. State (Ot. of Crim- inal App. of Texas), 152. ; 72. Ownership. A purchaser of land, who agreed to pay, as part of its con- sideration, a note of the vendor secured by a mortgage on the land, is, on payment thereof, entitled to its possession, and the OAvner thereof, with an averment of an indictment charging one to whom it was delivered as attorney of the payee, and who converted it to his own use, with the crime of larceny by a bailee. ,73. Preliminary examination.' _ The record of the proceedings In the examining court dis- closes that a complaint was filed, which contained a charge of the crime for which plaintiff in error was tried in the dis- trict court, and that he was arraigned thereupon, and waived examination. Held sufficient to show fulfillment of the re- quirements of section 585 of the Criminal Code in regard to preliminary examination. Kqrth v. State (Sup. Ct. of Ne- braska), 510. 74. Preliminary examination — Witness. Section 4786 of the Revised Statutes is directory only, and the examination of a sufficient number of witnesses to justify the magistrate in binding over the defendant for trial will be held to satify the statute. Emery v. State (Sup. Ct. of "Wis- • consin), 469. INDEX 663, '15. Presence of one jointly indicted. The question whether, on a trial for murder, the defendant's counsel should be allowed to have a person jointly indicted with defendant, and who was confined in the county jail, con- tinually in court, ready for consultation, rests in the discretion of the trial court. State v. Weems (Sup. Ct. of Iowa), 282. 1Q. The supreme court will not, where all the reasons for ex- cluding a person jointly indicted from the court room are not in the record, presume that those not appearing were insuffi- cient to warrant his seclusion. Id. 11. Proof of vaue. Where a note is negotiable and at the time of its conversion is not due, the fact that the defendant was able and did sell, and dispose of it for its face is sujfficient proof of its value. State v. Thompson (Sup. Ct. of Oregon), 239. 78. Proving exceptions — Presence of accused. There is no reason why the petitioner should be present at a hearing before a commissioner to prove the truth of his ex- ceptions, unless he desires to be present, or to be heard in per- son or to testify in his own behalf. Commonwealth v. Cody (Sup. Jud. Ct. of Mass.), 423. 79. The court will not consider statements in the bill of ex- ceptions which petitioner seeks to prove, where the bill al- leged differs materially from that proven and is manif esty un- fair. Id. 80. Eape. The crime of having carnal connection with a girl under the age of sixteen years is rape, even though she gives her full consent so far as she is capable of consenting. Commonwealth V. Murphy (Sup. Jud. Ct. of Mass.) 213. 81. Ilape — Instructons. Failure to instruct is no error when a spcoific instiiiction was not asked, and the point was covered by the general charge, 584 INDEX SO held on the trial of an indictment for carnally knowing a female child, where evidence was received of defendant's car- nal knowledge of prosecutrix in another county, and the court ^ failed to specifically instruct the jury that the evidence was ad- missible only to show the relation of the parties, but requested no such instructions, and the court charged that, before the jury could convict, they must be satisfied that he carnally knew prosecutrix at the time of the charge. State v. Gaston (Sup. Ct. of Iowa), 307. 82. Eeasonable doubt. A reasonable doubt is one arising from a candid and im- partial investigation of all the evidence, and such as, in the graver transactions of life, would cause a reasonable and pru- dent amount of haste and decision. Little v. People (Sup. Ot. of Illinois), 118. 83. Where the acts of the accused as developed in the evidence are explainable upon a reasonable hypothesis consistent with his innocence, there is reasonable doubt of his guilt, entitling him to an acquittal. Howard v. State (Sup. Ct. of Alabama), 447. 84. A juryman, in a criminal case, must use all the reason, prudence and judgment which a man would exercise in the most important affairs of life, and an instruction authorizing the use of any less degree of reason, prudence and judgment is erroneous. Emery v. State (Sup. Ct. of Wisconsin), '468. 85. Eeceiving stolen goods — Instruction. An instruction, upon such trial, that, if the jury "find that all the facts and circumstances surrounding the receiving of the goods by defendant were such as would reasonably satisfy a man of defendant's age and intelligence that the goods were stolen, or if he failed to follow up such inquiry so suggested, for fear he would learn the truth and know the goods were stolen, then the defendant should be as rigidly held responsi- ble as if he had actual knowledge," is not objectionable. State V. Feurerhaken (Sup. Ct. of Iowa), 392. .INDEX 585 86. Eecord.' ■ When an application for discharge is made by a party charged with the commission of a crime for the reasons stated in section 391 of the Criminal Code, that three or more terms of conrt have elapsed since the one at which the information was filed against him, without his being brought to trial, and th& delay has not happened on its application or been occa- sioned by want of time to try it, the last two stated facts must appear affirmatively in the record by showing made, if not otherwise. In an examination by this conrt to determine the propriety of the action of the district court in overruling such application they will not be presumed, but the presump- tion that the court proceeded regularly and without error will prevail. Korth v. State (Sup. Ct. of Nebraska) 509. 87. Second degree. ; If, upon a trial for murder in the first degree, there is no evidence tending to present a less degree of that offense, it is not the duty of the court to submit to the jury in its charge such degree. Howard v. State (Ct. of Criminal App. of Texaa), 152. ' 88. Sentence. A person, convicted of a violation of section 1 of act "No. 8 of Public Acts of 1893, may be sentenced to imprisonment in the house of correction and branch of state prison. People v. Smith (Sup. Ct. of Michigan), 341 89. Statute — Eepeal. The act of the legislature of 1891 entitled "An act to pro- vide for the depositing of state and county funds in banks" (Sess. Laws 1891, p. 347, c .50) did not repeal so much of sec- tion 124 of the Criminal Code as is in relation to loaning county funds, and constitutes such loaning by an officer in- trusted with its care and disbursement an embezzlement. Korth V. State (Sup. Ct. of Nebraska), 511. Fed. Cutm. Hkp., Vot., I.— 74 586 ESTDEX 90. Transcript. Where a transcript of the proceedings at the preliminary examination, and the information upon which such examina- tion was had, were lost or mislaid from the files of the district court, an order for the substitution of another transcript of such record and copy of the infoi-mation was proper, and not erroneous. Korth v. State (Sup. Ot. of Nebraska), 510^ SI. Trial — Summing up. Defendant's counsel cannot, at the close of the testimony on the part of the state and before the introduction of the evi- dence for the defense, review the testimony on the part of the state for the purpose of showing that it does not warrant a conviction. Emery v. State (Sup. Ot. of Wisconsin), 468. 92. Venue. Where, under section 1194 of the Code, the indictment charges an offense in a certain county, but there is no evidence of venue, the presumption is that it was committed in the state. State V. Lytle (Sup. Ct. of ISTebraska), Y8. 93. Upon the question of venue it will not be presumed that a place mentioned as the place where the offense was committed was situate within a certain county. Hutto v. State (Ct. of Criminal App. of Texas), 146. 94. The venue will not be changed for the mere belief of the party or his witnesses that he cannot have a fair trial in the county; facts and circumstances must appear satisfying the court. State v. Douglass (Sup. Ct. of App. of West Vir- ginia), 523. 95. Waiver. In a criminal case "the accused shall be taten to have waived all defects which may be accepted to by a motion to quash or a plea in abatement by demurring to an indictment or pleading in bar or the general issue." See Criminal Code, § 444. And if a plea to the general issue has been entered, and has not, on INDEX. 587 leave obtained, been withdrawn, a plea in abatement need not be entertained. Korth t. State (Sup. Ot. of Nebraska), 510. 96. Wai-rant — Local option law. A warrant for the violation of the local option law (act ISTo. 207 of 1889), issued by a justice of the peace, need not recite the evidence showing that such law was in force in the county, nor set forth the evidence showing that defendant was not a druggist, and therefore within the exception of the statute. People V. Bennett (Sup. Ct. of Michigan), 23. 97. Witness. Where one Jointly indicted is withdrawn from the witness' stand to consult with his lawyer, a refusal to allow defendant's counsel to join in the consultation is not prejudicial, where it appears that it was in defendant's interest, and the result thereof is the refusal by the witness to answer any questions, on the ground that his answers will tend to criminate him. State V. Weems (Sup. Ct. of Iowa), 283. 98. The objection that the attorney for the witness, and not the witness himself, made the claim of personal privilege, cannot be raised for the first time on appeal. Id. CRIMINAL TEIAL. Charge. On a trial for murder, a charge that the jury must not ^ve any thought to the fact that defendant did not testify in hig own behalf is not contrary to section 3636 of the Code. That rule, in its letter or spirit, does not apply to the court. State v. Weems (Sup. Ct. of Iowa), 284. DISTRICT ATTORlSrET. 1, Assistant. The fact that an attorney Is prejudiced against a liquor traffic does not disqualify him from assisting in prosecutions for vio- lations of the liquor law. People v. O'Neill (Sup. Ct. of Michigan), 336. 588 INDEX. 2. Sections 551, 660 of 3 How; Ann. St. do not prohibit the employment of additional counsel in preparing and prosecut- ing cases, involving misdemeanor to the grand jury, when, in the judgment of the board of supervisors, prosecuting attor- ney, and the court, such additional counsel is necessary. Id. EVIDESrCE. 1. Abortion. ' Upon a trial for abortion, testimony that witness went to a newspaper office, bought a paper, looked at the advertisements, and, In consequence of seeing an advertisement, went to the defendant's office, is not objectionable, where he had testified previously that he asked defendant to procure the abortion. Commonwealth v. Bishop (Sup. Judicial Ct. of Mass.), 412. 2. Admission. A remark by the sheriff to defendant, where the answer partakes of the nature of an admission, is proper evidence against defendant, where it can only be understood in connec- tion with the sheriff's remark to which it was a reply. Emery V. State (Sup. Ct. of Wisconsin), 469. 3. Arson. Upon a trial of an indictment for arson, evidence of a threat of defendant to bum the building made fourteen months be- fore the fire, was held, under the circumstances of this case, to have been properly admitted. Commonwealth v. Crowe (Sup. Judicial Ct. of Massachusetts), 420. 4. Upon the trial for arson, conversation and conduct of defend- ant shortly after the fire, was admissible, in the discretion of the court, in connection with other evidence in the case, to show guilty knowledge on the part of defendant. Id. 5. Arson — Threats. On a trial for arson, evidence of threats made by defendant to bum the building is admissible to establish motive in a case by circtimstantial evidence. State v. Lytle (Sup. Ct. of jji^orth Carolina), Y8. INDEX 589 6. Assault. Where, in a prosecution for assault by a teacher upon his pupil, the offense is that the defendant as a teacher had a right to chastise his pupil, evidence that the assault was so severe as to cause the blood to flow from the pupil is admissible. Kin- nard v. State (Ct. of Grim. App. of Texas), 176. v. Bill of exceptions. The only mode of making afiidavlts filed to sustain alleged grounds for a new trial a part of the record in a criminal case, is to embody them in a bill of exceptions. Naanes v. State (Sup. Ct. of Indiana), 433. ~ 8. Burglary. On the trial of an information for breaking into a store in the night, with intent to commit larceny, bottles of pepper- mint, brought from the store at the time of the trial, are ad- missible to identify similar bottles found in defendant's house after the burglary. People v. Van Dam (Sup. Ct. of Michi- gan), 24. 9. Carrying deadly weapons. When the weapon is but a few minutes in the possession of a person, not with the intent of carrying concealed a deadly weapon, but with intention of keeping the weapon, he is not guilty of carrying concealed a deadly weapon. State v. Chip- pey (Ct. of General Sessions of Delaware), 345. ^ 10. Confession. - A confession can never be received in evidence when the prisoner has been influenced by any threat or promise. Was held, where a person accused of crime was promised by the state's attorney that, if he would make a written statement of the facts, it should not be tised against him, but, after he did so, the state's attorney was not satisfied with the statement and asked him to come to the latter's ofiice, and make an oral state- ment, -^vhich the accused did under the belief that it would not 590 INDEX be used against Him. Kobinson v. People (Sup. Ot. o£ Illinois), 99. 11. A confession of the wife, made under tlie influence of and to her husband, is a confidential communication and in- competent as against her. State v. Brittain (Sup. Ot. of North Carolina), 365. 12. When a confession is made through hope or fear, subsequent confessions are presumed to proceed from the same influence^ until the contrary is shown by clear proof, and until then the latter confessions are not admissible evidence. Id. 13. Contemporaneous crime. Where, in a prosecution for burglary, the evidence shows the commission of contemporaneous theft by defendant, a charge, limiting the evidence as to the theft to its legitimae purpose, is proper. West v. State (Ct. of Criminal App. of Texas), 156. 14. Corroboration. The refusal of the court to state the testimony corroborating an accomplice must directly connect defendant with the crime, , is not ground for reversal, where the corroborative testimony - is of itself sufficient to warrant conviction. West v. State (Ct. Crim. App. of Texas), 156. 15. A conviction for rape may be had on the uncorroborated testimony of the victim. Curly v. Terr, of Arizona (Sup. Ot. of Arizona), 222. 16. Documentary. A copy of a hospital record, not authenticated in compliance with the requirements of section 466 E. S. 1894, is incom- petent to show admission into such institution and symptoms of insanity. Naanes v. State (Sup. Ct. of Indiana), 433. 17. Proceedings of an examination by a commission as to .the sanity of defendant, under section 3110 E. S. 1894, though duly certified and filed, are not evidence in a criminal prose- cution. Id. INDEX. 591 18. Dying declarations. The existence of any expectation of recovery, however slight, makes dying declarations inadmissible. Commonwealth V. Bishop (Sup. Judicial Ct. of Massachusetts), 412. 19. If such declarations are admitted in evidence, the court may consider whether the evidence is sufficient to warrant the findings on which the court proceeds, but cannot revise the findings of fact. Id. 20. If the evidence is excluded it is an end of the matter, unless some question of law is reserved. Id. 21. Examination of defendant. A defendant can only be examined by the prosecution about the matters testified to in his direct examination. Curly v. TeiTitory of Arizona (Sup. Ct. of Arizona), 222. 22. Extortion — Codefendant. Where defendant and another are jointly indicted and charged with making threats to extort money, and the court carefully guards the rights of the defendant by proper in- structions, evidence of the acts of his codefendant are properly ' admitted. State v. Lewis (Sup. Ct. of Iowa), 381. 23. Good character. Evidence of good character is admissible, not only in a case where doubt otherwise exists, but may be offered for the pur- pose of creating a doubt. People v. Van Dam (Sup. Ot. of Michigan), 24. 24. Homicide. Where, on a trial for murder, a witness, who has testified that he did not see the shooting, it is error to permit persons to testify that witness told them out of court that he saw the shooting, and showed them the place where it was done. Sav- ior v. Commonwealth (Ct. App. of Kentucky), 130. 26. Where, in a murder case, the deceased's wife is a witness for the defendant, she may be asked on cross-examination if she ^92 INDEX has not agreed to pay defendant's attorney's fees. Hagruder V. State (Ct. of Grim. App. of Texas), 173. 26. Homicide — Clothing. The clothing of the deceased, when fully identified, is ad- missible ia evidence to show the course of the bullet which caused his death. State t. Cadotte (Sup. Ct. of Montana), 7. 27. Homicide — Dying. declaration. In the admission of the declarations of the victim as to the facts of a homicide, the utmost caution must be exercised to the end that it be satisfactorily established that they were made under the impression of almost immediate dissiolution. Car- ver V. United States (TJ. S. Sup. Ct.), 463. 28. Onaission to challenge evidence of dying declarations as not properly in rebuttal may waive the mere order of proof, but does not concede that the want of foundation can be ex- cused for any reason. Id. 29. Identity. On such trial, evidence as to identity of the defendant with the person committing the crime was held to be admissible. State V. Lytle (Sup. Ct. of North Carolina), 78. SO. Intent. In such prosecution, evidence of the intention of the teacher in chastising the pupil is admissible. Kinnard v. State (Ot. of Crim. App. of Texas), 176. 31. Joint indictment. Where an alleged accomplice was tried at same time with defendant, it is discretionary with the court to admit against the acconiplice evidence not admissible against defendant, provided it instructs the jury not to consider such evidence against the latter.' Commonwealth v. Bishop (Sup. Judicial Ot. of Miassachiisetts), 412. 32. Knife. On a trial for murder, a knife which is not clearly identified' as the one claimed to have been in the hands of the deceased INDEX. 593 ' -when killed, is not admissible in evidence. State v. Oadotte (Sup. Ct. of Montana), 7. 33. Material. Upon trial for steep stealing, evidence of a witness that lie had seen several sheep of the prosecutor with the marks changed to the mark of the defendant, is not subject to any just objection. Howard v. State (Sup. Ct. of Alabama), 447. 34. l^Totice — Produce. Where no notice to prodilce is given, parol evidence of the contents of bills of goods is admissible. People v. O'Neill (Sup. Ct. of Michigan), 337. 35. Objection. Such declaration is admissible If made while hope lingers, • if it is afterwards ratified when hope is gone, or if made when the person is without hope, though he afterwards regains con- fidence. Carver v. United States (U. S. Sup. Ct.), 463. 36. The repetition of a dying declaration cannot itself be ad- mitted as a reiteration of the alleged facts, if made when hope has been regained. Id. 37. Perjury. On a prosecution for perjury committed at defendant's trial for assault, wherein, as it is alleged, he falsely swore that the person assaulted had presented a pistol at him at the time of assault, evidence that such person had previously insulted defendant's wife is inadmissible. Pearson v. State (Ct of Criminal App. of Texas), 148. 38. Perjury. The falsity of a statement can be, on a trial for perjury, established by circumstantial evidence, but this must be done by the testimony of at least two credible witnesses, or by one credible vritness strongly corroborated, as the law requires. Plummer v. State (Ct. Crim. App. of Texas), 159. 39. Physician. A physician, who attended the person robbed for two days Fed, Cbim. Rbp-, Vol. 1—75 694 INDEX * . after the robbery, may testify tbat she was hysterical when he eaw her. Commonwealth v. Flynn (Sup. Judicial Ot. of Massachusetts), 418. 40. A witness, if an expert, may give a description of the ap- pearance of the person robbed and of her apparent physical condition before and after the robbery. Id. 41. Proof. The evidence, in this case, was held to be sufficient to sus- tain a conviction. Curly v. Territory of Arizona (Sup. Ct. of Arizona), 222. 42. Eape. On the trial for rape alleged to have been committed by & father upon his daughter, it is competent to show that com- plainant's motive in charging defendant was to shield a lover,. whose attentions were paid to her against her father's wilL Curly V. Territory of Arizona (Sup. Ct. of Arizona), 221. 43. Receiving stolen goods. Upon the trial of an indictment for receiving certain stolen goods knowing them to have been stolen, the rule that it is improper upon the trial of a party for one offense to give proof that he is guilty of another on evidence having no connection with the offense on trial, does not apply to a case where it is- difficult, if not impossible, to separate the transaction. So held where the evidence tends to identify the goods covered by the indictment, and it appears that the proof in reference thereto justifies the inference by the jury that all the goods were taken from the same place, by the same person, at the same time, and were received by defendant from the same person at the same time. People v. McClure (Ot. of App. of New York), 216. 44. It is competent, on the trial for receiving stolen goods to show by witnesses, who actually stole the goods, the previous course of dealing between them and the defendant. State v» Eeurerhaken (Sup. Ot. of Iowa), 391. INDEX. 695 45. EefresMiig memory. It is competent, in case of unwilling witnesses, for tlie prose- cution to call the attention of such, witnesses to their deposi- tions given on other occasions, for the purpose of refreshing their memories, and, if possible, eliciting the truth; but this cannot be done for the purpose of impeachment. People v. OTsTdU (Sup. Ct. of Michigan), 337. 46. A witness may be compelled to disclose the evidence he gave before the grand jury. Id. 47. Kes gestae. The statements of the defendant, made half an hour after the alleged crime, are admissible in his favor as part of the res gestae. McCullock v. State (Ct. of Orim. App. of Texas), 164. 48. Statements made by the teacher half an hour after the al- leged assault are inadmissible in his favor, as part of the res gestae upon such trial. Ennard v. State (Ct. of Crim. App. of Texas), 176. 49. Kobbery. Upon an indictment for robbery, it is always competent to show the eflFect of the assault upon the person assaulted. Com- monwealth V. Elynn (Sup. Judicial Ct. of Massachusetts), 418. 60. Secondary. Where the court is warranted in assuming that the defend- ant refused to admit the receipt of, or to produce, a paper, he is justified, irrespective of any question of the sufficiency of the notice to produce it, in admitting secondary evidence of ■ its contents. Commonwealth v. Bishop (Sup. Judicial Ct. of Massachusetts), 412. 61. Seduction. On trial of an indictment for seduction, letters written to prosecutrix during her pregnancy, at defendant's dictation, are admissible against him. But where no indorsement or approval of its writing by him was shown, it is improperly 596' INDEX.. admitted in the evidence against hiin. If this admission is not prejudicial to defendant, the judgment will not be reversed for that reason. State v. Sibley (Sup. Ct. of Missouri), 133. 52. Similar attempts. Upon the trial of an indictment for conspiracy to commit extortion, the prosecution may be permitted to introduce evi- dence concerning other instances of extortion and attempts to extort for the purpose of aiding the juiy in determining with what intent defendant acted in the transaction set out in the indictment. State v. Lewis (Sup. Ct. of Iowa), 381. 53. Specific acts. Upon the trial of such an indictment, evidence of specific acts of unchastity of the prosecutrix with others is not admissi- ble. State V. Sibley (Sup. Ct. of Missouri), 133. 54. Statements of prosecutrix. Statements, testified to have been made by the prosecutrix while she claimed she was out of her mind in consequence of medicine administered by defendant to cause of abortion, are inadmissible. State v. Sibley (Sup. Ct. of Missouri), 133. . 55. Nor are such statements admissible for the purpose of corrob- orating the prosecuting witness, as they are not a part of the res gestae. Id. EXCISE. 1. Agent of prosecuting witness. It is incumbent on the defendant, in order to excuse himself on the ground that he was the agent of the prosecuting witness, to satisfy tihe jury that he did actually buy from another in the capacity of such agent, and not as the agent or employe of a person who furnishes the liquor, or as the agent both of such person and the prosecuting witness. 2. Burden. The burden of showing a license is on the defendant- State V. Smith (Sup. Ct.), 369. ' INDEX. 597 3. Druggist. , A druggist who has complied -witli the law hy filing a hond, while he may be guilty of an offense, is not guilty of an offense in keeping his drug store. Maynard v. Eaton (Sup. Ct. of Michigan), 485. 4. Indictment. If it is sought to charge him with a violation of the law in unlawfully selling, the offense should be specified iu such man- ner that the accused may know what he is called upon to meet. Maynard v. Eaton (Sup. Ct. of Michigan), 485. 5. Instruction. *". Where the minor did not name the party who sent him when he purchased the beer, an instruction that, if somebody sent him, it is not a sale to the minor, is unnecessary. Hanna- man v. State (Ct. of Crim. App. of Texas), 546. 6. Presumption. In such case, proof of the sale raises a presumption that it was solicited. State v. Smith (Sup. Ct. of IN'orth Carolina), 369. ,7. Sale. Where defendant takes the money of another and furnishes him whisky for it, it is prima facie a sale whether the liquor is delivered at that or another time. Id. 8. A person may be convicted of unlawfully keeping intoxicating liquor for sale without proof that he actually sold any liquor, or offered or exposed it for sale. Commonwealth v. Meskill (Sup. Judicial Ct. of Massachusetts)^ 417. 9, Sale of quantity. The sale of two pints of whisky to the same purchaser, deliv- ered at the same time, is not a sale of a less quantity than a quart within the meaning of section 4856 Sand. & H. Dig., "where the circumstances are not such as to show that an eva- sion of the law was intended. Bach v. State (Sup. Ct. of Ar- kansas), 124. 598 INDES. 10. Sales to minor. Where the state proves lie sale to the party to whom the beer is sold is a minor, the burden is upon the defendant to introduce the written consent or permission of the parent or guardian. Hannaman v. State (Ct. of Crim. App. of Texas), 546. ' ••- FEDEEAL CONSTITUTION". 1. Article 8 of the Federal Constitution has no application to crimes against the laws of a state. Commonwealth v. Mur- phy (Sup. Jud. Ct. of Massachusetts), 213. 2. Chapter 466 of 1893. Chapter 466 of the Statutes of 1893 does not inflict a cruel and unusual punishment. Id. 3. Knowledge of age. To constitute the offense prescribed by chapter 466 of the Statutes of 1893, is not necessary to show that the defendant knew, or had good reason to believe, that the girl was under sixteen years of age. Id. 4. Responsibility. One who intentionally commits a crime is criminally re- sponsible for the consequences, if the act' proves different from that which he intended. Id. FOEGEET. 1. Indictment. In an indictment for forgery of a promissory note, the omis- sion, in setting it out according to its "purport and value'* (Eev. St., § 7218), of a power of attorney to confess judgment), attached to the note, is not a variance- material to the merits of the case, nor prejudicial to the defendant, and, therefore, .not a ground of acquittal. Id., § T216. Burdge v. State (Sup. Ct. of Ohio), 428. 2. Evidence. Where a party Is indicted for the forgery of a note, evidenca INDEX- 599 that the defendant released a judgment he had taken on the note, without consideration, after being charged with the for- gery, is competent on the question of his guilt. Id. 3. Information. ' It is sufficient in an information for forgery to charge the intent to defraud ia general terms. It is not necessary to state or prove an intent to defraud any particular person. Eoush V. State, 51 K W. Y55; 34 ISTeb. 325, reaffirmed, and followed. Morearty v. State (Sup. Ct. of Nebraska), 503. 4. Instruction. The giving of an instrument which submits to the jury the existence or nonexistence of a fact material to the issues in the case on trial, when no evidence has been introduced which would support a finding of its existence, is error for which the judgment may be reversed. Id. 5. Order, An order to deliver to bearer a specific article of personal property is within the definition of section 145 of our Criminal ■ Code in relation to forgery, as "any order or any warrant or request for * * * the delivery of goods and chattels of any kind." Id. 6. The order or request upon which the charge in this case was founded to let bearer have a designated article of personal prop- erty held to be the subject of forgery, though not addressed to any person by name; and where such an order is set forth by copy in an information charging its forgery, and it is apparent from its face or its terms that there was a possibility by its use to deprive some person of property rights, the information irf sufficient without averment of any facts extrinsic to the in- strument to extend or explain its terms. Id. rOEMEE ADJUDIOATIOK Acquittal. A judgment of acquittal, rendered in the case in which the alleged perjury was committed, ia not admissible on a trial for 600 INDEX , perjury to show tlie guilt or innocence of the defendant. State . V. Caywood (Sup. Ct. of Iowa), 276, HABEAS CORPUS. 1. Appeal. An appeal to a higher court from a judgment of conviction is not a matter of absolute right, independently of constitu- tional or statutory provisions allowing it, and a state may ac- cord it to a person convicted of crime upon such terms as it thinks proper. Kohl v. Lehlback (XI. S. Sup. Ct.), 62. 2. Constitutional law. The provision of the New Jersey statute that a juror shall not be excepted to on account of his citizenship after he has been sworn, does not violate the state Constitution. Id. 3. Judgment. A judgment of conviction is not invalid because one of the juroi-s was an alien, where no objection was made to him on this account. Id. 4. Extradition. A warrant of extradition of the governor of a state, issued upon the requisition of a governor of another state, accom- panied by a copy of an indictment, is prima facie evidence that the accused had been indicted, and was a fugitive from justice, and, if the court in which the indictment was found had jurisdiction of the offense, is sufHcient to make it the duty of the courts of the United States to decline interposition by writ of habeas corpus, and to leave the question of the lawful- ness of the detention of the prisoner in the state in which he was indicted to be inquired into and to determine, in the first instance, by the courts of the state. Whiten v. Tomlinson (U. S. Sup. Ct.), 46. 6. Perjury. An indictment for perjury, which gives the name of thfj officer before whopi, the alleged false oath ww, taken, avers that he was con^petent to ^dministe? an. oath,, sets. forth- the INDEX. 601 very worcls of tlie statement alleged to have been willfully and corruptly made by the accused, and charges, that such false statement was part of a disposition given and subscribed by the accused before that officer and was material to an inquiry then pending before, and within the jurisdiction of, the com- missioner of pensions of United States, is sufficient under the statute. Markham v. United States (U. S. Sup. Ct.), 11. 6. Petition. In a petition for a writ of habeas corpus, verified by the oath of the petitioner, as required by section 754 of the Revised Stat- utes, facts duly alleged may be taken to be true, unless denied by the return or controlled by other evidence. .Whiten v. TomUnson (U. S. Sup. Ct.), 46. 7. The general allegations in the petition that the petitioner is detained in violation of the Constitution and Laws of the Ui4ted States and of the Constitution and Laws of one of the- states, is held without due process of law, or averments, of mere- conclusions of law, and not as matters of fact, Id. 8. An 8llega,tion in the petition that in August and September,. 1893, the petitioner 'vras tried before a local court in New Haven upon the same charge, and, upon a full hearing, was discharged by the court, affords no ground for his discharge on habeas corpus. Id. 9. The fact that an indictment, actually presented by the grand jury of the court lacked the words "A true bill," and was found by the grand jury by mistake and misconception, is a proper subject of inquiry in the courts of the state, but affords no ground for interposition by the courts of the United States by writ of habeas corpus. Id. 10. Recognizance. The question whether a recognizance, entered into for one's appearance in the state court on the day appointed by law for the beginning of the court term, requires his appearance on thfr subsequent day of the term, is a question for the state court. Fed. Ckim. Bbp., Vol. 1—76 602 INDES. rather than for the Federal court upon a petition by writ for habeas corpus. Id. 11. Eecord. A letter written by the judge to petitioner's counsel in re- gard to an amendment of the record has no place in the record and its insertion therein does not show such amendment. Id. 12. Eesidence. The question whether the word "resides," as used in section 962 of Com. St., implies domicile or only presence in the county, is for the decision of the state court Id. 13. Return of sheriff. Any defect in the return of the sheriff to the writ of habeas corpus in not setting forth the indictment and the warrant of extradition, as ground for the detention of the prisoner, affords no reason why the courts of the United States should take the prisoner out of the custody of the authorities of the United States. Id. , 14. Section 5396. Section 1025 of 2 Eev. St., does not dispense with the re- quirement of section 5396 that an indictment for perjury shall set forth the substance of the offense charged. Maryigm V. United States (U. S. Sup. Ct.), 72. . 15. State court. - ' Where a person is in custody, under process from a state' court of original jurisdiction, for an alleged offense against the laws of such state, and it is claimed he is restrained of his liberty in violation of the Constitution of the United States, the circuit court has a discretion whether it will discharge him, upon habeas corpus, in advance of the trial in the court in which he is indicted; but that discreti»n is to be subordinatedi to any special circumstances requiring immediate aotionj "Whiten v. Tomlinson (U. S. Sup. Ct.), 46. 16. Except in such peculiar and urgent cases, the courts of tha • ■ United States will not discharge the prisoner by habeas CQKpiH INDEX. 603 in advance of a final determination of his case in the courts of the state, and, even after such final determination in those courts, will generally leave the petitioner the usual and orderly, course of proceeding by writ of error from the Federal supreme court. Id. 17. A state court, which has jurisdiction of the offense charged and of the accused, must determine whether an indictment sufficiently charges the crime of murder in the first degree. Kohl V. Lehlback (IT. S. Sup. Ct.), 62. 18. Whether a writ of error in criminal oases punishable with death oan or cannot be prosecuted under the various acts of New Jersey, unless allowed by the chancellor of the state under section 83 of the Criminal Procedure Code, and, if so, under what circumstances and on what conditions, are matters for the state courts to determine. Id. 19. The supreme court of the United States can neither antici- pate nor overrule the action of the state courts as to the right to review in an appellate court, since a denial of such a right altogether would constitute no violation of the Constitution of the United States. Id. HIGHWAYS. 1, Indictment — Duplicity. An information, under said statute, which charges the of- fense as having been committed by failure to have a man in front of the engine, and also in failing to stop, is not bad for duplicity. State v. Kowolski (Sup. Ct. of Iowa), 397. 2. Instruction. Upon such trial, an instruction that a person operating such engine on the highway must stop it for the passage of teams passing either way, unless to stop would be dangerous to life or limb, is not obiectionable. Id. 2. Steam engines. Under chapter 68, Acts 24 Gen. Assem., the law as to the 604 , INDEX, stopping of tlie engine and the keeping of a man in front is- alike applicable to all teams that are to paas the engine, whether from front or rear. Id. 4:. Steam eingines— Defense. The avoidance of danger by leaving the traveled track is not a vaHd excuse for the violation of the specific provision in the statute as to the crossing of culverts with such engine. Id, 5. Upon the trial of an information under said act, the refusal of the court to permit defendant to show that he kept a person on the lookout, but in a different way from that prescribed by law, is right. Id. HOMICIDE. 1. Defense. The real or apparent necessity to take life, which is brought about by the design, fault or contrivance of the defendant, is no excuse. Rogers v. State (Sup. Ot. of Tennessee), 534. 2. Even though sufficient caiise does exist for reasonable appre- hension, but the killing it not done under the fear it is calcu- lated to inspire, or the fear is simulated, this defense will not be available. Id. 3. Defense of dwelling house. Where the deceased enters the dwelling house of defendant and first fired upon him, after he had retreated to avoid de- ceased, he has a right to take the deceased's life. Saylor v.. Commonwealth (Ct. App, of Kentucky), 130. 4. Instruction. The instruction, in this case as to the effect of anger or ade- quate provocation in reducing the killing to manslaughter, was held to be proper. Magruder v. State (Ct. of Crim. App. of Texas), 173. 5. An instruction which recites material evidence that is not before the jury in such a way as to imply that the judge- trying^ the case understands that such evidence is in the record, is erroneous. Williams v. State (Sup. Ct. of TTebraska), 499. INDEX. 606 6. The eflect of the evidence and the inferences deducihle there- from are for the jury, and for the court to instruct the jury that the evidence establishes a certain controverted fact in issue is an unwari'anted assumption of the functions of the jury. Id. V. Where, on the trial of a murder case, in which the defense is temporary insanity, the court undertakes to detail in an in- struction what evidence the jury may consider in determining . whether the prisoner knew the killing was wrong, the court must inpartially recite the material evidence offered both by the state and the prisoner to sustain their respective theories of the homicide. Id. B. It is prejudicial error for the court in such a case to group together in an instruction the important material facts put in evidence by the state as to the prisoner's sanity and omit all mention of the evidence produced by the prisonier tending to traverse that of the state. Id. 9. A charge upon the question of negligence that "the degree of care and caution required to avoid danger is such as a man of ordinary prudence would have used under like circumstances," is sufficient. Morris v. State (Ot. of Grim. App. of Texas), 548. 10. Instruction — Provocation. Where defendant and deceased had been previously on good terms, and the time from the beginning of the difficulty until the fatal shot was very short, an instruction that the provocation must arise at the time of the commission of tilie offense was held not to be improper, in view of the further in- struction to consider in connection therewith all the facts and circumstances in evidence in the case. Graham v. State (Ct. of Grim, App. of Texas), 543. 11. IlTegligence — Evidence. On a trial for negligent homicide in i^apldly driving the ' wagon in which defendant was riding, defendant's declarations 606 IXDEX. made a short time after, and at the place of, the injury, as t decedent's acts and his own opinion thereof, was part of the res gestae, and admissible to characterize the defendant's driving on that occasion as negligent. Morris v. State (Ct. of Grim. App. of Texas), 548. 12. Notice. Where the facts show that the deceased was riding in de- fendant's wagon, and that defendant drove his team in a furi- ous and rapid manner, the latter is charged with notice that his acts endangered the life of the deceased. Id. 13. Proof. The defendant, in this case, was held to have fired the fatal shot without suiScient or reasonable ground to apprehend danger to himself. Eogers v. State (Sup. Ct. of Tennessee), 534. 14. Self defense. Refusal to give especial charge on manslaughter or self de- ' f ense is proper, where there are no facts in the case authorizing it or involving the question of self defense. Graham v. State (Ct. of Crim. App. of Texas), 543. 15. Self defense — Instruction. ' On a trial for homicide in which the defendant, by his evi- dence on the trial, was attempting, in part, to justify the homi- cide on the ground of self defense, an instruction which emasculates the evidence given by the defendant upon the plea of self defense and then charges upon the weight of the fragments left, is erroneous. Wilburn v. State (Sup. Ct. of Mississippi), 207. 16. Volition, Whether the deceased was thrown and hurled from the wagon vyithout any volition on his part, but simply on account of the speed of the driving, or whether, in an attempt to get out of the said vehicle, he was violently thrown therefrom, the defendant is, in either event, liable for his negligence in INDEX ,60,7 driving at such a furious rate of speed. Morris v. State (Ct, of Crim, App. of Texas), 548. :. ^ HUSBAND AND WIFE. 1. Excise. A husband is liable for keeping a liquor nuisance wbile his wife kept intoxicating liquors for illegal sale on bis premises and witb bis knowledge, unless be uses reasonable means to prevent ber from carrying out sucb intent. Commonwealth V. "Walsh (Sup. Judicial Ct. of Massachusetts), 209. 2. The criminal intent involved in the commission of such crime is the intent to keep the tenement, knowing and suffering it to be a common nuisance, and it is immaterial who does the- other unlawful acts which make it a common nuisance. Id. INDICTMENT. 1. Accomplice — Corroboration. It is not necessary that an accomplice should be corroborated to every material fact to which he testiiies. State v. Feurer- haien (Sup. Ct. of Iowa), 391. 3. The corroboration need not be by the testimony of witnesses- alone; it is sufficient if it be by circumstances or circumstantial evidence. Id. 3. Banks and banking. • Where the act complained of is stated in the indictment with such a degree of certainty, in ordinary and concise lan- guage, and in such a manner, as to enable a person of common understanding to know what is intended to be charged, it is competent. State v. Eifert (Sup. Ct. of Iowa), 403. 4. An indictment, which charges that defendant, being engaged in the banking and deposit business, and insolvent, knowingly accepted from one M. a deposit, sufficiently states who was the owner of the money deposited and who was defrauded. Id. 5. Bribery. Under sections 950 and 952 of the Penal Code, an indict- INDfiX ment, wMch charges that defendant did give a bribe to a der-' tain supervisor, with intent "to corruptly inJluence hini ia a certain matter, is not sufficient. People v. Ward (Sup. Ct. ' of California), 19. 6. An indictment is good if it alleges all the facts or acts neces- sary to constitute the particular offense charged, in the lan- guage used by the legislature in defining it. Id. t. An indictment for bribery should aver that the defendant gave something of value or advantage, present or prospective, or some promise or undertaking, or did some act, described by the statute as constituting the offense. A mere use of the language of section 165 of the Penal Code, which prescribes the punishment is not charging the offense "in the words' of the statute defining it." Id. 8. Though the commissioner may have been perfectly willing to be bribed, the defendant would be guilty of offering the bribe. Eath v. State (Ct. Crim. App. of Texas), 162. 9. Under an indictment which charges defendant with offering to bribe a county commissioner to vote for the building of a court house which the commissioner's court had in contempla^. tion, it is not necessary to allege that the defendant offered to bribe the commissioner to do or omit to do an act in violation of his duty as such officer. Id. 10. The offense is complete if he offers to bribe the commissioner to vote a certain way on a matter upon which by law he was called upon to vote, and he would be guilty whether it would be for the benefit of the said county or not, or whether it would not be the duty of such officer to so vote. Id. 11. Burglary. An indictment for burglary may be laid according to the common law, and without referring to the facts upon which the imposition of the higher penalty depends, but in such case the punishment cannot exceed the less penalty. People v. Shaver (Sup. Ct. of Michigan), 316. INDEX. 609 12. "Where the facts are supposed to warrant it and the higher penalty is contemplated, the crime must be described with the attending facts which justify the penalty. Id. 13. Demurrer. On overruling a demurrer to a plea in abatement on an in- dictment, the state may rely on the merits. People v. O'Neill (Sup. Ct. of Michigan), 336. 14. Duplicity. An indictment for carrying a pistol may, in the same count, charge more than one method of committing the offense. All- phin V. State (Ct. Criminal App. of Texas), 145. 15. Though the words are used disjunctively in the statute which makes it a crime for any one to buy, receive or aid in conceal- ing any stolen goods, etc., it is good pleading to use them in the indictment in conjunction, and such use does not involve more than one charge. State v. Feurerhaken (Sup. Ct. of Iowa), 391. 16. In such indictment, it is not necessary to name the person from whom the goods were received. Id. 17. Where several offenses are of the same general nature and belong to the same family of crimes, and the mode of trial and nature and degree of punishment are the same, they may be joined or included in different counts of the same indictment. Howard v; State (Sup. Ct. of Alabama), 447. 18. Election. The court should never interfere, either by quashing the indictment or by compelling an election when the joinder is simply designed and calculated to adapt the pleading to the different aspects in which the evidence on the trial may present a single transaction. Howard v. State (Sup. Ct. of Alabama), 447. 19. Embezzlement. ■Where the words charging defendant with being a postoffico ■ employe are material in an indictment which charges, under Fbd. CniM. Rnir.. Vol. L— 77 610 INDEX. Act Marcli 3, 18Y5„ tlie embezzlement of a certain sum o£ money, belonging to the United States, by defendant, it must be averred that the money came into his hands by virtue of such employment. Moore v. United States (U. S. Sup. Ot.),. 38. 20. If the words of such indictment charging defendant's em- ployment, are treated as surplusage, the property embezzled must be identified with particularity. Id. 21. Forgery — Proof. Under an indictment which does not allege that a fictitious- person was intended to be defrauded or injured but alleges an intent to defraud generally proof can be made that the party whose name was signed to the instrument was a fictitious per- son or company. Johnson v. State (Grim. Ot. App. of Texas)^ 168. 22. Gaming. An alllegation in an indictment, under revised Code of 1874^ p. 786, that it is a game of chance, is unnecessary. State v.. JSTorton (Ct. of General Sessions of Delaware), 347. 23. Homicide. An indictment for homicide, which is in the form allowed' by section 1, chapter 144 of Code, will not be held bad. State- V. Douglass (Sup. Ct. of App. of West Virginia), 523. 24. Instruction. Where, on a prosecution for carrying a pistol, there is no plea, or evidence of justification, and the only issue is whether he- had a pistol at the time, a charge that if the jury believes that at the time defendant had ground for fearing an attack, etc., he should be acquitted, is erroneous and prejudicial to defend- ant. Allphin V. State (Ct. Criminal App. of Texas), 145. 25. Insufficiency. An indictment under the statute, direct and certain as to time, place, and the party charged, is ordinarily sufficient, if the offense is described substantially in statutory language,. INDEX. '' " 611 fully apprising the accused of the nature and particular circum- stances of tlie charge against him. State v. Isaacson (Sup. Ot. of South Dakota), 311. 26. Larceny. An indictment for stealing the property of "John F. Hinck- ley" may be sustained by proof that it belonged to "J. F. Hinckley," where there is no reasonable doubt as to tjie iden- tity. Little V. People (Sup. Ct. of Illinois), 118. 27. Different criminal acts, constituting parts of the same tran- saction, such as burglary with intent to steal particular prop- erty and the stealing of such property, may be charged in the same indictment or count thereof. Aiken v. State, 59 N. W. 888; 41 ISTeb. 263. Lawhead v. State (Sup. Ct. of JSTebraska), 494. 28. An indictment, under section 3712 of the Code, must de- scribe the offense created by the statute, either in the terms of the statute itself or in language substantially equivalent thereto. Duff v. Commonwealth (Sup. Ct. of App. of Vir- ginia), 538. 29. The gravamen of the offense under this section is that the property levied upon is fraudulently removed, destroyed, re- ceived or secreted v^ith intent to defeat the levy or distress. Id. 30. It is not enough to charge that the act was done unlawfully or injuriously, but it is necessary either to frame the indict- ment so as to charge a larceny of the goods, or to follow sub- stantially the language of the statute and charge the act as having been fraudulently done. Id. 31. Larceny — Bailee. An indictment, which charges that defendant, being "the bailee and trustee" of a note, the property of another, embez- zled and converted it to his own use, charges but one crime and that crime under section 1800 of the Code. State v. Thomp- son (Sup. Ct. of Oregon), 239. 612 INDEX 32. !N"aines of witnesses. Altliougli the statute requiring the names of all witnesses examined before the grand jury to be placed at the foot of the indictment or indorsed thereon is mandatory, the overruling of a motion to quash, made after plea, and for the reason that a name has been omitted, is not allowed to testify on the part of the state, and it clearly and affirmatively appears that the accused was not injured by the exercise of the court's discre- tion. State V. Isaacson (Sup. Ct. of South Dakota), 311. 33. Perjury. An indictment for perjury, which charges that defendant, while on trial on a certain date, before a designated court, hav- ing jurisdiction, under an indictment for unlawfully selling liquor, and while a witness under oath, administered by the duly-authorized clerk of said court, falsely swore that he did not on a certain date sell spirituous liquors, knowing it to be false, the same being a material issue in the case, is sufficient imder section 1363 of Ann. Code. State v. Jolly (Sup. Ot. of Mississippi), 246. 34. Proof. " * Under an indictment in the usual form, averring that the offense was committed with deliberation, premeditation and ': malice aforethought, and without averments as to its having been committed in an attempt to perpetrate robbery, the facts ■ ' as to how the murder was committed, including the attempt to rob, may be shown. State v. Weems (Sup. Ct. of Iowa), 284. 35. Proof of office. In such case, it is notf necessary, in order to show that the party offered to be bribed was a commissioner, to introduce the record of his election and qualification. Kath v. State (Ct. of Crim. App. of Texas), 162. 36. Prostitution. Where a female takes a child under fifteen years of age and INDEX. 613 uses it for tlie purpose of sexual connection, she is guilty umier act March 29, 1889. State v. Davis (Ct. of General Sessions of Delaware), 348. 37. Eobbery. An information, which charges the defendant with having robbed another of a designated sum of lawful money, the cur- rency of the United States, charges a statutory offense, withiji the intemdmemt of Kev. St. section 810; and, as the conse- quence is that it, being in the words of the statute, or those cer- tain and equivalent having been employed, is valid and suffi- cient. State V. Henry (Sup. Ct. of Louisiana), 179.^ 38. Weight. The weight of the corroborating evidence is for the jury. State V. Feurerhaken (Sup. Ct. of Iowa), 391. mrOEMATIOK 1. Assault. "^. . , , , In a prosecution for an assault by a teacher on a child, an allegation in the information that it was committed with switches, is a charge of the means used, the only effect of which is to confine the state to the proof of such means. Kinnard v. State (Ct. of Crim. App. of Texas), 176. 2. Continuance. In such case, however, where a request is made to postpone the trial for twenty-four hours, to enable the defendant to meet the testimony expected to be given by the person whose name is so indorsed, it is an abuse of discretion to deny such request, if such VTitness is examined on the trial, and gives material tes- timony for the state, in making out its case in chief. Katisch- tolbv. State (Sup. Ct. of JSTebraska), 491. 8.. Indorsement of names. In the discretion of the trial court, the names of additional witnesses may be indorsed by the county attorney on the in- formation after the filing thereof, and before the trial. Id. 614 ' INDEX. '"'"l rN"TOXIOATING LIQUOKS. I Druggist. A druggist, who in good faith sells tincture of ginger as a medicine, cannot be convicted of selling intoxicating liquors because the buyer diluted the drug with water, and drank it as an intoxicant. Bertrand v. State (Sup. Ct. of Mississippi), 249. JUKISDICTIOK 1. Courts. Under article 81 of the Constitution, which confers jurisdic- tion upon the supreme court in criminal cases only, when the punishment of death or imprisonment at hard labor may be imposed, or a fine exceeding $300, is actually imposed, tha supreme court has no jurisdiction of an appeal from a judg- ment imposing a fine of $15 for gambling. State v. Case (Sup. Ct. of Louisiana), 183. 2. Misdemeanor. ' A judgment of the district court imposing upon the defend- ant a fine and costs for the violation of a city ordinance is a conviction for a misdemeanor, within the meaning of section 9 of chapter 96, Sess. Laws 1895, conferring jurisdiction upon the courts of appeals. City of Burlington v. Stockwell (Sup. Ct. of Kansas), 14. JUEOE. 1. Disqualification. "Whether the fact that a juror has formed an opinion on one or more facts of the case is a sufficient ground for challenge, is a question of fact for the court, and depends upon whether it would prevent the juror from rendering a true verdict upon the evidence. So held where a juror in a murder trial, who had formed an opinion that deceased was murdered, stated that he could render a verdict according to the evidence. State v. Weems (Sup. Ct. of Iowa), 282. 2. Disqualification. A juror, whose opinion is based upon hearsay and is not INDEX. 615 fixed and positive, is oompetent where lie swears that he can render a fair and impartial verdict. People v. O'Neill (Sup. Ct. of Michigan), 337. 3. But a juror, who testifies that, if he found the testimony about equally balanced, he would render a verdict of guilty, is in- competent. Id. JUEY. Waiver. Irregularity in the organization or empanelling of a petit jury is waived, if objection is not made before entering on the trial, Howard v. State (Sup. Ct. of Alabama), 447. LAEOENT. Proof. Evidence examined, and held to sustain the conviction of the charge of larceny. Lawhead v. State (Sup. Ct. of E"ebraska), 495. LIBEL. 1. Candidate for office. Every candidate for public office is amenable to public and private criticism, made in good faith, and based upon reason- able or probable cause. People v. Glassman. (Sup Ct. of Utah), 229. 2. A newspaper has the same right, as a private individual, to dis- cuss the character and qualifications of a candidate for office conferred by vote of the people, being responsible for an abuse of the right. Id. S. Judicial .proceedings. AVhere a reporter, or an editor, or a publishing company becomes the defendant in a prosecution for libel, based on a publication referring to evidence produced in the judicial pro- -ceeding, the defendant will be permitted to introduce the tes- timony to which such publication referred for the purpose of showing that the publication, or any portion thereof, is a fair and true report of such testimony, and, if this is shown, the 616 INDEX. publication is so far privileged that no malice will be inferred from the mere fact of publication. Id. 4. In sucb event, in order to convict, tbe prosecution must affirm- atively show express malice on the part of the defendant. Id. 6. Malice. To rebut malice, any mitigating circumstances, or such as show a justifiable motive, may be admitted, and likewise any evidence tending to show that the charges in a libelaus publi- cation are true. Id. 6. Where the prosecution has introduced evidence, which tends to show that the publication was made maliciously, it is com- petent for the defendant to rebut such evidence, and free them-r selves from the imputation of malice, by showing not only upon what evidence the publication was made, but also the cir- cumstances under which it was made, the sources of their in- formation, and the facts tending to show the motives which induced the publication, to enable the jury to pass upon the question whether or not the publication was in fact malic- ious, as being made in bad faith, or without probable cause. Id. I LOTTEEY. What constitutes. The offer of a choice out of a number of photographs to each purchaser of tobacco where the buyer is free to make his own choice before he takes the tobacco, is not a violation of chapter 277 of 1884. Commonwealth v. Emerson (Sup. Judicial Ct. of Massachusetts), 410. NEW TEIAL. 1. Continuance. A continuance, asked for on the fifth day of the trial, for the testimony of one already found guilty on the same charge, is properly denied. Magruder v. State (Ct. of Crim. App. of Texas), 173. index; 61T 2. Jurors. A new trial should not be granted upon tlie affidavit of jur- ors that they misunderstood a clear and explicit instruction. McCuUock V. State (Ct. of Crim. App. of Texas), 164. 3. Newly discovered evidence. ITewly discovered evidence, which can be used only for the- purpose of impeaching a witness, is not usually ground for a new trial. Miller v. State (Ct. Crim. App. of Texas), 157. 4. A new trial for newly discovered evidence, which is imma- terial, should not be granted. Magruder v. State (Ct. of Crim. App. of Texas), 173. 5. A motion for a new trial on the ground of newly discovered evidence will be overruled where the evidence was discovered before the close of the trial. State v. Lewis (Sup. Ct. of Iowa),, 381. 6. Venue. A new trial will be granted where the record does not show proof of venue. NUISANCE, il. Streets — Obstruction. When it is established that a party has, permanently and unlawfully, obstructed a material portion of a public street which the public have a right to use and, but for the obstruc- tion, would use, for public purposes, it is presumed that the public have been injured and put to inconvenience by reason of the obstruction, and this constitutes, in law, an indictable nuisance. Costello v. State (Sup. Ct. of Alabama), 454. 2. In such case, the prosecutor need go no further and prove that such erections actually incommode the general public. Id. 8, Evidence is not admissible to show that public injury did not result. Id.' 4, The rule is different where one is charged with an improper and detrimental exercise of his public right to use the street. Id. r^D, Crim, Rep,, Voi-, 1—73 6j.8 index 5. Charter of Birmingham does not empower city to permit th.o streets to be diverted from their public use to private purposes, by suffering individuals to obstruct and appropriate them. Id. PEEJUET. Oath. Where the indictment charges that the defendant was sworn by "the court," it is sustained by the evidence that the oath was administered either by the judge or the clerk. State v. Cay- wood (Sup. Ct. of Alabama), 276. POST OFFICE. Mails — Scheme to defraud. Schemes and acts, named in section 5480 of the TJ. S. K. S., are of the kind which are gainful to the wrongdoer, and no scheme or artifice which lacks this intent can be within the prohibition of the act. United States v. Beach (District Court, D. Colorado), 466. EAPE. 1. Character. "Where the facts proved are such as to satisfy the minds of the jury of the guilt of the accused, character, however excel- lent, is entitled to very little, if any, consideration or weight. State V. Smith (Ct. of Gen. Sess. of Delaware), 354. 2. Confession. The whole of what the prisoner said upon the subject at the time of making a confession should be taken together. Id. S. The jury may believe that part of the confession which crim- inates the accused and reject that part which is in his favor, or vice versa, if they see sufficient grounds for so doing. Id. 4. Defense. It is competent for the prosecution to prove that such female was under or of said age, though such indictment contains no such averment. Id. INDEX 619 5. Nor -will it be a defense, if at tlie time of said assault he in- tended to commit a rape upon her, that he afterwards desisted and abandoned such intent, either because of inability to effect a penetravit, or because he was prevented by the interference of the child's mother, or for any other cause. Id. 6. Definition. To constitute the statutory ofFense of felonious assault with intent to commit a rape, the circumstances must be such as to show that it would have been rape had the assailant carried out his attempt. Id. 7. In prosecutions for rape, when the fact of carnal penetration of the female under the age of consent is proven, the law con- clusively presumes, without propf, that force was used, and ' deems the crime complete when properly charged in the indict- ment. Id. 8. Evidence. On the trial of the issues joined by the plea of not guilty, it is error to admit evidence whose only effect is to show that others believe the accused guilty. Jones v. State (Sup. Ct. of Ohio), 530. 9. Indictment. In an indictment containing an allegation as to rape, it is not necessary to aver that the female upon whom the said offense was said to have been committed, was either under or of the age of consent. State v. Smith (Ct. of Gen. Sess. of Dela- ware), 354. 10. An indictment under section 6816, Eevised Statutes, for car- nally knowing a female child under fourteen years of age, need not aver that she is not the daughter or sister of the ac- cused. Howard v. State, 11 Ohio St. 328, distinguishing. Jones V. State (Sup. Ct. of Ohio), 530. 11. "Witness — Corroboration. The recollection of a witness concerning a fact in issue can- not be corroborated by the contents of a memorandum made 620 INDEX. by himself, long after tlie circumstance, showing his recollec- tion at a former date. Id. KEPOKTEKS. Transcript. An order will not be made in this court requiring a reporter of the district court to prepare a transcript of evidence pre- ' liminary to the settlement of a bill of exceptions, when the record discloses that a like order had been made by the proper district judge iipon the precedent condition that the reporter's, legal fees should first be paid, there being shown neither a com- pliance with such order nor any attempt to review it. Arga- bright V. State (Sup. Ct. of Nebraska), 481. SEDUCTOIT. Stepfather. Section 348T of Revised Statutes, 1889, which makes it an offense for a guardian or other person to carnally know a female under eighteen years of age confided to his care, applies to de- filing by a stepfather. State v. Sibley (Sup. Ct. of Missouri),, 133. SLANDER Malice. Upon the trial of an indictment for slander, an instruction: that, if the jury were satisfied beyond a reasonable doubt from' the evidence that the defendant said of the plaintiff "she looked like a woman who had miscarried," then he is guilty,, is erroneous. State v. Benton (Sup. Ct. of North Carolina),. 360. STATUTES. 1. Construction. If one use of a punctuation will cause a statute to convey a^ meaning, and the other use of punctuation will simply give it a collection of words without sense, the former construction should, of course, be adopted, an effect must be given to the: statute. State v. Pilgrim (Sup. Ct. of Montana), 4. INDEX. 621 2. Time of taking effect. The Act of April 29, 1895, in relation to forgery, did not take effect until ninety days after the adjournment of the legis- lature and was, therefore, unavailable in the case tried on July 23, 1895. Johnson v. State (Ct. of Grim. App. of Texas), lYO. TRIAL. 1. Charge. Under section 362 of Penal Code of 1895, on the trial for murder where the defendant attempts to testify on the ground of self defense, an instruction applying the measure of the circumstances justifying a killing in self defense to an indi- vidual of the class of men to which defendant belongs, instead of "a reasonable person," is properly refused. State v. Cadotte (Sup. Ct. of Montana), 8. 2. An insturction, which informs a jury that if they do not find the defendant guilty of murder in the first degree under the information, they could find him guilty of murder in the sec- ond degree, or manslaughter, or not guilty, is proper. Id. 3. Instruction. An instruction as to the duty of jurors, which induces a be- lief that they should not consult together in making their ver- dict, is misleading. Little v. People (Sup. Ct. of Illiuois), 118. 4. In a prosecution for malicious shooting at another with intent to kill, the court cannot change or modify the language of the statute in reference to the willful and malicious shooting with intent to kill so as to make it read that there must have been malice existing between the parties prior to the time of shoot- ing. Sapp V. Commonwealth (Ct. of App. of Kentucky), 127. 5. Where the court, by its declarations, in the presence of the jury, and its instructions to them, determined that the defend- . ant is guilty, it is error. People v. Glassman (Sup. Ct. of Utah), 229. 622 INDES. 6. Jury. The fact that a Juror is. a hrotlier-in-law of the county at- torney, who is prosecuting, does not disqualify him from act- ing as such juror. State v. Cadotte (Sup. Ct. of Montana), 7. 7. Materiality of testimony. The question of determining the materiality of the evidence- offered in a case is always one for the court, and the same rule should apply when it becomes necessary to determine whether evidence offered upon the trial of another case was material. State V. Caywood (Sup. Ct. of Iowa), 276. 8. Objection. An objection to a question generally, and a refusal to satisfy^ are a waiver to the right to assign error where the defect is one that could have been cured, had it been pointed out, by a mere change in the form of the question. Little v. People (Sup. Ct. of Illinois), 118. 9. Eejection — Testimony. Testimony apparently inadmissible is properly rejected where counsel does not state the purpose for which it is offered and thereby show this materiality. Pearson v. State (Ct. of Crim. App. of Texas), 149. 10. Eemaxks of counsel. Kemarks of the prosecuting attorney outside of the legiti- mate argument, are subjects of just criticisms. People v. O'Neill (Sup. Ct. of Michigan), 337. 11. Where the defendant apprehends any injury from the re- marks of the county attorney in his closing argument, it is hia duty to ask that the court eliminate the same from the con- sideration of the jury, before he can be heard to complain. Morris v. State (Ct. of Crim. App. of Texas), 548. 12. Eeraarks of prosecuting attorney. Where no exception is taken and no request for a reprimand made, improper remarks of the prosecuting attorney will not be considered. State v. Cadotte (Sup. Ct. of Montana), 8, INDEX 623 13. "Withdi'awing case. The court should not witlidraw the case from tne considera- tion of the jury, because the facts and circumstances, when dissevered and disconnected, are weak and inconclusive, if their probative forces when combined may be sufficient to sat- isfy the jury of the guilt of the defendant. Howard v. State (Sup. Ct. of Alabama), 447. WITNESS. , Acoomplicea. The court again affirms that juries may convict on the tes- timony, not corroborated, of the accomplice, if they believe his testimony. 1 Greenl. Ev., §§ 372, 379; 1 Archb. Or. Law, p. 502; State v. Prudhomme, 25 La. Ann. 522; State v. Eussell, 33 La. Ann. 138; Const., art 168. State v. Thomp- son (Sup. Ct. of Louisiana), 200. . Tlie decisions in the Callahan and Dudoussat Cases do not trench on previous decisions in reference to accomplices. One of these decisions holds that, if corroboration of the accomplice' is attempted, it must be by that species of confirmatory testi- mony the law exacts in such cases. The other holds that this court will not set aside a verdict on the ground that illegal tes- timony was admitted to sustain that of the accomplice, when it was an issue of fact, with wliich the court cannot deal, whether or not the witness was a feigned accomplice or an accomplice at all. State v. Callahan, 17 South. 50; 47 La. Ann. 444; State V. Dudoussat, 17 South. 685; 47 La. Ann. 977; Const., g^j.^_ 81^ — limiting the jurisdiction of this court in criminal oases. Id. . Child. In a criminal case, a boy fifteen years old, who states that the oath taken requires him to tell what is so, and that what is so is the truth, and what is not so is falsehood, and if he does not tell the truth he will be punished, is a competent witness. Stat© T. Cadotte (Sup. Ct. of Montana), 7. 624 INDEX 4. Corroboration — Accomplice. While, upon the trial of an indictment for burglary, tbe ■ jury may convict the defendant on the uncorroborated testi- mony of an accomplice, they are not bound to do so, nor is it ■ the rule, that as matter of law, they are bound to accept hia testimony as true, when corroborated. People v. Shaver (Sup. Ct. of Michigan), 316. 5. Credibility. The credibility of a witness who has been convicted of a felony and pardoned, is for the jury, vfhere there is some tes- timony against his reputation for truth and veracity. Doug- lass V. State (Ct. of Grim. App. of Texas), 161. 6. The credibility of a witness may be attacked by showing that he has been arrested and placed in jail charged with a felony; but, when so attacked, his credibility may be sustained by proof of good character for truth and veracity. Farmer v. State (Ct. of Crim. App. of Texas), 171. 7. Though the answer of the witness may involte his in contra- dictions calculated to impair his credibility, that is not a suffi- cient reason for excluding the inquiry, as proof by other wit- nesses that his statements are incorrect, would have the same effect. State v. Vickers (Sup. Ct. of Louisiana), 184. 8. Where defendant, as a witness in his own behalf, testified that he did not know that he was under indictment for other of- fenses, the indictment therefor was admissible in order to en- able the jury to pass upon the defendant's credibility as a witness. Brazos v. State (Ct. of Crim. App. of Texas), 558. 9. Credibility — Contradictory statements. Where, on the trial for murder, the defendant relying on ' self defense for acquittal, becomes a witness in his own behalf, it is competent to attack his credibility by proving statements made out of court as to the self defense, contrary to those which. he had made as a witness on the trial. State v. Cadotte (Sup. Ct. of Montana), Y. INDEX 625 10. Wliere a witness is examined upon Ms cross examination witli regard to matters which are immaterial to the issue in the case, the parties so examining the witness is bound by his an- swer, and cannot afterwards be permitted to introduce testi- mony in rebuttal to contradict such statements of the witness. State V. Zimmerman (Ct. of App. of Kansas, Southern De- partment, E. D.), 15. 11. Cross examination. It is error to permit a witness to be examined on cross ex- amination in regard to matters collateral to the main issue, and which have not been touched upon in the direct examina- tion of the witness. State v. Zimmerman (Ct. of App. of Kansas, Southern Department, E. D.), 15. 12. The cross examination must be confined to the matters about which the direct testimony was given. State v. Eifert (Sup. Ct. of Iowa), 403. « 13. A witness, called to prove an alibi, who testified that he thought of defendant when his attention was directed to the robbery, may be asked on cross examination, whether he then associated defendant with the robbery. Commonwealth v. Flynn (Sup. Judicial Ct. of Massachusetts), 418. 14. Evidence. The mere fact that there was an attempt to identify a re- volver as the pistol used and the attempt failed, does not render the evidence of the attempt immaterial so as to make the ad- mission of it error. State v. Weems (Sup. Ct. of Iowa), 283. 15. Where the second question, by the use of the word "and," couples it to the first question, so that the answer of the one is an answer to both, when the former has been excluded, the latter question should be excluded as incompetent. Id. 16. On the cross examination by defendant's counsel of one joint- ly indicted with defendant, a question as to whether the wit- ness thought it would benefit to tell "that stuff," is properly excluded. Id. Fed, Crik. Rep., Vol. 1—79 626 INDKX. 17. Examination. When a witness has testified directly to a fact from the ex-- perience of his own senses, the extent to which he should be allowed to testify to circumstances corroborative of the truth, of what he has thus sworn must rest in the discretion of the judge who tried the case. Commonwealth v. Bishop (Sup, Judicial Ct., of Massachusetts), 412. 18. Grand jury. The examination of a witness before the grand jury is no part of the record of the court. State v. Lewis (Sup. Ct. of Iowa), 380. 19. The grand jury may examine a witness, so long as he is not required to answer questions which may incriminate him. Id. 20. Impeachment. Upon the trial of such an indictment, evidence that defend- ant's general character for chastity is bad is not admissible to impeach him as a witness. State v. Sibley (Sup. Ct. of Mis- souri), 133. 21. When a witness for the state on the trial states an important and material fact on cross examination, which he failed to state as a witness on a former trial, this omission of the fact from his former statement cannot be used as a means of im- peaching his testimony directly by the state. State v. Vickers (Sup. Ct. of Louisiana), 184. 22. The state cannot impeach its own witness by asking irrele- vant questions, the object of which is to discredit his testimony. Id. 23. It is a general rule that a party cannot impeach the testimony of his own witness. Id. 24. After a statement by an impeaching witne^ to the general effect desired, and a specific denial of a fact is sought, the question should be such that the answer when given, if favor- able, would amount to such a denial. State v. Weems (Sup, Ct. of Iowa), 283. INDEX. 627 25. Notice., Before the trial commenced, counsel for tlie prosectition, in open court, gave oral notice that certain witnesses not exam- ined before the grand jury would be called on the part of the state, and it is held not necessarily error to allow such wit- nesses to testify, over an objection that said notice was not in writing and given at an earlier date. State v. Isaacson (Sup. Ct. of South Dakota), 311. 26. Previous declarations. When a party is bona fide sui-prised at the unexpected tes- timony of his witness, he may be permitted to interrogate as to previous declarations made by him inconsistent with his testi- mony, the object being to prove the witness' recollection, and to lead him, if mistaken, to review what he has said. State v. Vickers (Sup. Ct. of Louisiana), 184. 27. Privilege. Where a witness is, upon his refusal to answer questions before the grand jury, taken before the court, the court may, after fully instructing him as to his rights, direct him to re- turn for further examination before the grand jury. State v. Lewis (Sup. Ct. of Iowa), 380, 28. When admissible. If the sole effect of such interrogation is to discredit the witness, apart from statutory regulations, such evidence is not admissible; but if the purpose be to show that the witness is in error, it is admissible. State v. Vickers (Sup. Ct. of Lou- isiana), 184.