dorn^U Ham Bc\^m\ Eihtatry Cornell University Library KF9619.W18 Errors in criminal proceedings in ail st 3 1924 020 193 912 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/cu31924020193912 Errors in Criminal Proceedings In all States and Territories and Federal Courts Where the Judgments have been Affirmed Being the Errors in Criminal Proceedings, which were held by the Appellate Courts of the States, and of the United States and Territories, to be insufficient to justify reversals of the Judgments of Conviction entered therein, all of which have been gathered from direct sources. W.^ S.^'^alker, Of the Cincinnati Bar (Author of The Law of Real Estate Agency) The W. H. Anderson Co. Law Book Publishers Cincinnati, Ohio 1916 /3 7^/ 'A - COPTBIGHT, 1916, The W. H. Andebson Co. PREFACE This is perhaps the first book of its kind, and therefore a few remarks in support of its existence may not be out of place. There is no intended duplication or pad- ding. As nearly as possible the reasons in each case are given in the words of the court. These citations have been carefully compared with the reports, and their accuracy may be depended upon. In this way a great variety has been gained in^ ^h ^'iction employed. The vocabulary of any man is Hmited, and he is apt to fall into the use of set words and phrases which detract from the piquancy derived from the work of many different minds, which contribute something more or less original, in contradistinction to the stereotyped expressions so un- fortunately common when left to one individual. By collating opinions from the earliest times, arranging them substantially in the order of procedure in the courts, and carefully indexing them, it is hoped that this con- tribution may prove of great benefit to the Bench and to the Bar of the country. It will be observed that the states are in substantial accord in the mode of procedure followed in considering criminal cases on appeal and error. The rule is general that no conviction shall be set aside, except for the gravest errors involving positive prejudice to the ac- cused, in a case where the proof is either meager or conflicting, and the defendant appears to have been deprived of a fair trial. Where the proof fully and clearly sustains the conviction it will be sustained, notwith- iii Preface. standing serious error may have been committed. In other words — A conviction of crime, proof clear and strong, Excuses error and atones for wrong. In the course of a long trial it is difiScult for the best equipped judge to avoid an occasional lapse from the rigid rules of legal propriety. An example of this hap- pened when Ananias Godwin was called as a witness. The grave countenance of the court relaxed, and a bright smile stole across his face, plainly visible to the jtiry; counsel for the accused thereupon promptly excepted thereunto. In the appellate court is was held tha^ the smile was most natural, if not justifiable or excusable. (Sec. 51c.) In another case a prosecuting attorney so far forgot himself, referring to a flashy procuress on trial, as to say, "Every glitter of whose diamonds rep- resented a lost soul." (Sec. 57cccc.) Another made his description of the prisioner read as though clipped from the Bible. He "likened the accused to a wild beast in quest of prey." (Sec. 57ddd.) The alleged errors in the indictment, in the selection of the jury, in the reception and rejection of evidence, in the remarks of court and counsel, in the alleged mis- conduct of court, counsel, jurors and bystanders, and in the other proceedings, will be found abounding in infor- mation of the highest legal value. The book should be in the hands of every appellate judge, every prosecuting attorney, or other officer clothed with the same powers' and duties, and every lawyer who is called upon to defend criminal cases. March ,1, 1916. W. S. WALKER. IV TABLE OF CONTENTS. CHAPTER I FROM ARREST TO ARRAIGNMENT AND PLEA Sec. 1. Omission to administer oath to trial judge 1 2. The arrest 2 3. Prehminary examination 2 4. Grand jury 3 5. Indictment, information or complaint 3 6. Capias ad respondendum 15 7. Bill of particulars IS 8. Habeas corpus 17 9. Arraignment 17 10. Pleas 18 11. The similiter 22 CHAPTER n INTERI,OCUTORY PROCEEDINGS Sec. 12. Motions for continuances 23 13. Other motions 26 CHAPTER HI THE TRIAL Sec. 14. The petit jury 32 15. Errors at the trial 45 16. The opening statement by counsel 46 If. The witnesses 47 V Table of Contents. THE EVIDENCE Sec. 18. Confessions 53 19. The corpus delicti 54 20. Presumptions 55 21. Written evidence 56 22. Leading questions 63 23. Declarations 64 24. Dying declarations 67 25. Testimony by accused 68 26. Conspiracy 75 27. Incompetent or illegal evidence 78 28. Irrelevant and irresponsive evidence 81 29. Immaterial evidence 82 30. Conclusions 83 31. Hearsay 83 32. Improper questions properly answered 85 33. Admitting evidence relating to one count 85 34. Refusal to strike out 86 35. Admission of conversations 87 36. Cross-examination 87 Z7. Exceptions , 90 38. Impeaching evidence 91 39. Expert testimony 93 40. Opinion evidence 95 41. Evidence admitted out of correct order 97 42. Unanswered questions 98 43. Evidence admitted 99 44. Evidence excluded and afterward admitted .... 128 45. Interpreters 153 46. Stenographers 154 47. Miscellaneous rulings 156 48. Technical errors 156 49. Clerical errors 157 50. Irregularities 161 51. Alleged misconduct of the court 166 52. Alleged misconduct of counsel 172 vi Table of Contents. Sec. 53. Alleged misconduct of the jury, and irregularities in relation theireto 184 54. Alleged misconduct of witnesses 197 55. Alleged misconduct of bystanders 199 56. Remarks by the court 200 57. Remarks of counsel 214 58. Limiting counsel's time for argument 241 INSTRUCTIONS TO THE JURY 59. Miscellaneous instructions to the jury 242 60. Instructions directed to jury concerning their duty. 267 61. Voluminous instructions not scrutinized 285 62. Instructions relating to the accused 285 63. Instructions upon legal presumptions and the burden of proof 289 64. Assumptions in instructions given 294 65. Instructions defining words and phrases 297 66. do upon the subject of reasonable doubt. 298 67. do upon the possession by the accused of the stolen property 304 68. do relating to confessions 305 69. do upon conspiracies and conspirators. 306 70. do confused, involved, conflicting and ambiguous 309 71. do relating to insanity as a defense. ... 311 72. do upon the defense of alibi 312 73. do superfluous, inconsistent, immaterial, irrelevant and erroneous 314 74. do upon circumstantial evidence 315 75. do regarding impeached witnesses 316 76. do relating to motive and intent 317 77 . do upon accomplices and accessories. . . 319 78. do as to corroborative testimony 322 79. do relating to the reading of reports, etc. 323 80. do cured by striking out and withdraw- ing erroneous evidence 323 vii Table of Contents. Sec. 81. Instructions upon character and reputation 323 82. do upon the grade and degree of crimes. 325 83. do relating to counts of the indictment. 328 84. do relating to punishment 330 85. Placing undue stress upon a particular instruction. 331 86. Instructions submitting questions of law to the jury 331 87. Instructions invading the province of the jury. . 332 88. do to be considered as a whole 335 89. do refused 338 90. do omitted 352 91. The verdict 368 92. Findings submitted to the jury or omitted 375 CHAPTER IV PROCEEDINGS AFTER THE VERDICT Sec. 93. Variances Zll 94. Alleged errors in the record and in omissions therefrom 380 95. The judgment. 382 96. The sentence : 387 97. Motion for a new trial ; 390 98. Other rulings 391 vni ABBREVIATIONS Abst Abstract. Affm'd Affirmed. Affm'g Affirming. Ann. Cas Annotated Cases. App. Dis Appeal dismissed. App. Div. (N. Y.) Appellate Division (New York). App Appeals. Atl Atlantic Reporter. B. Mon Ben. Monroe Reports (Kentucky). C. C. A United States Circuit Court of Appeals. Cr. App Criminal Appeals. Cr. Rep Criminal Reports. D. L. N Detroit Legal News (Michigan). Err. & App. (N. J.) . .Errors and Appeals (New Jersey). Fed Federal Reporter. Gil Gilfillan's Reports (Minnesota). Gratt Grattan Reports (Virginia). How. Pr Howard Practice (New York). How. Pr. n. s Howard Practice, new series. Judgm't affm'd Judgment affirmed. Ky. L. R Kentucky Law Reporter. L. R. A Law Reports Annotated. L. R. A. n. s Law Reports Annotated, new series. La. Ann Louisiana Annual. Misc. Rep Miscellaneous Reports. N. E Northeastern Reporter. N. W Northwestern Reporter. N. J. L New Jersey Law Reports. N. Y. S New York Supplement. O. C. C Ohio Circuit Court Reports. jx Abbreviations. O. C. C. n. s Ohio Circuit Court Reports, new series. O. C. D Ohio Circuit Decisions. O. D. n. p Ohio Decisions, nisi prius. O. N. P Ohio Nisi Prius Reports. O. S Ohio State Reports. Pac Pacific Reporter. S. C Supreme Court. S. W Southwestern Reporter. Scam Scammon Reports (Illinois). Sup Supreme Court. w. o Without opinion. Writ of Cer Writ of Certiorari. ERRORS IN CRIMINAL PROCEEDINGS CHAPTER I. From Arrest Until Arraignment and Plea. Sec. 1. Omission to administer oatii to trial judge. 2. The arrest. 3. Preliminary examination. 4. Grand jury. 5. Indictment, information or complaint. 6. Capias ad respondendum. 7. Bill of particulars. 8. Habeas corpus. 9. Arraignment. 10. Pleas. 11. The similiter. Sec. 1. Omission to administer oath to trial judge. (a) Failure of trial judge to take the dueling oath. In a case in Tennessee error was alleged because of the failure of the trial judge to take the "dueling oath," and the court held that under acts 1911, c. 32, the fail- ure of a duly elected special judge, trying criminal causes, to take the "dueling oath" prescribed by Shan- non's Code, sec. 1073, but taking the oath prescribed by sec. 5731, is not ground for reversal, because not touch- 1 Errors — 1, § 2 Errors in Criminal Proceedings. ing the merits. Harris v. State (Tenn. Supreme Court), 149 Southwestern 911. Sec. 2. The arrest. (a) Arrest before the issuance of a warrant. Where the record shows a regular affidavit and war- rant in due form, and a subsequent arraignment, plea of not guilty, trial and conviction, an improper arrest be- fore the issuance of a warrant does not affect the merits of the case. Knox v. State (Ala. Supreme), 52 South- ern 526. (6) Remanding accused to sheriff, though he had given hail. Any error in remanding accused to the custody of the sheriff on his appearing for trial, though he had given bail, does not affect the trial nor vitiate the verdict, and will not be considered on appeal from a conviction. State V. Baker (Iowa Supreme), 125 Northwestern 659. Sec. 3. Preliminary examination. (o) Examination before the circuit judge instead of before a magistrate. Accused can not complain because when arrested on a magistrate's warrant, charging threats to do violence, they were taken before the circuit judge, rather than be- fore the magistrate, since under Criminal Code Proced- ure, sees. 385-387, the magistrate could not have tried the case further than to ascertain whether accused should be held to the circuit court, which had jurisdiction to try the charge and determine whether accused should be put under bond. Lowe v. Commonwealth, 33 Ky. L. R. 1078, 112 Southwestern 647. 2 From Arrest Until Arraignment and Plea. § 5 Sec. 4. Grand jury. (o) Attorney assisting prosecuting attorney in the room with the grand jury. That an attorney, assisting the prosecution, was pres- ent before the grand jury, is not ground for reversal. State V. Whitney, 7 Oregon 386; State v. Justus, 11 Or- egon 178. (b) Failure to spread the panel of grand jurors upon the minutes of the court. That the report of the grand jury commissioners, giv- ing the names of the panel of grand jurors for the term, was not spread upon the minutes of the court, as re- quired by acts 1901, c. 124, sec. 5, was a mere irregu- larity which could not have prejudiced an accused. Bel- den V. State (Tenn. Supreme), 127 S. W. 134. Sec. 5. Indictment, information or complaint. (a) It is too late on error to assert, for the first time, the insufficiency of the indictment. Where error is based on the insufficiency of an indict- ment, and no objection has been made by a motion to quash or by demurrer, the court will not inquire whether the facts averred constitute an ofifense punishable by statute. Kennedy v. State, 34 Ohio St. 310; Jones v. State, 14 Ohio Cir. Ct. 363, 7 Ohio C. Dec. 724. (6) Objection to the form of the indictment. An objection to the indictment, on the ground that the fact appears by way of recital, and not by positive aver- ment, is to matter of form, and is not available after the 3 § 5 Errors in Criminal Proceedings. trial. Stone v. People, 3 Scam. (111.) 126 (Supreme Court). (c) Sustaining demurrer to the complaint. Where the merits of the cause have been fairly tried below on issues of fact, judgment will not be reversed for an error in sustaining a demurrer to the complaint. State V. Bonham, 18 Ind. 231. (d) Conviction on one of two improperly joined counts. A conviction will not be reversed because two counts were improperly joined in an indictment or information, where it appears that the conviction was had on one count only. Myers v. State, 92 Ind. 390. (e) Conviction on one count, and second insufficient. Where one count of the affidavit sufficiently charges the crime of which the accused was convicted on suffi- cient evidence, the insufficiency of the second count in the affidavit is not available error to reverse the judg- ment. Stucker v. State, 171 Ind. 441, 84 Northeastern 971. (/) Indictment showing previous conviction taken to jury room. Under Criminal Code 1883, sec. 248, providing that "on retiring for deliberations the jury may take with! them all papers and other things which have been re-i ceived as evidence," it is not reversible error to give to] the jury the indictment on which is indorsed a previous jury's verdict of conviction, especially when a lesser punishment was inflicted. Harrold v. Commonwealth,; 10 Ky. L. R. 70, 8 Southwestern 194; Cargill v. Com- 4 From Arrest Until Arraignment and Plea. § 5 monwealth, 93 Ky. 578, 14 Ky. L. R. 517, 20 Southwest- ern, 782. (g) Error in writing "thirtee" for "thirteen" in a complaint. Defendant was tried on a complaint offered in a mu- nicipal court under public statute, c. 57, sec. 5, which forbids the selling of adulterated milk containing less than 13 percent of milk solids. A paper was given to the jury purporting to be a true copy of the complaint, ex- cept that the word "thirteen" in the original appears as "thirtee" in the copy. The court fully instructed the jury as to what would constitute an adulteration under said statute, to which no exception was taken. Held, that it would not be presumed, without evidence, that the jury would take the law from the copy of the com- plaint, and that the mistake of writing "thirtee" for "thirteen" was not a material error. Commonwealth v. Keenan, 140 Mass. 481, 5 Northeastern 477. (/t) Conviction on one count makes erroneous denial of quashing of a second count immaterial. If, at the trial of an indictment containing two counts the second of which is insufficient, no evidence was ad- mitted which was particularly applicable to the second count and not competent under the first count, and de- fendant was convicted on the first count on competent evidence, and no error is shown affecting his trial on that count by the refusal of the judge to quash the second count, and the conviction should stand. Commonwealth v. Andrews, 132 Mass. 263; Commonwealth v. Leach, 160 Mass. 542, 36 Northeastern 471. (i) Formal defects in an indictment. Formal defects in an indictment, to which no objection 5 § 5 Errors in Criminal Proceedings. was taken by demurrer or motion to quash before the jury were sworn, will not be considered on writ of error as removing a conviction under the indictment. Shuster V. State, 62 N. J. L. 521, 41 Atlantic 701; Connors v. State, 45 N. J. L. 211; State v. Bartolomew, 69 N. J. L. 160, 54 Atlantic 231. (/) Overruling motion to quash indictment. Where one charged with homicide was properly found guilty the error, if any, in overruling the motion to quash the indictment because of the disqualification of two members of the grand jury finding the indictment was not prejudicial. State v. Long (N. J. Law), 66 At- lantic 942; Walton v. State, 41 Tex. Crim. Rep. 454, 55 Southwestern 566. {k) Misjoinder of counts of the information. Where the court withdrew from ■ the jury the first count of the information, and submitted the case on the second count only, a misjoinder of the counts was not prejudicial to accused. State v. Keating, 223 Mo. 86, 122 Southwestern 699. (/) Failure formally to quash indictment. Under Revised Statutes 1899, sec. 2522 (under statutes 1906, p. 1503), providing that if two indictments for the same offense be pending against the accused at the same time, the indictment first found shall be deemed sus- pended and shall be quashed, and that the first informa- tion was not formally quashed on the record when the amended information was filed is not available as a ground for reversal on appeal. State v. Payne, 223 Mo. 112, 122 Southwestern 1062. 6 From Arrest Until Arraignment and Plea. § 5 (w) Refusal to require election between counts of indict- ment. Refusal to require election between counts for keeping gaming tables was harmless, where a conviction was had on one count only. State v. Cannon, 232 Mo. 705, 134 Southwestern 513; State v. Sechrist, 226 Mo. 574, 126 Southwestern 400; State v. Bussey, 58 Kans. 679, 50 Pa- cific 891 ; Henderson v. State, 50 Tex. Cr. Rep. 266, 96 Southwestern 37; Cornell v. State, 104 Wis. 527, 80 Northwestern 745; Railly v. State (Tex. Cr. App.), 121 Southwestern 1120. (m) Indorsing names of additional witnesses on the indict- ment at the trial. ' It is not reversible error to permit the prosecution to endorse the names of additional witnesses on the indict- ment on the trial, unless prejudicial to the substantial rights of the defendant. Hyde v. Ter., 8 Okla. 69, 56 Pacific 851. (o) Failure of the caption of the indictment to show that the grand jury was sworn. It is not ground for the reversal of a judgment against a prisoner for murder, that what is technically termed the caption of an indictment, does not show that the grand jury had been sworn, when it sufficiently appears in the body of the indictment that they were duly sworn. State V. Long, 1 Humphries (20 Tenn.) 386. (/>) Overruling of demurrer to ten counts of the indictment. Accused was indicted for violating the National Bank- ing Act, under an indictment containing 27 counts. He demurred unsuccessfully to ten counts, and was found 7 § 5 Errors in Criminal Proceedings. guilty on twenty-four, and sentenced to a term of eight years in the penitentiary on each count, with provision that time should run on all concurrently. Held, that as the sentence did not exceed that which might rightfully have been imposed on any one count, defendant was not prejudiced by the overruling of his demurrer to ten counts of the indictment. Clement v. United States, 149 Federal 305, 79 C. C. A. 243; writ of error denied, 206 U. S. 562; Dalby v. People, 124 111. 66. (q) Indictment under a statute requiring greater proof. Where the offense for which defendant was indicted violated two statutory provisions, he could not complain that the indictment was under one of them, rather than under the other, where a greater amount of proof was required to convict him under the provisions under which he was indicted than would have been required had he been indicted under the other statute. People v. Church, 3 N. Y. Cr. Rep. 57, 1 Howard Pr. n. s. 366. (r) Omission of the name in one place in the indictment. A copy of the indictment was duly served forty-eight hours before the arraignment. The only defect in the copy was, that at one place where the defendant's name appeared in the original it was omitted in the copy. The defendant's name appeared in the caption and in three other places. The statute only requires a copy of the in- dictment to be delivered in capital cases, and though defendant was indicted for murder in the first degree, he was convicted of a noncapital crime. Held, such defend- \ ant was not prejudiced by such omission. Allison v. State, 74 Ark. 444, 86 Southwestern 409. 8 From Arrest Until Arraignment and Plea. § 5 (s) Indorsement of the surname only on the indictment. Though the indorsement on an indictment of the sur- name only of a witness testifying before a grand jury does not comply with the statute requiring that the names of the witnesses testifying before it should be in- dorsed thereon, such irregularity was harmless, where accused knew the person named almost immediately after the finding of the indictment. People v. Quinn, 127 Cal. 542, 59 Pacific 87. (t) Overruling demurrer to a defective indictment. Error in overruling a demurrer to a defective indict- ment constitutes no ground for reversal. TuUy v. Com- monwealth, 74 Ky. (11 Bush) 154. ' (m) Indictment defective by reason of misnomer. Under code 1896, sec. 4333, providing that a convic- tion must not be reversed for error in the record, when the court is satisfied that no injury resulted therefrom, defendant was not entitled to a reversal because the copy of the indictment served on him before the trial alleged his name as "Neal Rigby," alias "Neal Rigby," while the indictment designated him as "Neal Rigsby," alias "Neal Rigby," prejudice not having been shown. Rigsby v. State (Ala. Sup.), 44 Southern 608. (v) Erroneous allegation in indictment as to the person injured. Under the express provisions of Kirby's Digest, sec. 2233, where an offense involves the commission of an in- jury to a person, and is described in other respects with sufificient certainty to identify the act, an erroneous alle- gation as to the person injured is not material. Bennett V. State, 84 Ark. 97, 104 Southwestern 928. 9 § 5 Errors in Criminal Proceedings. (w) Surplusage in an indictment. Under revisal of 1905, sec. 3333, making it an indicta- ble offense to break and enter "a storehouse . . . where any merchandise . . . shall be," the allegations of the indictment in a prosecution under such statute, containing in addition the words "with intent to commit larceny," is surplusage, and evidence offered of intent to steal is irrelevant and harmless. State v. Hooker, 145 N. C. 581, 59 Southeastern 866. (x) Reservation of decision on motion to elect between counts until the conclusion of the case. Where the complaint contained two counts, each charging defendants with making and assisting in mak- ing a, disturbance on the public streets, and the trial court reserved its decision upon defendants' motion to compel an election of counts until the conclusion of the case, when the people were compelled to elect, defend- ants were not injured by such action, the trial having proceeded in the same manner as if the election had been made when requested. People v. Burman, 154 Mich. 150, 117 Northwestern 589. (y) Allowance of an amendment to an indictment. The allowance of an amendment to an indictment, not necessary to sustain a conviction, is not reversible error. : Martin v. State (Miss. Supreme), 147 Southern 426. (s) Dismissal for lack of indictment or information not a bar to another prosecution. Since a dismissal under Pierce's Code, sec. 1530 (Bal- linger's Annotated Codes and Statutes, sec. 6910), pro-; viding that when a person is held to answer, if an infor- 10 From Arrest Until Arraignment and Plea. § 5 mation be not found or filed against him within thirty days, the court must order the prosecution dismissed, unless good cause to the contrary is shown, does not operate as a bar to another prosecution, and a discharge would not compel the prosecuting officer to commence anew before a committing magistrate, even if the trial court erred in failing to dismiss the prosecution, where no information was filed against accused within thirty days after he was bound over, the accused was not ag- grieved thereby, the court having required the prosecu- tion to file an information within the next five days, un- der which he was tried and convicted. State v. Fletcher, 50 Wash. 303, 97 Pacific 242. (aa) Lack of particularity in describing the offense in- tended to be charged in the indictment. The want of particularity in describing the offense in- tended to be charged is not ground for reversing a con- viction, where the indictment states the elements of the offense with sufficient particularity fully to advise de- fendant of the ci-ime charged, and to enable a conviction, if had, to be pleaded in bar of a subsequent prosecution for the same offense, in view of Revised Statutes of the United States, sec. 1025 (U. S. Comp. St. 1901, p. 720), providing that a conviction shall not be affected by any defect or imperfection in matter of form, not tending to prejudice defendant. United States v. Railroad Co., 146 Federal 298; United States v. Guilford, id.; affirmed, Railroad Co. v. United States, 212 U. S. 481. (bb) Permitting district attorney to testify to entering nol. pros. In a prosecution for burglary where accused intro- duces indictments against him charging assaults with a 11 § 5 Errors in Criminal Proceedings, gun on prosecuting witness and on prosecuting witness's wife, and also motions of the district attorney to nolle pros, them, error, if any, in permitting the district at- torney to testify that his reasons for dismissing the in- dictments were, that in his judgment the same facts were the basis of the prosecution under that indictment that were the basis of the present prosecution, and that the state could not carve two convictions out of the same facts, was not prejudicial. Railly v. State (Tex. Cr. Appeals), 121 Southwestern 1120. (cc) Failure to charge offense in the language of the statute. The failure to charge a statutory ofifense in the lan- guage of the statute should be disregarded on appeal, where no substantial right of accused is affected, in view of statute 1898, sec. 2829, providing that no judgment shall be reversed for errors in pleading not affecting the substantial rights of the adverse party, and sees. 4658 and 4659, relating to the sufficiency of indictments, in- formations, etc., in a criminal case, shall be abated or quashed for errors, where the person and the case may be readily understood by the court, and the court may, on motion, order an amendment correcting the defect. ' State V. Hall, 141 Wis. 30, 123 Northwestern 251. (dd) Indictment charging a railroad company with main-] taining a nuisance. .1 While a charge in an indictment of a railroad companyl for a nuisance, that it suffered "its railroad bridge to bel and remain out of repair, was a conclusion of law, and thei indictment was technically defective in not charging that! the bridge was on its right of way, it apprised it fullyj of the charge to be tried, which was the real purpose of| 12 From Arrest Until Arraignment and Plea. § 5 the indictment, so that defendant was not prejudiced, especially where the jury were required to find that the bridge was on its right of way before it could convict. Railroad Company v. Commonwealth (Ky. Ct. of Ap- peals), 129 Southwestern 94. (ee) Overruling demurrer to one when properly convicted on other counts. Overruling a demurrer to a count of an indictment results in no prejudice to the accused, where he is properly convicted upon other counts. Johnson v. Com- monwealth, 102 Va. 927, 46 Southeastern 789. {ff) Refusal to quash defective where one sufficient sup- ports conviction. If one of several counts Is sufficient to support a con- viction, the refusal to quash defective counts was not reversible error. People v. McCann, 247 111. 130, 93 Northeastern 100. {gg) Reasonable time to district attorney to file a new information. Since under Penal Code, sec. 1008, the district attorney has a reasonable time to file a new information after a demurrer is sustained to an information, if the order ex- tending the time within which to file an order extending the time within which to file a new information did not unreasonably extend the time, the fact that such order was made in the absence of the accused or his counsel would be immaterial, the original order directing the filing of the new information having been made in the accused's presence. People v. Arberry, 13 Cal. App. 749, 114 Pacific 411. 13 § 5 Errors in Criminal Proceedings. (hh) Failure to enter an order to prosecute under alleged true name of accused. Accused was indicted as J, alias W, and when the state began to 'introduce evidence, and the district attorney- had referred to accused as J, ahas W, his counsel stated that his name was J, and that he had never gone by the other name, and asked that he be prosecuted in his real name, and the court stated that it would enter an order to that effect, but failed to enter it, and referred in the instructions to J, alias W. Accused testified that he reg- istered at the hotel at which the crime was claimed to have been committed as W. Held, that accused could not have been injured by the court's failure to enter the order directing the accused to be prosecuted under the name of J, his true name. Jones v. State (Tex. Cr. Ap- peals), 141 Southwestern 953. {ii) Omission of the word "feloniously" from one of three counts of an information. Omission of the word "feloniously" from one of three' counts of an information, where conviction was sustain- able under the others, held harmless. Clarke v. People, 53 Col. 214, 125 Pacific 113. (;■/) Improperly describing the structure burglarized. The error in an indictment for burglary describing the structure burglarized as a railroad car instead of a build- ing, will not require a reversal, where accused in testify- ing referred to it as a box car. State v. Anderson (Iowa Supreme), 135 Northwestern 405. 14 From Arrest Until Arraignment and Plea. § 7 Sec. 6. Capias ad respondendum. (a) Overruling motion to quash capias. A party being indicted for playing at an unlawful game, the court immediately awarded a capias against him, returnable the next day. At the return day he moved to quash the capias as improper process, which motion the court overruled and compelled him to plead forthwith. Held, that the irregularity, if any, of this proceeding, was not sufficient ground for a reversal of the judgment against defendant. Pitman v. Common- wealth, 2 Robinson (Virginia) 800. Sec. 7. Bill of particulars. (a) Bill of particulars of charge of larceny and embessle- ment. In a prosecution for larceny in several counts, accused was not prejudiced by a bill of particulars which, after giving the required facts, also informed him that the commonwealth would claim a conviction as to each count for a single larceny, on proof of larceny proper, and of embezzlement, of obtaining money by criminal false pretenses ; or, as to some of the counts, of embez- zlement or fraudulent conversion by a broker, prohibited by Revised Laws, c. 208, sec. 47. Commonwealth v. King, 202 Mass. 379, 88 Northeastern 454. (&) Failure to grant hill of particulars on an indictment for embezzlement. Under sec. 136 of the Revised Criminal Procedure Act, pamph. L, 1898, p. 866, the denial of a matter of discre- tion is ground for reversal of a judgment of conviction, 15 § 7 Errors in Criminal Proceedings. on writ of error brought by the defendant, but only when it appears from the entire record of the proceed- ings that the plaintiff in error suffered manifest wrong or injury on the trial. Therefore, where the course of the trial shows that the granting of a bill of particulars on an indictment for ernbezzlement would not have aided the defense made to the charge, the denial of the motion therefor will not work a reversal. State v. Hatfield, 66 N. J. L. 443, 49 Atlantic 515; People v. Walker, 154 111. App. 3; People v. Joyce, id. 13, for unlawful sale of liquors. Where indictment recited all necessary facts. State v. Buehler, 132 La. 1065, 62 Southern 145. (c) Acceptance by the court of an insufficient bill of par-, ticulars. Where, on a former trial, accused was fully informed, of the particular occurrence charged against him, and ob- tained the entire case of the prosecution, as developed at the trial, the acceptance by the court of an insufficient! bill of particulars on the second trial would not be preju- dicial. State V. Railroad Co., 149 N. C. 508, 62 South-i eastern 1088. (d) Denial of motion for a bill of particulars. In a prosecution charging the unlawful sale of intoxi- cating liquors, it is not prejudicial error to deny a motion for a bill of particulars, if it appears that the names of the witnesses were on the back of the indictment, and) the record furnishes no reason to suppose that the dt4 fendant was not fully advised of the acts relied upon for; a conviction. People v. Brown, ISO 111. App. 365. 16 From Arrest Until Arraignment and Plea. §9 Sec. 8. Habeas corpus. (a) Giving defendant's Christian name incorrectly in the mittimus. The omission to give defendant's Christian name cor- rectly in the mittimus was harmless, where it appeared that defendant was the person designated by the mit- timus, and the time to be committed. Sturgeon v. Gray, 96 Ind. 166. (Application for writ of habeas corpus.) Sec. 9. Arraignment. (a) Failure to arraign for murder in the second degree. Where a person is arraigned for murder in the first degree and for assault with intent to kill, and convicted of assault with intent to kill, failure to arraign him for murder in the second degree, upon which he was in- dicted, is not prejudicial error. State v. Mitchell (Mo. Supreme), 140 Southwestern 887. (fc) Joint arraignment with a codcfendant. That defendant was arraigned jointly with a codcfend- ant is harmless error. Whitehead v. Commonwealth, 19 Grattan (Va.) 640. (c) Trial without arraignment and plea. Where the record shows that the case was tried as though on a plea of not guilty, and that defendant has ■received every right which he would have received had he been duly arraigned and had pleaded, the want of such arraignment and plea is not prejudicial within Kir- by's Digest, sec. 2605, authorizing reversal only where the error has been prejudicial. Hobbs v. State, 86 Ark. 360, 111 Southwestern 264; Brewer v. State, 72 Ark. 145. 78 Southwestern 772>. 17 Errors — 2. § 10 Errors in Criminal Proceedings. Sec. 10. Pleas. (a) Sustaining demurrer to or striking out pleas. Where defendant files two pleas, he is not injured by the judgment of the court erroneously sustaining a de- murrer or striking out one, if he has another plea under which he could have introduced any evidence upon the trial that would have been admissible under the plea stricken. Norris v. State, 22 Ark. 524; Wood v. State, 130 Ind. 364, 30 Northeastern 309; People v. Ricker, 142 111. 650; Neaderhouser v. State, 28 Ind. 257; Peelee v. State, 161 Ind. 378, 68 Northeastern 682. (b) Failure to enter plea in a misdemeanor case. A judgment of reversal will not be ordered in a mis- demeanor case for failure to enter a plea, where the court and parties treated the case as at issue on the plea of not guilty. Moore v. State, 51 Ark. 130. (c) Overruling demurrer to the replication to plea. Error in carrying back to the plea a demurrer to the replication overruled is not ground of reversal, where the defendant stood by his demurrer and allowed judg- ment to go against him on that issue, the replication being good. Poor v. People, 142 111. 309. (rf) Overruling plea in abatement available under plea of not guilty. In a prosecution for a conspiracy to commit larceny, defendant's plea in abatement, that he had already been arrested for the same ofifense, and hearing and discharge of the accused by a United States commissioner, was overruled. Held, that the ruling was not prejudicial, ; since, under acts 1905, p. 627, chap. 169, sec. 198, he 18 From Arrest Until Arraignment and Plea. § 10 might have offered proof of a former jeopardy under his plea of not guilty. Williams v. State, 169 Ind. 384, 82 Northeastern 790; Lucas v. State (Ind. Supreme), 90 Northeastern 305. (e) Unimportance of plea in abatement by acquittal. A ruling upon a question presented by the plea in abatement, which becomes unimportant by reason of an acquittal of the only crime to which it related, will not be reviewed on error. People v. Knapp, 26 Mich. 112. . (/) Entering plea in bar without withdrawing plea of not guilty. Where the court entertains and considers the merits of a plea in bar, without a formal withdrawal of the plea of not guilty, it is, at most, a mere irregularity, and the action of the court thereon may be the subject of re- view, the plea of not guilty being considered as construc- tively withdrawn. George v. State, 59 Neb. 163, 80 Northwestern 486. (g) Refusing permission to defendant to withdraw plea and file a motion to quash. The refusal of the court to permit the defendant to withdraw his plea and file a motion to quash, on the ground of duplicity in joining counts charging different offenses, if erroneous, was without prejudice, where the government dismisses all except one of the counts. Wal- ler V. United States, 179 Federal 810, 103 C. C. A. 302, 31 L. R. A. n. s. 113. (h) Refusal to submit to the jury pleas of former acquittal and jeopardy. While Penal Code, Arizona, 1901, sees. 875, 894, 895, 19 § 10 Errors in Criminal Proceedings. recognize pleas of former acquittal and former jeopardy as raising issues of fact, and require such issues, in fel- ony cases, to be tried by a jury, yet where the evidence in support of such a plea is wholly documentary and un- disputed, and is sufficient in law to sustain the plea, al- though the better practice is to instruct the jury to re- turn a verdict thereon, the refusal of the court to submit the issue is without prejudice to the defendant, and is not ground for reversal of the judgment under Penal Code of Arizona, 1901, sec. 1174, providing that a de- parture from the form or mode prescribed in respect to pleadings or proceedings shall not render the same in- valid, unless it shall actually have prejudiced defendant, or tended to his prejudice in respect to a substantial right. Storm v. Ter. of Arizona, 170 Federal, 423, 95 C. C. A. 593. Overruling plea of former jeopardy, same being available under the plea of not guilty. Lucas v. State (Ind. Supreme), 90 Northeastern 305. (i) Refusal to allow amended answer. When matters averred in the additional plea in an amended answer might have been proved under the orig- inal answer, a refusal to allow the filing of the former is harmless error. Hopkins v. State, S3 Md. 502. (/) Separate trial of plea of immitnity. Accused, charged with crime, entered a plea of im- ; munity from prosecution and a plea of not guilty. At his request the plea of immunity was tried separately, i The information charged the ofifense adequately, and set | out the transaction on account of which he was at-] tempted to be prosecuted. Held, that a conviction on the plea of not guilty would not be set aside because the | plea of immunity was tried separately, since no prejudice 20 From Arrest Until Arraignment and Plea. § 10 resulted to accused. State v. Murphy, 128 Wis. 201, 107 Northwestern 470. (k) Plea of former conviction disallowed. A new trial having been granted to defendant after conviction of manslaughter, on an information charging murder, he was again placed on trial for murder, and the trial proceeded without any plea of former conviction until nearly all the instructions had been given, when an inefifectual plea of former conviction was offered. This was disallowed, and was not corrected until the jury had reached a verdict convicting defendant of manslaughter. Held, that defendant having received the same sentence at both trials, he was not prejudiced by the court's de- nial of the plea. People v. Solani, 6 Cal. App. 103, 91 Pacific 654. (/) Dismissal on demurrer of plea in abatement. Defendant having filed a plea in abatement asserting that he had been denied a preliminary examination, the prosecuting attorney offered to make proof that such ex- amination was had, but the judge advised him to inter- pose a demurrer, which he did; whereupon the plea was dismissed. It was obvious that the court assumed that the plea attempted to raise the insufficiency of the ex- amination, in fact held and reported upon the record by the justice, and defendant, with this obvious fact before him, made no suggestion of a desire to raise other ques- tions of fact upon that examination. Held, that the error in considering facts dehors the plea was harmless, since the record of the justice, which was before the court, showed a sufficient preliminary examination, so that the same result would have been obtained had reg- 21 § 11 Errors in Criminal Proceedings. ular proceedings been followed. Guenther v. State (Wis. Supreme), 118 Northwestern 640. (to) Irregularity in overruling plea in abatement. Where the record transmitted to the circuit court by the justice holding a preliminary examination showed that there had been an examination, and that accused was "bound over" to the circuit court, and that the bond for his appearance was approved, the irregularity, if any, in summarily overruling the plea in abatement for want of preliminary examination was not prejudicial, the words "bound over" being understood in law as requir- ing one to give bail to appear at the trial of the case. Hack V. State, 141 Wis. 346, 124 Northwestern 492. (m) Omission of the accused to plead. Where accused was tried as though he had pleaded not guilty, and he had ample time to prepare for his de- fense, he could not take advantage of his omission to plead. State v. Corwin (Iowa Supreme), 131 North- western 659. (o) Denial of separate trial of plea of former jeopardy. The denial of a separate trial upon defendant's plea of former jeopardy, if error, was harmless, the ruling being merely a question of practice. State v. Elliott (Wash. Supreme), 124 Pacific 212. Sec. 11. The similiter. (a) Lack of similiter. Lack of similiter in a criminal prosecution is not ground for reversal. State v. Lavin (W. Va. Supreme), 60 Southeastern 888. 22 CHAPTER II. Interlocutory Proceedings. Sec. 12. Motions for continuances. 13. Other motions. Sec. 12. Motions for continuances. (a) Refusal to grant continuances. In a motion asking for a continuance much must be left to the tribunal before which the parties are. Cir- cumstances occurring in its presence often indicate whether such motions are in good faith; and a writ of error will not be sustained on account of a refusal of the court to grant a continuance, unless it is a plain and palpable instance of arbitrary and oppressive exercise of the discretion necessarily vested by law. Gladden v. State, 12 Fla. 562; Barber v. State, 13 Fla. 675; An- drews V. State, 21 Fla. 598; Saxton v. Commonwealth, 6 Ky. L. R. 440; Smith v. Commonwealth, 19 Ky. L. R. 1073, 42 Southwestern 1138; Nichols v. Commonwealth, 74 Ky. (11 Bush) 575; People v. Purnell, 106 Mich. 27, 63 Northwestern 986; Heatley v. Ter., 15 Okla. 72, 78 Pacific 79; Fulkerson v. State (Tex. Cr. App.), 121 Southwestern 1111; Hinman v. State (Tex. Cr. App.), 127 Southwestern 221 ; Roquemue v. State (Tex. Cr. App.), 129 Southwestern 1120; Perry v. State (Tex. Cr. App.), 133 Southwestern 685; Allen v. State (Tex. Cr. App.), 141 Southwestern 983; Burger v. State (Ga. Su- preme). 76 Southeastern 863; State v. Davies (S. D. Supreme), 145 Northwestern 719. 23 § 12 Errors in Criminal Proceedings. (&) When court authorized to refuse a continuance. When the defendant, without consulting the court or the state's solicitor, excuses a witness, the court will not be reversed for refusing to continue the case to secure his attendance. McDuffee v. State, 55 Fla. 125. (c) When abuse of discretion is not shown in denying continuance. An abuse of discretion in refusing a continuance is not shown when the absent witness is wanted merely for an impeachment for which the predicate had not been laid. Stone V. State, 57 Fla. 28. (d) Refusal for witness afterward examined. The refusal of a continuance based on the absence of a witness is not ground for reversal, where the witness appeared during the trial and was examined on the part of the defense. Crews v. People, 120 111. 317; Marks v. State, 101 Ind. 353. (e) The denial of a continuance to work a reversal must be clearly improper. Where an appHcation for a continuance is overruled, a judgment of conviction will not be reversed unless it clearly appears to have been improperly refused. Canter V. State, 1 Tex. App. 403. (/) Denial of a continuance to prove an alibi. Defendant applied for a continuance, on the ground of absent witnesses by whom he expected to prove an alibi, which was denied. The evidence conclusively proved the defendant guilty. Held, that the judgment would not be reversed because a continuance was denied. Wright v. State (Tex. Cr. App.), 45 Southwestern 723. 24 Interlocutory Proceedings. § 12 (g) Denial of continuance to show threats by decedent against him. A trial court refused to grant a continuance on the showing of defendant, accused of murder, that he had is- sued a subpoena for an absent witness, by whom he ex- pected to show threats by deceased. Held that, where defendant does not remember what became of the sub- poena, and where the evidence was immaterial and prob- ably untrue, and the testimony amply supports the con- viction, the continuance must be held to have been prop- erly refused. Duck v. State (Tex. Cr. App.), 45 South- western 802; Godwin v. State, 44 Tex. Cr. Rep. 599, 73 Southwestern 804. (h) Denial of continuance for illness of counsel. It was not error to refuse a continuance asked, on the ground that one of the defendant's two attorneys was not well, where he fully discharged his duty to defend- ant. Hayden v. Commonwealth, 20 Ky. L. R. 274, 45 Southwestern 886; Thompson v. State, 45 Tex. Cr. Rep. 397, 77 Southwestern 449. (i) Refusal to grant continuance where defense was in- sanity. Harm from refusal of continuance for absence of wit- ness in a case in which insanity was a defense, is not shown by a bill of exceptions stating that it was ex- pected to prove by said witness that a month before the offense witness heard defendant hallooing and screaming in the middle of the night, and found him lying in the road, having some kind of a spell, and that he was not frightened by" witness's dog jumping on him, it not being shown whether defendant was intoxicated or not caused 25 § 13 Errors in Criminal Proceedings. his condition. Young v. State (Tex. Cr. App.), 102 Southwestern 1144. (/) Denial of continuance for absence of witnesses to prove reputation of accused. Denial of a continuance for absence of witnesses by whom accused expected to prove his general reputation prior to the transaction in question ; held, not error. Jor- dan V. State (Tex. Cr. App.), 143 Southwestern 623; O'Neal V. State (Tex. Cr. App.), 146 Southwestern 938. (&) Denial of continuance because accused zvas tried at same term for another crime. The refusal of a continuance of a suit because the ac- cused was tried at the same term for another crime, making it difficult to obtain an impartial jury, if error, is harmless. Lawson v. State (Tex. Cr. App.), 148 Southwestern 587. {I) Denial of continuance for illness of accused. It was not error to overrule a motion for a continu- ance for illness of accused, where the record shows that he appeared and attended throughout- the trial. Gregg V. City of Kingfisher (Okla. Crim. App.), 125 Pacific 1093. Sec. 13. Other motions. (a) Failure to elect on which offense to try. It is no ground for a reversal in a proceeding under the dram-shop act, that the prosecution was not com- _ pelled to elect specifically what particular •offense undei| the statute the defendant was to be required to answerl 26 Interlocutory Proceedings. § 13 when it appears that upon the trial no evidence was of- fered except under one clause of the statute. Leonard V. People, 81 111. 308. (6) Refusal of a change of venue. The court will not reverse for a refusal to grant a change of venue, on the ground of prejudice of the judge, where his trial is, in fact, had before another judge. There was no harm shown to accused. Mix v. People, 122 111. .641 ; Hicks v. Commonwealth, 3 Ky. L. R. 87 ; Hasson v. Commonwealth, 10 Ky. L. R. 1054, 11 South- western 286; Stafford v. Commonwealth, 13 Ky. L. R. 665, 18 Southwestern 11; Territory v. Manton, 8 Mont. 103, 19 Pacific 387; Bowles v. Commonwealth, 103 Va. 816, 48 Southeastern 527; Lemons v. State (Tex. Cr. App.), 128 Southwestern 416. (c) Erroneous denial of application for a change of venue. A conviction will not be reversed for erroneous denial of a change of venue, where accused did not exhaust his peremptory challenges. Regan v. State, 87 Miss. 422, 39 Southern 1002. (d) Denial of defendants motion to examine child prose- cutrix. Where, in a prosecution for rape of a child, the family physician testified as to an examination made by him of prosecutrix, the denial of defendant's motion for the ap- pointment of a physician to examine prosecutrix was not prejudicial, since the result of another examination might have been unfavorable to defendant. People v. Planchino (Cal. App.), 91 Pacific 112. 27 § 13 Errors in Criminal Proceedings (e) Denial of defendant's motion to exhibit his body to jury to show deformity. Where accused and his physician testified fully con- cerning accused's physical deformity, in that one leg was considerably shorter than the other, and the limb was smaller in circumference, and this evidence was not con- tradicted, accused was not prejudiced by the denial of his motion to exhibit his body to the jury in order to show such deformity. People v. Loomer (Cal. App.), 110 Pacific 466. (/). Denial of defendant's motion to be recommitted to the county jail. The overruling of defendant's motion to be recom- mitted to the county jail, held not prejudicial, though the court's order for his return to the jail, from which he had been sent to the insane asylum, was informal. Commonwealth v. Spencer, 212 Mass. 438, 99 North- eastern 266. (g) Denial of motion to discharge defendants. There is no practice which would authorize the court] to discharge the defendants, on motion, because the onlyi evidence against them is the uncorroborated evidence of accomplices. Commonwealth v. DeMasi, 234 Pa. St. S70„| 83 Atlantic 430, 28 Ann. Cases 1388. ' (h) Denial of defendant's motion to take from the jury. A criminal case will not be reversed for refusal to take the case from the jury at the close of the plaintiff's tes-| timony, on the ground that the proof did not establish a prima facie case, where defendant did not rest on his motion, if the testimony subsequently introduced by de- 28 Interlocutory Proceedings. § 13 fendant supplied the omission in the plaintiff's testimony. People V. Barlow, 134 Mich. 394, 96 Northwestern 482, 10 D. L. N. 478. (i) Denial of motion to reopen case for failure of proof upon one count. The first count in an indictment for arson charged ownership in a certain trustee, and the second count in such trustee's successor. The state proceeded on the first count and, at the close of the evidence, defendant moved for a reopening of the case, for the purpose of showing that the original trustee had been succeeded and that therefore the proof did not sustain the allegation of ownership in the first count. Held, that a denial of the motion was harmless, since had it been granted the state might have elected to proceed under the second count. Lipschitz V. People, 25 Colo. 261, 53 Pacific 1111. 29 CHAPTER III The Trial. Sec. 14. The petit jury. 15. Errors at the trial. 16. The opening statement by counsel. 17. The witnesses. EVIDENCE. Sec. 18. Confessions. 19. The corpus delicti. 20. Presumptions. 21. Written evidence. 22. Leading questions. 23. Declarations. 24. Dying declarations. 25. Testimony by accused. 26. Conspiracy. 27. Incompetent or illegal evidence. 28. Irrelevant and irresponsive evidence. 29. Immaterial evidence. 30. Conclusions. 31. Hearsay. 32. Improper questions properly answered. 33. Admitting evidence relating to one count. 34. Refusal to stril^e out. 35. Admission of conversations. 36. Cross-examination. 37. Exceptions. 38. Impeaching evidence. 39. Expert testimony. 40. Opinion evidence. 41. Evidence admitted out of correct order. 42. Unanswered questions. 43. Evidence admitted. 44. Evidence excluded and afterwards admitted. 54. Interpreters. 46. Stenographers. 30 The Trial. §14 Sec. 47. Miscellaneous rulings. 48. Technical errors. 49. Clerical errors. 50. Irregularities. 51. Alleged misconduct of the court. 52. Alleged misconduct of counsel. 53. Alleged misconduct of the jury, and irregularities in relation thereto. 54. Alleged misconduct of witnesses. 55. Alleged misconduct of bystanders. 56. Remarks by the court. 57. Remarks of counsel. 58. Limiting counsel's time for argument. INSTRUCTIONS TO THE JURY. 59. Miscellaneous instructions to the jury. 60. Instructions directed to jury concerning their duty. 61. Voluminous instructions not scrutinized. 62. Instructions relating to the accused. 63. Instructions upon legal presumptions and the burden of proof. 64. Assumptions in instructions given. 65. Instructions defining words and phrases. 66. do upon the subject of reasonable doubt. 67. do upon the possession by the accused of the stolen property. 68. do relating to confessions. 69. do upon conspiracies and conspirators. 70. do confused, involved, conflicting and ambiguous. 71. do relating to insanity as a defense. 72. do upon the defense of alibi. 73. do superfluous, inconsistent, immaterial, irrelevant and erroneous. 74. do upon circumstantial evidence. 75. do regarding impeached witnesses. 76. do relating to motive and intent. 77. do upon accomplices and accessories. 78. do as to corroborative testimony. 79. do relating to the reading of reports, etc. 80. do cured by striking out and withdrawing erroneous evidence. 81. do upon character and reputation. 82. do upon the grade and degree of crimes. 31 § 14 Errors in Criminal Proceedings. Sec. 83. Instructions relating to counts of the indictment. 84. do relating to punishment. 85. Placing undue stress upon a particular instruction. 86. Instructions submitting questions of law to the jury. 87. do invading the province of the jury. 88. do to be considered as a whole. 89. do refused. 90. do omitted. 91. The verdict. 92. Findings submitted to the jury or omitted. Sec. 14. The petit jury. (a) Erroneous oath administered to jury on voir dire. The record shows that the oath administered to the jurors on their voir dire was as follows: "You and each of you do solemnly swear you shall give such answers to such questions as may be propounded to you, touch- ing your competency as jurors, as shall be the truth, the whole truth, and nothing but the truth, so help you God." No objection to the form of the oath was made. The jurors were accepted, duly sworn and tried the cause. There is no particular form for such oath pre- scribed by statute. Held, not to be error. Denham v. State, 22 Fla. 664. (b) Summoning jurors from a particular precinct. A judgment will not be reversed because about twenty of fifty jurors in attendance on the court were from the single precinct in which the prosecuting attorneys are shown by affidavit to have much personal influence, where no objection was made to the jury or the array until after the verdict. Sylvester v. State, 46 Fla. 166. (c) Refusal to allow certain questions to be put to the jury. The refusal of the trial court to permit counsel for de- fendant in a criminal case to interrogate the jurors, after 32 The Trial. §14 they were sworn in chief, as to whether they were upon the grand jury that found tiie indictment, can not be disturbed by the appellate court, where no excuse for the failure to put the questions on the voir dire examination was shown, except that the matter was "overlooked," and where it was not suggested to the court that there was any reason to believe that any juror was a member of such grand jury. Ferrell v. State, 45 Fla. 26. (d) Challenged jtiror excused and another substituted. It is not a sufficient ground of exception to the ruling of the trial court sustaining the challenge of the state to a juror, that the defendant was thereby, after having exhausted his challenges, compelled to accept another juror, to whom he objected because of this ruling of the court, when it does not appear that the juror that was forced upon him was not, in every way competent, qual- ified and unbiased, and when no injury is shown. Leap- trot V. State, 51 Fla. 57. Substituted for one excused for sickness. Catron v. State, 52 Neb. 389, 72 North- western 154. {e) Juror alleged to have been biased against the accused. The ruling of the trial court upon the testimony pro- duced in support and in denial of the ground in a motien for a new trial, alleging that one of the jurors was biased against the accused, and had expressed an opinion that he was guilty before the trial, will not be disturbed by the appellate court, where the evidence is conflicting, and there is nothing to show an abuse of discretion. Such questions must necessarily be left to the discretion of the trial judge, who may know the witnesses and be able to judge of their credibility. Starke v. State, 49 Fla. 41; Territory v. Emilio (Ter. of N. M.), 89 Pacific 33 Errors — 3. § 14 Errors in Criminal Proceedings. 239. Expressing opinion adverse to accused. Cornelius V. Commonwealth, 54 Ky. (15 B. Mon.) 539. (/) Erroneously sustaining challenge for cause. The erroneous sustaining of a challenge for cause is not ground of error, inasmuch as the accused had not exhausted his peremptory challenges. Collins v. People, 103 111. 21. After peremptories exhausted. Ochs v. 'People, 124 111. 399. Unavailable if peremptories unex- hausted. State V. Lav^lor, 28 Minn. 216, 9 Northwest- ern, 698. {g) Error in selecting and impaneling jury. A judgment will not be reversed for error in selecting and impaneling a jury, where competent, fair and im- partial jurors have been secured, and the complaining party has not been injured thereby. Ochs v. People, 25 111. App. 379; Queenan v. Territory, 11 Okla. 261, 71 Pacific 218, affirmed 190 U. S. 548, 61 L. R. A. 324; Peo- ple V. Brown, 150 111. App. 365. Erroneous drawing of jury cured by offer to amend. People v. Craig, 48 Mich. 502, 12 Northwestern 675. \h) Improper filling of the panel. Where nO prejudice to the accused is shown, it is no ground for reversal that, upon the exhaustion of the panel, the judge improperly ordered the clerk to draw a number of jurors to fill the panel, instead of directing the sheriff to summon. Siebert v. People, 143 111. 571. (t) Wrongful discharge of juror. From the mere fact of a wrongful discharge of a juror on the ground of incompetency, over defendant's objec- 34 The Trial. § 14 tion, it will not be presumed that defendant was preju- diced, the matter being within the sound discretion of the trial judge, in the absence of anything to show af- firmatively that he was, a reversal will not be granted. Stephenson v. State, 110 Ind. 358, 11 Northeastern 360. (;') Decision of court on challenge to the panel. Under Criminal Code, sec. 281, a decision of the trial court on a challenge to the panel of the jury is not sub- ject to revision on appeal. Forman v. Commonwealth, 86 Ky. 354, 9 Ky. L. R. 2759, 6 Soqthwestern 579; O'Brien v. Commonwealth, 89 Ky. 354, 11 Ky. L. R. 534, 12 Southwestern 471 ; Clawson v. State, 59 N. J. L. 434, 36 Atlantic 886. (k) Overruling challenge to juror. Decisions overruling a challenge to a juror for cause, and overruling a motion for a new trial on the ground of newly discovered evidence, can not be considered sep- arately in a criminal case. Smith v. Commonwealth, 13 Ky. L. R. 612, 17 Southwestern 868. (/) Erroneously withholding names of jurors drawn.. On the day preceding the trial the court ordered the summoning of additional jurors under the provisions of act 204 of the laws of 1893, and after the drawing fur- ther directed that the names so drawn be withheld from the public and from counsel for both parties. On the morning of the trial counsel for defendant excepted to the orders so entered, but interposed no challenge to the array, nor was the voir dire examination restricted in any way. Held, that the practice pursued was not so 35 § 14 Errors in Criminal Proceedings. prejudicial to defendant as to entitle him to a new trial. People V. Considine, 105 Mich. 149, 63 Northwestern 196. (m) Sheriff's failure to comply with the law regarding jurors. Section 9 of the act concerning juries (Rev. 1, p. 526), makes it the duty of the sheriff to deHver a list of the jurors by him summoned for service at such term, cer- tified by him to be a true list, to the clerk of such court, who shall thereupon file the said list, and forthwith lay the same before the said court; and no person shall serve as a juror whose name is not contained in said list, if objection be made before such person is sworn or af- firmed. Held, that the sheriff's failure to comply with this statutory requirement was a mere irregularity, which could, in no wise have prejudiced the defendant in main- taining his defense upon the merits; and the statute for- bids the reversal of a judgment upon an indictment for any imperfection, omission, defect in, or lack of form, or for any error, except such as shall or may have preju- diced the defendant in maintaining his defense upon the merits. Johnson v. State, 59 N. J. L. 525, 37 Atlantic 949, affirming 59 N. J. L. 271, 35 Atlantic 787. (m) Substituting juror during progress of the trial. Where, after part of the evidence had been heard, and the court called a new juror, and afterwards allowed both-*: defendant and the territory to exercise peremptory chal^ lenges, the fact that this method was adopted instead of the one appointed by statute gave rise to remark and . technical objection, it did not prejudice defendant's rights and was not cause for reversal. Turner v. Territory, 15 Okla. 557, 82 Pacific 650. 36 The Trial. §14 (o) Juror on voir dire asked if he had any scruples against hanging. When, on a prosecution for murder, the attorney gen- eral asked a juror on his voir dire, in the presence of other selected jurymen, whether he had scruples against hanging a man for murder and if he beheved the law- wrong, a contention that the questions were prejudicially erroneous, because of the assumption of guilt, was with- out merit. Ray v. State, 108 Tenn. 282, 67 Southwest- ern 553. (/>) One of the jurors an atheist. No juror can be challenged after he is sworn for any cause then existing, and therefore it is not ground for reversal in a criminal case that one of the jurors who tried the prisoner was an atheist, and that fact unknown to the prisoner until afterwards, it being improbable that any actual injury was sustained by the prisoner, as one of the witnesses brought forward to prove the defect of his religious opinions, said he would have confidence in his integrity. McClure v. State, 1 Yergason (Tenn.) 206. {q) Directed verdict cures error in selecting the jury. An error committed in calling a jury becomes harmless when the verdict rendered is one directed by the court. State V. Trimbell, 12 Wash. 440, 41 Pacific 183. (r) Allowing defendant to exercise unauthorized peremptory challenges. Error in allowing defendant a fifth peremptory chal- lenge is harmless, if plaintiff had an impartial jury. State V. Dalton, 69 Miss. 611, 10 Southern 578. Z7 § 14 Errors in Criminal Proceedings, ^{s) Prejudice not presumed from erroneously excusing a juror. On an appeal from a conviction for crime, the court can not presume prejudice from a ruling excusing a juror. State V. Fray, 126 Iowa 249, 99 Northwestern 1065; contra, Montague v. Commonwealth, 10 Grat. (Va.) 767. {t) Failure of jury commissioners to learn qualifications of persons selected for jury duty. The fact that the jury commissioners failed to comply with the law in ascertaining the quahfications of one or more persons selected for jury duty, does not operate as an irreparable injury to defendant in a criminal prosecu- tion, who has the privilege of examining for himself all of the jurors called in to try him. State v. Aspara, 113 La. 940, 37 Southern 883. (m) Statute directing drawing of special venire merely directory. The statute describing the manner of drawing a special venire, being directory, merely, any irregularity of the court in the drawing of a special venire was not preju- dicial where the jtiry was an impartial one. Buchanan V. State, 84 Miss. 332, 36 Southern 388; Commonwealth V. Zillafrow, 207 Pa. 274, 56 Atl. 539; Vogel v. State, 138 Wis. 315, 119 Northwestern 190. {v) Jury commissioner not a freeholder of the county. The fact that one of the jury commissioners which selected the jury that indicted defendant was not a free- holder of the county was not ground for reversing a con- viction, where defendant did not show that any injury resulted to him therefrom. Zargna v. State (Tex. Cr. App.), 68 Southwestern 997. 38 The Trial. §14 (zv) In murder case the names of the jurors in improper box. In a prosecution for murder, the fact that the names of the jurors for the regular term were not placed in the box from which the names of jurors on the special term were drawn was not prejudicial to defendant, conceding that the names of such jurors who had served in a for- mer trial against defendant and in trials against his co- defendants should have been placed in the box, where there was no suggestion that the jury list was not drawn fairly, or that defendant was deprived of any rights. Kipper v. State, 45 Tex. Crim. Rep. 377, 77 Southwest- ern 611. (x) Examining jurors on voir dire before defendant an- nounced readiness for trial. Where the defendant was indicted for murder, and, over his objections, counsel were required to proceed with voir dire examination of the persons summoned as jurors, prior to the time at which he was required to an- nounce whether or not he was ready for trial, the judg- ment will not be reversed on that ground, in the absence of any showing that he was prejudiced thereby. State v. Tettaton, 159 Mo. 354, 60 Southwestern 743. (y) Failure on voir dire to ask statutory question. Where the state was permitted to examine veniremen on their voir dire, with a view to permit challenges, without asking the question required by Code Criminal Procedure, art. 636, sec. 13, "Have you from hearsay or otherwise formed such a conclusion as to the guilt or innocence of the accused, which still influences you in your action in finding a verdict ?" But the question was 39 § 14 Errors in Criminal Proceedings. asked them by the defense, and no veniremen was chal- lenged for cause without such question being asked, there was no prejudicial error. McMurray v. State (Tex. Cr. App.), 56 Southwestern 76. (.c) Juror neither a freeholder nor a householder. The fact that a juror is not a freeholder in the state nor householder in the county does not vitiate the ver- dict. Reum V. State, 49 Tex. Cr. Rep. 125. {aa) Asking prospective juror whether he will be in- fluenced by any law other than as given by the court. Though the question asked by the district attorney in the impaneling of the jury, of each of the members thereof, whether, if taken on the jury, he will be influ- enced by an appeal to any higher law than the law of the land as it will be charged by the court, is improper, it will not be considered prejudicial. Fuller v. State, 50 Tex. Cr. Rep. 14, 95 Southwestern 541. (bb) More or less than tzvelve unchallenged jurors in the box at one time. Where, while impaneling a jury on a murder trial, there were at one time but eleven, and at another time thirteen unchallenged jurors in the box, and in each case the matter was corrected, as soon as the attention of the court was called to the error, and the accused was not required to challenge any juror or exercise any right while there were less or more than twelve unchallenged men in the box, he suffered no prejudice. Hughes v. State, 109 Wis. 397, 85 Northwestern 333. 40 The Trial. §14 (cc) Accepting juror having scruples against convicting of murder depending on circumstantial evidence. The acceptance of a juror whose scruples against cap- ital punishment extend only to cases depending on cir- cumstantial evidence is not error, where the conviction was on direct evidence. Nairn v. State (Tex. Cr. App.), 45 Southwestern 703. (dd) Inquiry by court as to whether jurors were willing to convict on circumstantial evidence. In a prosecution for murder, an inquiry by the court as to whether jurors would be willing to convict on cir- cumstantial evidence alone, is not ground for reversal, where the direct evidence was overwhelming. State v. David, 131 Mo. 380, 33 Southwestern 28. {ee) Failure to serve defendant with a list of jurors. Mills's Annotated Statutes, sec. 1460, provides that every person charged with murder, or other felonious crime, shall be furnished previous to his arraignment with a copy of the indictment and a list of the jurors and witnesses. Held, that a failure to serve deftendants with a list of the jurors, as required, was not ground for reversal, unless prejudice was shown. Imboden v. Peo- ple (Colo. Sup.), 90 Pacific 608. (ff) Court ordering talesmen for jurors. Where there was nothing to show that any prejudice existed against defendant in the minds of talesmen im- properly summoned, and it also appeared that he re- ceived the minimum punishment for an offense clearly proven, a conviction will not be reversed because of the court's error in ordering talesmen on an insufficient 41 § 14 Errors in Criminal Proceedings. showing. Rasor v. State (Tex. Cr. App.), 121 South- western 512. Causing twelve bystanders to be drawn to complete panel. Johnson v. State (Ark. Supreme), 133 Southwestern 526. Summoning talesmen, one by one, to complete jury. Rowan v. State (Ark. Supreme), 129 Southwestern 80. {gg) Refusing permission to take down examination other than that of jurors objected to. The refusal to permit the taking down of the examina- tion of jurors, except as to jurors objected to, was not prejudicial error under Snyder's Statutes 1909, sec. 5859, making it the reporter's duty to take down in short- hand, and correctly transcribe, when required, all the proceedings upon the trial, etc. Thacker v. State (Okla. Cr. App.), 106 Pacific 986. (/i/t) Jury drawn under an invalid law. A conviction for capital crime will not be reversed be- cause the jury was drawn under an invalid jury act of 1907 (local acts 1907, p. 238), where the record shows a compliance with the preexisting law, both as to the drawing of the jury, the ordering of the venire and the return of the sheriflf. Rogers v. State (Ala. Sup.), 52 Southern 33. (n) Withdrawing jurors from panel because of relation- ship. It is not reversible error to erroneously withdraw a juror from the panel, because of relationship, and sub- stitute another. Harnage v. State, 7 Ga. App. 573, 67 Southeastern 694. 42 The Trial. §14 (//) A particular juror not permitted to sit in the case. In a criminal action the defendant can not object that a particular juror was not allowed to sit in his case on a challenge for cause, his right being only that he shall be tried by an impartial jury, as provided by the consti- tution, art. 3, sec. 16. State v. Byrd, 41 Mont. 585, 111 Pacific 407. {kk) Improper remarks within hearing of the jury. Because of remarks made in the hearing of the jury, either before or after they are called as jurors, the judg- ment will not be reversed, unless the record clearly shows the language used, and that it was prejudicial to defendant. Brown v. State (Neb. Sup.), 129 North- western 545. {11) Court allowing examination of five prospective jurors before the entire number of the special venire had been served and were in court. The court directed a special venire of thirty-six jurors, and the examination of the regular panel was taken up. When the regular panel was exhausted the names of six- teen of the special venire were put in the box, and five taken out and called into the jury box. A copy of the full list of the thirty-six special venire was given to , counsel for accused, and also a copy of the names of the sixteen who had been served and were in court. Ac- cused did not exhaust all his peremptory challenges. Held, that the action of the court in proceeding with the examination of the five jurors before the entire number of the special venire had been served and were in court, and their names in the box, was not prejudicial. People V. Gray, 251 111. 431, 96 Northeastern 268. 43 § 14 Errors in Criminal Proceedings. (mm) Juror who was a member of the grand jury which returned the indictment. That a juror was also a member of the grand jury which returned the indictment could not have injured accused, where it appeared that such juror was not pres- ent when the bill was examined and returned. Bryan v. State (Tex. Cr. App.), 139 Southwestern 981. (m») Jurors informing their families by telephone that they were serving on the jury. That jurors informed their families by telephone that they were serving on the jury was not ground for a new trial, where the state showed that accused was not in- jured thereby. Bryan v. State (Tex. Cr. App.), 139 Southwestern 981. (oo) Ruling restricting the number of defendant's per- emptory challenges. Preliminary ruling in a criminal prosecution restrict- ing the number of defendant's peremptory challenges held harmless, where complainant makes no complaint that any juror was objectionable. Pearce v. United States, 192 Federal 561, 113 C. C. A. 33. (pp) Ruling requiring the accused to exercise his peremp- tory challenges while only eight jurors remained in the box. The ruling of the court in requiring accused to exer- cise his peremptory challenges while only eight jurors remained in the jury box, four having been excusedf held not reversible, where no prejudice appeared. Peo- ple V. Harrison (Cal. App.), 123 Pacific 200. 44 The Trial. §15 (qq) Permitting accepted, but unsworn jurors, to separate and use the telephone. Error in permitting accepted, but unsworn, jurors to separate and use the telephone, was not reversible where they were not objected to and no impropriety was shown. Myers v. State (Tex. Cr. App.), 144 Southwest- ern 1134. (rr) Court allowing county attorney to challenge three jurors at one time. Where a defendant in a criminal action is given op- portunity to examine and challenge for cause every juror called into the box, the allowance of a challenge by the county attorney of three jurors at one time is not preju- dicially erroneous. State v. Swartz, 87 Kans. 852, 126 Pacific 1091. {ss) Statement by juror on voir dire that he thought de- fendant to be guilty. Statement of a juror, on his voir dire, that he thought defendant guilty was harmless, where but one other juror was present, and he said that this would have no effect on him, and defendant's peremptory challenges were not exhausted. People v. McGregor (Mich. Supp.), 144 Northwestern 869. Sec. 15. Errors at the trial. (a) Absence of accused during the trial. Where the defendant was at times sick, causing occa- sional absence from the courtroom, but neither he nor his counsel moved to suspend the trial therefor, and it 45 § 16 Errors in Criminal Proceedings. did not appear that any of defendant's substantial rights were prejudiced by such occasional sickness and absence, the judgment will not be disturbed. Hite v. Common- wealth, 14 Ky. L. R. 308, 20 Southwestern 217. (b) In a p'^oseciition for perjury where defendant, accused conjointly with others, zvas tried on a separate in- formation. In a prosecution for perjury, where defendant had been accused with others in a joint complaint before a committing magistrate, but was tried on a separate in- formation; held, if there is no valid claim of prejudice on account thereof, it will not warrant a reversal of the conviction, even if the parties might have been jointly charged and tried for the crime. State v. Pratt (S. D. Supp.), 112 Northwestern 152. (c) Misdemeanor tried as if it were a felony. Prima facie, one charged with a misdemeanor suffers no prejudice from having his case tried as if it were a felony, provided the court sentences him as for a mis- demeanor. Cabinass v. State (Ga. App.), 68 Southeast- ern 849. Sec. 16. The opening statement. (a) Compelling counsel for accused to make an opening statement. Error in compelling counsel for accused to make an opening statement is without prejudice unless it affirma- tively appears that accused suffered some disadvantage thereby. Pumphrey v. State, 84 Neb. 636, 122 North- western 19. ' 46 The Trial. §17 Sec. 17. The witnesses. (a) Rejection of witness where facts otherwise proved. It is no ground for reversal that a witness is improp- erly not permitted to testify as to a certain fact, where other testimony on that fact is received, and it appears that had the witness testified his statement could not have changed the result. Zimm v. People, 111 111. 49. (fe) Prosecution recalling witness for further examination. The recall of witnesses by the commonwealth to prove facts concerning which the commonwealth's attorney has omitted to inquire upon their original examination, being within the discretion of the court, will not constitute ground for reversal, unless defendant can show that he was materially prejudiced thereby. Rhodes v. Common- wealth, 10 Ky. L. R. (abst.) 722. (c) Introducing witness after evidence closed on both sides. The action of the court in permitting the state to in- troduce a witness and prove by her a statement of ac- cused, after the close of the evidence on both sides, will not be disturbed on appeal, in the absence of a manifest abuse of discretion. Cargill v. Commonwealth, 93 Ky. 578, 14 Ky. L. R. 517, 20 Southwestern 782; Carlton v. Commonwealth, 13 Ky. L. R. 946, 18 Southwestern 535. {d) Failure of the state to call witness for defense. Where defendant placed on the stand a witness whose name was indorsed on the information, the failure of the state to call such witness is harmless error. People v. Resh, 107 Mich. 251, 65 Northwestern 99. 47 § 17 Errors in Criminal Proceedings. (e) Court requiring witnesses to leave the vicinity of ac- cused during the tried. There is no presumption that the district judge, with- out justification, required witnesses, though relations of the prisoner, to leave the immediate vicinity of the ac- cused during the progress of the trial, neither does the mere fact that this was done in an unusual manner jus- tify the assumption that thereby prejudice resulted. Hoover v. State, 48 Neb. 184, 66 Northwestern 1117. (/) Prosecution may withhold summoned zvitness from testifying. If the state summon a witness and refuse to introduce him on the trial, the court can not compel his introduc- tion, as the law ofificer of the state is presumed to know -. his duty, and can make out his case by any testimony he sees fit to introduce ; and if the defendant then introduce the witness he is certainly not prejudiced, and can not assign the action of the state in refusing to introduce the witness as error. Fason v. State (Tenn.), 6 Baxter 431. (g) Witness identifying papers and records not intro- duced in evidence. It was not prejudicial error in a criminal case to per- mit a witness to identify, with others, certain papers and records which were not thereafter introduced in evidence. Richards v. United States, 175 Federal 911, 99 C. C. A. 401. (h) Showing witness for defense to be of illegitimate birth. Permitting it to be shown in the course of a cross- examination as to the relation of the witness to the ac- cused, in whose favor she testifies, that she is of illegit- 48 The Trial. §17 imate birth, is not reversible error. State v. Prater, 52 W. Va. 132, 43 Southeastern 230. (i) Ruling that witness was incompetent as an expert. In a prosecution for murder, in which a witness of- fered by defendant as an expert was allowed to testify- that he had treated defendant for a form of epilepsy which would develop into insanity, that defendant was not right in his mind, and that he considered him of unsound mind at the time of the homicide, a ruling that the witness was incompetent as an expert was harmless to the defendant. Kroell v. State, 139 Ala. 1, 36 Southern 1025. (/) Objection to the competency of a witness eight years old. Where, in a criminal prosecution, a bill of exceptions to the competency of a witness, only eight years of age, failed to show that she had testified to any fact preju- dicial to appellant, her competency as a witness would not be reviewed on appeal. Reys v. State, 45 Tex. Cr. Rep. 463, 76 Southwestern 457; rehearing denied, 45 Tex. Cr. Rep. 463, 77 Southwestern 213. {k) Allowing expert to testify before cured by qualifying and repeating his testimony. Error in allowing an expert to testify before qualify- ing as such is cured where, after objection is made, he qualifies and repeats his testimony. State v. Foster, 136 Mo. 653, 38 Southwestern 721. (/) Allowing a nonexpert zvitness to state that defendant was rational. Error in allowing a nonexpert witness to state that 49 Errors — 4. § 17 Errors in Criminal Proceedings. defendant was rational is harmless,' where it appears from the entire evidence that the witness was only giv- ing his impression derived from the acts and declarations of defendant. People v. Young, 151 N. Y. 210, 45 North- eastern 460. (w) Hypothetical questions based on testimony answered by expert witness on insanity. Error can not be predicated on the giving of an an- swer by an insanity expert, to a hypothetical question based on evidence only, where afterwards he answered hypothetical questions of both the state and defendant submitting a full case. Burt v. State, 38 Tex. Cr. Rep. 397, 40 Southwestern 1000, 43 Southwestern 344, 39 L. R. A. 305, 330. (m) Unsworn witness allowed to give testimony. The fact that a witness for the state testified without being sworn, is not ground for reversal where it does not appear from the record that such witness testified to a material fact, and accused permitted him to testify know- ing that he had not been sworn. Ogden v. State (Tex. Cr. App.), 58 Southwestern 1018. (o) Permitting prosecutrix in seduction case to hold her baby while testifying. Allowing the prosecutrix in a seduction case to have her baby with her while testifying is not reversible error. State V. Foss, 206 Mo. 696, 105 Southwestern 618. (/)) Indorsement of witness's name upon the information after the case was called for trial. The fact that the name of a witness was indorsed on the information after the case was called for trial, was 50 The Trial. §17 not reversible error in the absence of any showing of prejudice. State v. Carpenter, 56 Wash. 670, 106 Pac. 206. (q) Permitting the county attorney to indorse the names of additional witnesses upon the information after its filing and before trial. Where the trial court, in its discretion, permits the county attorney to indorse the names of additional wit- nesses on the information, after its filing and before trial, and accused does not request postponement, no prejudice will be presumed because of such indorsement. Johns V. State (Neb. Sup.), 129 Northwestern 247. (r) Correcting the spelling of the name of a witness in the transcript. In a prosecution for robbery, an order permitting the examining magistrate to correct the transcript of his pro- ceedings by changing the spelling of the name of the complaining witness from Adolph Henning to Adolf Hennig, if error, was not prejudicial to accused, who had been famihar with complainant's identity from the begin- ning of the prosecution. Bunge v. State (Neb. Sup.), 127 Northwestern 899. {s) Right of one indicted for murder to have list of wit- nesses before the trial. The righjt of the accused indicted for a capital ofifense alleged to have been committed in the Indian Territory prior to statehood, to have delivered to him at least two days before the trial a list of the witnesses to be pro- duced, as provided by sec. 1033 (U. S. Comp. St. 1901, p. 722), is not violated to the extent of constituting re- versible error, where the testimony of the witness ob- jected to was. cumulative, and ofifered for the sole pur- 51 § 17 Errors in Criminal Proceedings. pose of fixing the time and place of decedent's death, and where the defense was justifiable homicide in self- defense, and the proof of the corpus delicti was sufficient without such testimony. Havill v. United States (Okla. Cr. App.), 115 Pacific 119. (t) Producing person jointly indicted with accused for identification. The production of a person jointly indicted with ac- cused for identification was not prejudicial, where the court instructed that the production of such person for identification was not to be considered by the jury as evidence of anything. People v. Mendoza (Cal. App.), 118 Pacific 964. (m) Limiting the number of witnesses to prove that de- ceased was a dangerous man. Where accused provoked the difficulty with deceased by insulting language, the court's action in limiting the number of witnesses as to deceased being a dangerous man, likely to carry his threats into execution, was harm- less, accused not having, under the circumstances, the perfect right of self-defense. Carver v. State (Tex. Cr. App.), 148 Southwestern 746. (v) Refusal to place witnesses under the rule where each testified to different facts. Refusal to place witnesses under the rule was harm- less error, where the witnesses testified only to indepen- dent facts, and they in no way supported each other. Clary v. State (Tex. Cr. App.), 150 Southwestern 919. Refusal to exclude sheriflf. Hahn v. State (Tex. Cr. App.), 165 Southwestern 218; Brewster v. State (Tex. Cr. App.), id. 52 The Trial— Evidence. § 18 The Evidence. Sec. 18. Confessions. (a) Where procured by duress jury should be instructed to disregard confessions. Where confessions introduced in evidence are after- wards shown to have been procured by duress, the only remedy is an instruction to the jury to disregard them. State V. Middleton, 69 S. C. 72, 48 Southeastern 35. (6) After received preceding alleged errors in proceedings not inquired into. Where confessions, after preliminary examination, are received in evidence, there is no room for any question touching the propriety of having conducted the prelimi- nary examination in the presence of the jury. Griner v. State, 121 Ga. 614, 49 Southeastern 700. (c) Admitting an involuntary confession. Error in admitting an involuntary confession of the killing was not prejudicial, a prior voluntary confession thereof having been shown, the defendant, as a witness, having confessed it. Holt v. State (Ark. Sup.), 121 Southwestern 1072. (d) Confession cured error in question to witness. Error in a question to a witness, and a statement of the court, in the presence of the jury, implying that a confession had been made, is cured as soon as the fact is proved by the testimony of a witness of the accused. State V. Williams (Nev. Sup.), 102 Pacific 974. S3 § 19 Errors in Criminal Proceedings. (e) Confession introduced before sufficient proof of cor- pus delicti. A trial court should not permit the introduction of a -defendant's confession until sufficient proof of the corpus delicti is first given, but if the confession be admitted without such proof, and additional evidence upon that subject is afterwards introduced, independent of the con- fession, which would have justified the admission there- of, the error is cured. Anthony v. State, 44 Fla. 1, 32 Southern 818; State v. Marulla, 43 Wash. 273, 86 Pacific 586. Not objectionable to alleged coconspirator. Hyde V. United States, 35 D. C. 451, writ of certiorari granted, 218 U. S. 681. Sec. 19. The corpus delicti. (a) Failure to establish before incriminating evidence is received. In a prosecution for arson a judgment of guilty will not be reversed because of the failure to establish the corpus delicti before evidence to incriminate the defend- ant was received, where the burning of the property was not disputed, and the same evidence which established criminal agency also bore upon the question of the guilt of the accused. Kohn v. State, 14 O. C. C. n. s. 31, 23 O. C. D. 417. (b) Admission of a conversation with defendant before proof of the corpus delicti. Error, if any, on a trial for murder, in the admission of a conversation with defendant implicating defendant before proof of the corpus delicti, was cured by the sub- sequent introduction of abundant independent evidence tending to prove death by criminal means and connect- 54 The Trial— Evidence. §20 ing defendant therewith. State v. Guthrie, 145 N. C. 492, 59 Southeastern 652. (c) Receiving evidence before establishing the corpus delicti. While the corpus delicti should ordinarily first be shown, a ruling permitting evidence before the corpus delicti is established is not ground for reversal, unless it clearly appears that defendant was prejudiced thereby. People V. Bianchino (Cal. App.), 91 Pacific 112. Sec. 20. Presumptions. (a) Presumption that jury committed no errors. It will be presumed that the jury duly considered all matters appearing in evidence having an alleged tendency to affect the credibility of witnesses. Painter v. People, 147 111. 444. {b) Presumption that officer in charge of jury was duly sworn. Where the record fails to show that the officer in charge of the jury was duly sworn, the omission will be cured by the presumption that such was the case, which will relieve it from being reversible error. It appears of record in this case that D. W. Rivers, deputy sheriff, had the jury placed in his charge, and was instructed to attend them. The court refused to reverse. Clark v. State, 55 Tennessee — ; (8 Baxter) 591; Leoness v. State, 97 Tenn. 560, 57 Southwestern 552. (c) Error presumed to be prejudicial. While it is presumed that an error made against de- fendant, when on trial for crime, is prejudicial, such pre- 55 § 21 Errors in Criminal Proceedings. sumption may be overcome by facts and circumstances in evidence. State v. Coleman, 186 Mo. 151, 84 South- western 978, 69 L. R. A. 381; Miller v. State (Ind. Sup.), 91 Northeastern 930; Wilson v. Barkalow, 11 Ohio St. 470. (d) Prejudice presumed from error does not prevail in Montana. The rule that prejudice will be presumed to have re- sulted to accused from the error at the trial is not in effect in Montana. State v. Barrett, 43 Mont. 502, 117 Pacific 895. Nor does it exist in Oklahoma. Mitchell V. State, 7 Okla. Cr. App. 563, 124 Pacific 1112. Sec. 21. Written evidence. (a) Erroneous introduction of hotel register. Where, in a prosecution for forgery, a hotel register containing defendant's name was introduced, for the pur- pose of serving as a standard of comparison of hand- writing, without objection that it was incompetent, and an expert testified, without objection, to the comparison, accused was not prejudiced by the erroneous introduc- tion of the register, there being no possible doubt of his guilt, established by other competent evidence. People V. Tollefson, 145 Mich. 444, 108 Northwestern 751, 13 D. L. N. 481. (b) Admission of stenographer's notes of testimony of deceased witness. Where, in a prosecution for embezzlement, there was abundant competent proof of defendant's receipt of the money alleged to have been embezzled, error, if any, in 56 The Trial— Evidence. §21 the admission of the stenographer's notes of the testi- mony of a deceased witness at the former trial to prove such fact was not prejudicial to defendant. People v. Peck, 147 Mich. 84, 110 Northwestern 495, 13 D. L. N. 1004. (c) Admission of letters by one secret society to another. Defendant having testified that he did the kiUing with which he was charged in self-defense, that he had re- ceived a letter from friends warning him of the danger of arrest, and that upon such suggestion he had changed his residence, the admission of letters written by one secret society to another to warn defendant that the offi- cers of the law were upon his track and to advise him to change his residence, was error without prejudice. People V. Lee Dick Lung, 129 Cal. 491, 62 Pacific 71. {d) Admission of uncertified copy of the laws of a bene- ficial order. Under Revised Statutes 1899, sec. 2634, providing that if, on the trial of a criminal cause, the constitution or powers of any corporation shall become material, the same may be proven by general reputation, oral evidence in a criminal cause of the relation existing between a grand lodge of a beneficial association and the subordi- nate lodge from which defendant was alleged to have embezzled money, rendered harmless the admission of a book of laws of the order which coincided with the oral testimony, but which was not a certified copy of the original draft of the laws, and which had not been com- pared with the original. State v. Knowles, 185 Mo. 141, 83 Southwestern 1083. 57 § 21 Errors in Criminal Proceedings. (e) In a prosecution for forgery admission in evidence of the certificate of protest. In a prosecution for forgery and uttering a check, the admission in evidence of the certificate of protest of the check, while erroneous, was not prejudicial where the fact of nonpayment of the check was admitted. People V. Whiteman, 114 Cal. 338, 46 Pacific 99. (/) In a prosecution for fraud, allowing witnesses to tes- tify from records. Where the evidence showed that jewelry alleged to have been stolen was shipped from New York by express to Jacksonville, and that it reached Jacksonville, and was there found in defendant's possession, any error in allowing witnesses to testify from records in tracing the stages by which the jewelry reached Jacksonville is harmless. Hinson v. State (Fla. Sup.), 56 Southern 674. {g) Entry of date of birth in family Bible. Though the entry in the family Bible of the date of the prosecutrix's birth, made by or at the instance of her parents, is not admissible where the parents have testi- fied from personal knowledge as to the date of such birth, yet, where the record shows no substantial con- flict in the evidence on such issue, the admission is not reversible error. Swartz v. State (Okla. Cr. App.), 120 Pacific 1029. (/i) Admitting court and penitentiary records before identi- fying accused. Where, in a prosecution for abduction, accused admit- ted that he had been theretofore convicted of an offense, without stating its nature, and the court and penitentiary records showed that one by the same name had previ- 58 The Trial— Evidence. §21 ously been convicted of rape and had served sentence, and it was not denied at the trial that accused was the same person, the admission of the court and penitentiary- records, without first identifying accused as the person referred to therein, was not reversible error. State v. Baldwin, 214 Mo. 290, 113 Southwestern 1123. (i) Admitting minute book of national bank. In a trial for aiding a national bank cashier in misap- plying a stock certificate held by the bank, defended on the ground that the defendant did not know of the bank's interest in the certificate, and was innocent of any criminal purpose to aid and abet in abstracting it, any error in admitting the bank's minute book, on the prose- cution's part, to show that it disclosed no record of the directors' sanction to use the certificate, was harmless, where a witness, without any objection to the compe- tency of the book, had testified to the substantive fact, which was admissible, that there was no such record in the book, the authenticity of the book not being ques- tioned on writ of error, the effect of the testimony being wholly negative, and there being nothing to show that the directors had authorized the withdrawal by the cashier of the certificate, or had taken any action re- specting it which was not recorded. Cook v. United States, 159 Federal 919, 87 C. C. A. 99, writ of cer- tiorari denied, 209 U. S. 551. (;) Admitting baptismal register to prove age. Where the age of a person is proved by competent evidence, the erroneous admission of a baptismal register is not prejudicial. Renfroe v. State, 84 Ark. 16, 104 Southwestern 542. 59 § 21 Errors in Criminal Proceedings. (k) Admission of liquor dealer's bond. In a prosecution for opening a saloon on election day, where the prosecuting witness testified that he knew ac- cused, that accused was engaged in the saloon business, that his saloon was open and accused was in it on elec- tion day, the admission in evidence of a liquor dealer's bond issued to R. H. Smith, in the absence of proof that he and accused. Bob Smith, were the same person, was not prejudicial. Smith v. State (Tex. Cr. App.), 107 Southwestern 353. (/) Admission of imauthenticated articles of incorporation. Where, in a criminal prosecution, it is sufficient to prove a corporation de facto, and it is so proven, it is harmless error to admit as part of the evidence of cor- porated existence articles of its incorporation not authen- ticated as required by the statute. State v. Brown (Utah Supreme), 102 Pacific 641. (m) Admitting certified copy of judgment of former con- viction. On the trial of a person who, while undergoing a life sentence, committed an assault which, under Penal Code, sec. 246, is punishable by death, the admission in evi- dence to show the former conviction, in addition to the certified copy of the judgment roll, including in addition to the copy of the judgment, the information, a copy of the minutes of the pleading on demurrer, and a copy of the minutes of the trial, if unnecessary to prove former conviction, a certified copy of the judgment being in evi- dence did not prejudice defendant. People v. Oppen- ' heimer, 156 Cal. 733, 106 Pacific 74. 60 The Trial— Evidence. §21 (m) Admitting letter written by defendant's son to mayor. On a trial for selling intoxicating liquors on Sunday, a letter written by defendant's son to the mayor was in- troduced, which contained an admittedly correct state- ment of defendant's position in regard to selling liquor on Sunday. Held, that the introduction of the letter did not afifect any substantial right of defendant. People v. Dippold, 51 N. Y. Supplement 859. (o) On a trial for illegally selling liquor, permitting intro- duction of search warrant, return and affidavit. On a trial for the alleged sale of liquor, permitting the state to introduce a search warrant, the return thereof, the affidavit upon which issued, was not prejudicial, these merely tending to prove the finding of Hquor on the premises, a fact testified to without objection by the per- son who made the affidavit, the officer who made the return, and at least one other witness. State v. Guy (S. D. Sup.), 125 Northwestern 570. {p) Admitting copy of a copy of special tax stamp. Where accused's guilt of violating an injunctional or- der enjoining the maintenance of a liquor nuisance was established by the direct, positive and wholly uncontra- dicted testimony of three witnesses, who were in no way impeached or their testimony discredited, the admission in evidence of a copy of a special tax stamp, certified to by the city auditor, which was incompetent, was harm- less error. State v. Winbauer (N. D. Sup.), 128 North- western 679. [qy Allowing nurse to use a chart to refresh her memory and receiving same in evidence. Where a professional nurse who cared for decedent 61 § 21 Errors in Criminal Proceedings. during the last few days before his death used a chart kept by her during the time she was employed, to refresh her memory as to decedent's symptoms, the error, if any, in admitting the chart in evidence was not prejudicial, because merely cumulative of the testimony of the nurse. Hollywood V. State (Wyo. Sup.), 120 Pacific 471; re- hearing denied, 122 Pacific 588. (r) Admission of receipts in embezzlement prosecution. Where accused had admitted receiving the proceeds of a note and embezzling them, admission in evidence of the receipts purporting to show payments to him was harmless, being incompetent evidence of the payment. State V. Hall, 45 Mont. 498, 125 Pacific 639. (j) Demand upon accused by prosecution to produce cer- tain documentary evidence. While a demand made upon the accused, in a criminal case, in the presence of the jury, by the prosecution, for the production of documentary evidence said to be in the possession of the accused, is improper, such a demand will not call for the reversal of a judgment of conviction, where the contents of the documents were afterwards testified to by a witness for the prosecution, without ob- jection by the accused, and the contents of such docu- ments, as testified to, did not incriminate the accused, and had little or no bearing upon his guilt or innocence. Woodward v. United States, 38 App. D. C. 323. (t) Permitting state to introduce plat of place of crime. Error in permitting the state to introduce a plat of the place of the crime held not prejudicial. State v. Finley, 245 Mo. 465, 150 Southwestern 1051. 62 The Trial— Evidence. §22 (m) Admitting report of auditing committee in prosecu- tion for embezzlement. Where, in the prosecution of a labor union treasurer for embezzling money in his possession, accused was al- lowed full credit at the trial for the amount supposed to have been on hand when his accounts were audited, as shown by the report of the auditing committee, accused could not have been prejudiced by the admission of such report in evidence. State v. Martin, 230 Mo. 680, 132 Southwestern 595. {v) Permitting state to introduce record of conviction of accused. ^, Error in permitting the state to introduce the record of the conviction of the accused; held, not prejudicial where he admitted the conviction. Benson v. State (Ark. Sup.), 45 Southwestern 883. (w) In prosecution for rape evidence of Catholic priest of record of births of the children of parish. In a prosecution for statutory rape, where evidence of a CathoHc priest, that a record of the children of his parish showed the dates of their births, was admitted, an objection not raising any objection to the competency of such record to prove the date of birth was harmless. State V. Bailly (S. D. Sup.), 137 Northwestern 352; State V. Terrill (Mo. Sup.), 152 Southwestern 33. Sec. 22. Leading questions. (a) Leading question by prosecuting attorney in murder trial. Allowing a leading question to be put by the prosecut- 62, §23 Errors in Criminal Proceedings. ing attorney in a murder trial to a witness, who was not very intelligent, nor quick of apprehension, whose ex- amination was being conducted through an interpreter, is not ground for reversal of a conviction, where no abuse of discretion or prejudice to defendant is shown. State V. Staley, 14 Minn. 105 (Gil. 75). (6) Permitting leading questions to he asked. Error in permitting a witness to be asked leading questions is cured by subsequently striking out his testi- mony. State V. Duestrow, 137 Mo. 44, 38 Southwestern 554, 39 Southwestern 266. Where the question elicited nothing harmful to defendant. Commonwealth v. Rossi, 47 Pa. Super. Ct. 297. (c) Where answers showed witnesses unaffected thereby. Where the answers of the state's witnesses, on direct or reexamination, showed that they were not led, ac- cused could not complain of the questions as leading. State V. Buford (Iowa Sup.), 139 Northwestern 464. Sec. 23. Declarations. (a) Proof necessary to admit acts or declarations of co- conspirators. Much latitude is left to the trial court in determining the prima facie proof necessary to admit evidence of the acts or declarations of a party as a coconspirator with one who is being tried for an alleged crime; and if, on that question, there is no failure of proof at any material point, the admission of such evidence, otherwise compe- tent, will not be regarded as error. Donald v. State, 21 O. C. C. 124, 11 O. C. D. 483. 64 The Trial— Evidence, §23 (&) Premature admission of declaration of alleged co- conspirator. A conviction will not be reversed because of the ad- mission of the declarations of an alleged coconspirator, without the previous laying of a proper foundation of proof of the conspirary, if the facts subsequently proved make such prima facie showing of the establishment of the conspiracy. State v. Cain, 20 W. Va. 679; State v. Winner, 17 Kans. 298; Cohen v. United States, 157 Fed- eral 651, 85 C. C. A. 113; writ of certiorari denied, 207 U. S. 596. (c) Admission of wife's declarations in trial of husband. In the joint prosecution of husband and wife for lar- ceny and receiving stolen goods, the wife's declarations and admissions made long after the alleged crime were admitted upon the separate trial of the husband. The court instructed the jury that such evidence was only ad- missible as to the receiving, and should be disregarded as to the larceny; held, that defendant having been con- victed of the larceny only was not injured by the evi- dence, which was too vague and inconsequential to have injured defendant, and that its admission constituted no ground for reversal. Dean v. State, 130 Ind. 237, 29 Northeastern 911. {d) Admission of acts and declarations of alleged co- conspirators. Where, in a prosecution for murder, complaint was made of the admission in evidence of acts and declara- tions of an alleged coconspirator, not made in the pres- ence of the defendant; held that, as the jury returned a verdict of manslaughter, its finding must have been that 65 Errors — S. §23 Errors in Crimineil Proceedings. the killing was not the result of conspiracy, and there- fore any errors in instructions with reference to con- spiracy were errors without prejudice. State v. Rowe, 81 Iowa 138. (e) Admission of declaration by person jointly indicted with accused. Admission of declarations by person jointly indicted with accused, held not to have prejudiced accused, in view of the court's statement when admitting them, and his charge requiring the finding of a conspiracy to justify their consideration. Patrick v. State (Ark. Sup.), 149 Southwestern 84. (/) Exclusion of declaration of accused. In a criminal prosecution, where it was undisputed that accused purchased intoxicants in the town where the of- fense charged was committed, and took them to his home in another place, it was not prejudicial error to exclude proof of his declaration made before starting on the trip, that he intended to purchase such liquors. Johns V. State (Neb. Sup.), 129 Northwestern 247. (g) Admission of declarations made by persons to deputy sheriff. The admission, in a burglary case, of the testimony of a deputy sheriff as to declarations made to him by per- sons whom he met while following buggy tracks from the scene of the crime as to meeting a buggy, and de- scribing the condition of the buggy and horse, even if erroneous, is cufed by sustaining a motion to strike out such testimony. People v. Gregory, 130 Mich. 522, 90 Northwestern 414, 9 D. L. N. 142. 66 The Trial— Evidence. §24 Sec. 24. Dying declarations. (a) Declaration of deceased, "they have got me." Declarations of deceased to the effect "that they have got me," soon after the homicide were, in a prosecution therefor, harmless to defendant. Kipper v. State, 45 Tex. Cr. Rep. 377, 77 Southwestern 611. (&) Admitting part of dying declaration. In a prosecution for homicide, the admission of evi- dence introduced as a part of the dying declaration of decedent, to the effect that a knife was the only weapon on the person of decedent when he was shot was harm- less error, where such fact was not in dispute. State v. Mills, 79 S. C. 187, 60 Southeastern 664. (c) Excluding purported dying declaration. After the court had determined in the jury's absence that a writing was admissible as a dying declaration, evi- dence was introduced showing that decedent said she was about to die, and wished to make a statement, and that a written statement was made 'and signed by her, but the court then determined that the writing was in- competent and excluded it, no part of it having been in- troduced. Held, that there was no prejudicial error. People V. Williams, 240 111. 633, 88 Northeastern 1053. \d) Admission of alleged dying identifying declaration of deceased. Where the identity of accused was conclusively estab- lished by other evidence, he was not harmed by any error in the admission of alleged dying identifying decla- rations of deceased. People v. Morse, 196 N. Y. 306, 89 Northeastern 816. 67 § 25 Errors in Criminal Proceedings. Sec. 25. Testimony by accused. (a) Asking defendant whether this was the first time he was ever in trouble. In a prosecution for crime, the question whether this ; was the first time he was ever in trouble was harmless '• error, where defendant answered in the negative. Peo- ple V. Lambert, 144 Mich. 578, 108 Northwestern 345, 13 ' D. L. N. 299. (&) Requiring accused to measure the shoe he tried on. ■■■ Where the accused, without objection, tried on a shoe,! to determine whether certain tracks were his own, therei was no prejudicial error in requiring him to measure it,i: as anyone could have done so. People v. Mead, 50 Mich.,| 228, 15 Northwestern 95. (c) Statement that coaccused had a pistol at the time of the killing. Where, on a trial for arson, the evidence showed that defendants had conspired with K and G and others to commit the crime, and that during the attempted burn- ing an occupant of the building was killed, the error, if any, in admitting in evidence the statement of G made the day after the killing in regard to the pistol K had at the time of the killing was not prejudicial. State v. Bobbitt, 228 Mo. 252, 128 S. W. 963. (d) Asking defendant whether he had a United States li- cense to sell liquor. In a prosecution for the illegal sale of liquor, the act of the commonwealth's attorney in asking the defendant, on cross-examination, whether he did not have a United] States license to sell liquor, while objectionable, was not| 68 The Trial— Evidence. §25 prejudicial, where the court told defendant he was not bound to answer, and instructed the jury that they could not draw any inference against defendant from his refusal to answer the question. Harding v. Commonwealth, 105 Va. 858, 52 Southeastern 832; Bradley v. State, 3 Ala. App. 212, 58 Southern 95. To prove by accused his pre- vious arrests for violating the local option law. Benson iV. State (Tex. Cr. App.), 101 Southwestern 224. j(^) In a prosecution for perjury answer of defendant that he was not working because of illness. Where, in a prosecution for perjury, defendant, on cross-examination, answered a question as to his voca- tion, that he was not doing anything because he was sick with kidney and bowel troubles, was not calculated to afifect him adversely. Townley v. State (Tex. Cr. App.), 81 Southwestern 309. (/) Allowing state to corroborate in rebuttal statement of defendant made under oath. Where the defendant, in a criminal case, on cross- examination, admits having made certain statements un- der oath on a previous trial concerning the res gestae of the offense, apparently in conflict with his present testi- mony, it is not prejudicial error to permit the state to prove in rebuttal that defendant did, on the former trial, make the statements now admitted by him. Singleton v. State, 39 Fla. 520, 22 Southern 876. Admitting in re- buttal statement of accused in regard to the killing. Col- lett V. Commonwealth (Ky. Ct. App.), 121 Southwestern 426. (g) Evidence of material acts authorised by defendant. Although the court may err in admitting evidence of 69 § 25 Errors in Criminal Proceedings. acts of a third person material to the issues, without proof that such third person was acting under authority from the defendant, yet, if the defendant, as a witness, admits the authority of such persons to do the acts, the error is cured. Wallace v. State, 41 Fla. 547, 26 Southern 713. (h) In a prosecution for burglary, asking defendant whether he testified on the preliminary hearing. In a prosecution for burglary one of the defendants voluntarily elected to become a witness in his own be- half, and testified fully before the jury. On cross-exam- ination the court required him, over objection, to answer whether he had testified as a witness on the preliminary hearing before the justice of the peace. He answered that he had not. Held that, though such of the defend- ants as did testify before the justice could be asked, only as preliminary to proof of their declaration, while on the stand whether they had testified before the justice, no such injury could have resulted from defendant's answer that he had not so testified as demands a reversal. Hauser v. People, 210 111. 253, 71 Northeastern 416; Wells V. State (Miss. Sup.), 51 Southern 209. (/) Cross-examination on matters not mentioned in de- fendant's examination in chief. Though the defendant be cross-examined as to matters not referred to by him in his examination in chief, if such cross-examination relates to matter of no import- ance and which could not afifect the verdict, it afifords no ground for reversal of the judgment. State v. Brooks, 92 Mo. 542. 5 Southwestern 257, 330; App. Dismissed, Brooks V. State of Missouri, 124 U. S. 394. 70 The Trial— Evidence. §25 (;") Permitting state to question accused as to an indict- ment against him in a federal court. The action of the court in permitting the state in a criminal case to question accused in regard to an indict- ment against him in the federal court, was not shown to be prejudicial where it did not appear what the indict- ment charged; for, if it charged an offense imputing moral turpitude, it was admissible on the issue of his credibility, if he testified, and if it showed only a misde- meanor, it would not affect his credibility, nor affect his rights in case he did not testify. Reagin v. State (Tex. Cr. App.), 100 Southwestern 776. (k) State's attorney, referring to hole in accused's hat, "Isn't it a fact that you received that shot in an-' other hold-up?" A question by the state's attorney, in cross-examina- tion of accused, with reference to the hole in his hat, which he claimed to have been caused by a pistol shot fired by decedent, "Isn't it a fact that you received that shot ... in some other hold-up?" is not cause for reversal, where accused admitted upon his direct exam- ination that he had been in a reform school and peniten- tiary twice, and where the evidence was of such a char- acter that the jury could not have found differently than they did. McCann v. People, 226 111. 562, 80 Northeast- ern 1061. {I) Testimony of accused cured that erroneously intro- duced against him. Where accused testified as a witness in his own behalf to facts erroneously permitted to be proven against him on behalf of the prosecution, the error was cured, though 71 § 25 Errors in Criminal Proceedings. accused objected to be examined on the subject, since, by becoming a witness, he laid himself open for investi- gation as bearing on his credibihty. People v. Geyer, 132 App. Div. 790; judgment reversed, 196 N. Y. 364, 90 Northeastern 48; reversed on other points; cured error in assailing his character. State v. Barrett (N. C. Sup.), 65 Southeastern 894. (m) In a prosecution for rape, evidence of other acts. Where accused, on trial for rape on a female under fifteen years of age, brought out in the course of the examination evidence of other acts of intercourse with prosecutrix, error in permitting evidence of other acts of intercourse was removed. Brice v. State, 56 Tex. Cr. Rep. 82, 119 Southwestern 99. (m) Asking accused whether he had any idea who cut decedent. In a murder prosecution it was not prejudicial error to ask accused, on cross-examination, whether he had any idea who cut decedent, which he answered in the nega- tive. Graham v. State (Tex. Cr. App.), 123 Southwest- ern 691. (o) In a prosecution for larceny, asking accused whether, in bankruptcy proceedings, he declined to answer as tending to criminate him. In the prosecution of a stock broker for larceny by appropriating to his own use money received while in- solvent to purchase stock for a customer, accused testi- fied in his own behalf as to the nature of the transaction, and that he did not intend to defraud the customer of his money, and on cross-examination he was asked why, in bankruptcy proceedings after the transaction on which 72 The Trial— Evidence. §25 he received the money claimed to have been stolen, he availed himself of the privilege of refusing to answer questions involving such transactions, on the ground of self-incrimination, and replied that he did so on the ad- vice of his attorney. Held that, even if the answ^er was improper, it did not require a reversal of the judgment of conviction, otherwise proper. People v. Meadows, 121 N. Y. Supplement 17, 136 App. Div. 226, judgment af- firmed, 99 Northeastern 128. (p) In prosecution for homicide, defendant pleaded in- sanity, question as to how he knew enough to get a gun, etc. Where, in a prosecution for homicide, defendant pleaded mental incapacity, he was not prejudiced by a question as to why he had sufficient mental capacity to get the gun, if he did not know what he was doing, which he was compelled to answer that he did not know how he did it. State v. Paice ((S. D. Sup.), 123 North- western 708. (q) Cross-examination of accused. A judgment in a criminal case will not be reversed for errors in cross-examination of accused, unless the record shows that the court abused its discretion in permitting the cross-examination, and that accused might probably be prejudiced thereby. Brown v. State (Neb. Sup.), 129 Northwestern 545. (r) Eliciting from one of accused that weapons were found in accused's bureau. The eliciting on cross-examination of one of accused, that a revolver and blackjack had been found in ac- cused's bureau by officers, and his admission that they 73 § 25 Errors in Criminal Proceedings. were his, and that he kept them in his drawer, explain- ing that they had been given to him by friends, whose names he disclosed, was not reversible error, where there was no request that the jury be charged that possession of the weapons in accused's home was, of itself, no evi- dence of the commission of the crime with which ac- cused was charged, and where it does not appear that the jury could have been influenced by the fact of such possession, and the conviction is supported by abundant evidence. People v. Prince, 128 N. Y. Supplement 273, 143 App. Div. 524. (s) Asking accused if he would object to his wife testi- fying. Asking accused, on cross-examination, if his wife would testify, and if he would object to his wife being introduced as a witness for the state, while highly im- proper, was not reversible error. Carter v. State (Miss. Sup.), 54 Southern 734. (t) Asking accused as to the commission of other offenses. It was not prejudicial error for the prosecuting attor- ney to ask accused, on cross-examination, as to his com- mission of other ofifenses, where the answers were ex- cluded, and the attorney does not appear to have acted in bad faith or to have persisted in asking such ques- tions. Caliso V. Commonwealth, 145 Ky. 641, 140 South- western 1036. As to killing third person in another state. Hughes v. State (Tenn. Sup.), 148 Southwestern 543. (n) Placing burden on accused to produce proof he did not have a pistol. Where the proof rested on the evidence of a pistol 74 The Trial— Evidence. §26 flash coming from where defendant stopd at the time, it being dark, and he testified that he did not have his pistol, he having loaned it, it was not prejudicial error to require him to produce all the evidence he had on that question in chief. Bennett v. Commonwealth, 150 Ky. 604, 150 Southwestern 806. (v) Asking accused if he did not remember lying in wait in an alley for another person. Where one accused of murder testified that he did not remember of having attacked decedent or another per- son, it was not prejudicial error to permit the district attorney to ask him on cross-examination if he did not remember lying in wait in an alley for such other person. People v. Dalhantis, 163 Cal. 461, 125 Pacific 1066. (w) Admission of statement made by the accused to thtf chief of police. The accused was not prejudiced by the admission of a statement made by him to the chief of police, where he subsequently testified on his own behalf to substantially the same facts. Gankyo Mitsunage v. People, 54 Col. 102, 129 Pacific 241. Sec. 26. Evidence of conspiracy. (a) Proof of conspiracy admissible after declarations of coconspirators. That part of the proof of conspiracy which is not given until after the declarations of coconspirators is not re- versible error. Underhaurer v. State, 4 O. C. C. 378, 2 O. C. D. 606, affirmed w. o. 23 Bull. 176; Ditzler v. State, 4 O. C. C 551, 2 O. C. D. 702. 75 § 26 Errors in Criminal Proceedings. (6) Admission of threats made before formation of the conspiracy. Where there was evidence that a third person had en- tered into the conspiracy with accused to commit the crime charged, and a witness, on direct examination, tes- tified to threats made by the third person after the for- mation of the conspiracy, and, on cross-examination, stated that he did not remember the time the threats were made, and counsel for accused failed to move to strike out the testimony, on the ground that the threats were made prior to the formation of the conspiracy, the error, if any, in admitting the testimony of the witness was not prejudicial. State v. Babbitt, 228 Mo. 252, 128 Southwestern 953. (c) In a prosecution for conspiracy to suborn perjury, admitting evidence of acts in other cases. One accused of conspiracy to suborn perjury in pro- ceedings for the purchase of public lands, under the tim- ber and stone act, is not prejudiced by admitting evi- dence of an attempt to acquire by unlawful methods state coal lands, because it tends to show the commission of crimes other than those charged in the indictment, es- pecially where the trial judge carefully limited the appli- cation of the testimony so as to prevent any improper use. Williamson v. United States, 207 U. S. 425, 28 S. Ct. 163; State v. Steidley, 135 Iowa 512, 113 Northwest- ern 333. (d) Refusal to strike out testimony of one of conspirators. In a prosecution to defraud the United States, one of the defendants held not prejudiced by the court's im- proper refusal to strike out certain testimony of one of 76 The Trial— Evidence. §26 the conspirators, on its appearing that he had no knowl- edge concerning that which he testified. Drew v. United States, 192 Federal 854, 113 C. C. A. 178. {e) Admitting acts of alleged coconspirator before con- spiracy had been shown. Error in admitting acts of alleged coconspirator of accused, before the conspiracy had been shown, was not ground for reversal, where evidence was subsequently admitted making the question of conspiracy one for the jury. Harmon v. State (Ala. Sup.), 52 Southern 348. (/) Evidence that defendant's wife, a coconspirator, told witness she was going to have her husband killed. In a murder case the admission of evidence that dece- dent's wife, shown to have been a conspirator with ac- cused, had told witness at a date before the conspiracy was formed that she (the wife) was going to have her husband killed, and testimony of a witness that while she and another conspirator with accused were going to de- cedent's house the night that he was killed, such con- spirator stated to witness, some ten or fifteen minutes before the fatal shot was fired, and when the conspira- tors were not more than ten or twenty yards from the spot where decedent was killed, that he, the conspirator, was going to kill decedent, and that if he did not, ac- cused and another would kill such conspirator that night or early in the morning, though erroneous, was harm- less error, where the indictment charging accused with murder was legally returned, and he was tried by an im- partial jury, and the evidence established his guilt, inas- much as the improper evidence did not deprive accused of a substantial right and could not possibly have 77 § 27 Errors in Criminal Proceedings. changed the verdict. Wiltscher v. State (Miss. Sup.), 54 Southern 726. (g) Prima facie proof of conspiracy to admit act or declarations of one conspirator against another. Where proof sufficient to make a prima facie showing of conspiracy, so as to permit the acts or declarations of one conspirator to be proved against another w^as given, the mere absence of a formal declaration by the court that it was sufificient is not prejudicial. Schultz v. State, 133 Wis. 215, 113 Northwestern 428. Sec. 27. Incompetent or illegal evidence. (a) Improper evidence by state, where appellant testifies to same effect. Appellant can not complain of improper evidence in- troduced against him, where he testified similarly for himself. Carroll v. State, 45 Ark. 539. (fc) Improper evidence where facts otherwise proved. The admission of incompetent evidence is not prejudi- cial if the facts, toward which it was directed, were otherwise proved by competent evidence. "There was ample proof to the same effect." Vaughn v. State, 58 Ark. 353, 374; Doll v. People, 145 111. 253; McLaughlin V. People, 17 111. App. 306; Siebert v. People, 143 111. 571; Bloom v. State, 155 Ind. 292, 58 Northeastern 81; Sanderson v. State, 169 Ind. 301, 82 Northeastern 525; Brown v. Commonwealth, 90 Va. 671, 19 Southeastern 447. (c) Improper evidence not prejudicial. The admission of improper evidence is not prejudicial 78 The Trial— Evidence. §27 where the fact sought to be estabUshed is admitted in open court. Ford v. State, 11 O. C. C. n. s. 324, 20 O. C. D. 592, affirmed w. o. 80 O. S. 722; Moran v. State, 11 O. C. C. 464, 5 O. C. D. 234; Ochs v. People, 25 III. App. 379, 124 111. 399, affirmed, Byers v. Territory (Okla. Cr. App.), 103 Pacific 532, 1 Okla. Cr. 677. (d) Incompetent evidence that could not have influenced jury. If the incompetent evidence could not have influenced the jury it will not be considered prejudicial, as where, to prove guilty knowledge, other counterfeits in the purse of the prisoner's wife being shown, her declara- tions explaining the fact incidentally crept in. Hess v. State, 5 Ohio 5; Tilly v. State, 21 Fla. 242; Genz v. State, 59 N. J. L. 488, 37 Atl. 69; State v. Simon, 71 N. J. L. 142, 58 Atlantic 107; State v. Musgrave, 43 W. Va. 672, 28 Southeastern 813. (e) Improper question eliciting proper answer. A cause will not be reversed on the ground that an objection to an improper question has been overruled, if the question itself was not followed by an improper an- swer. State v. Groom, 10 Iowa 308; Weaver v. State, 142 Ala. 33, 39 Southern 341. (/) Improper evidence in a prosecution for rape. Where, in a prosecution for rape, defendant admitted that the snow at the place where the offense was alleged to have been committed was bloody, but claimed that the blood came from an injury to his hand, which he tes- tified bled freely and discolored the snow, which he gath- ered in his hand, and which he again threw down in a bloody condition, the admission of evidence of another 79 § 27 Errors in Criminal Proceedings. witness that he found the snow discolored by blood at the scene of the offense was not prejudicial. People v. Rich, 133 Mich. 14, 94 Northwestern 375, 10 D. L. N. 87. (g) Propounding improper questions in good faith. In a criminal prosecution, the propounding of improper questions to witnesses, in good faith, is not reversible error. People v. Tubbs, 147 Mich. 1, 110 Northwestern 132, 13 D. L. N. 959. (h) Improper evidence where judgment is clearly right. Where all the facts in the case are before the review- ing court, and show that the party in whose favor judg- ment was rendered is entitled to recover, the judgment will not be reversed because of the admission of illegal evidence. State v. Engle, 21 N. J. L. 347. (i) Unchallenged reception of improper testimony. An indictment charged two persons with acts of vio- lence upon a pregnant woman, with intent to cause her miscarriage. The sessions, on the application of the state, directed a severance and proceeded to try one of the defendants. The woman alleged to have been in- jured was called as a witness on behalf of the state. She was sworn, without objection, but it subsequently ap- pearing that she had married the other defendant, her competency to testify was challenged by the defendant on trial, and an exception was taken to the refusal of the court to exclude her. Held, that she was a competent witness, and there was no error in refusing to exclude her. In the course of her testimony she testified to acts of her husband, from which his guilty connection with the act charged, although he was not present, might be inferred, and the testimony was received without objec- 80 The Trial— Evidence. §28 tion. Held, that the defendant on trial did not suffer manifest wrong or injury by the unchallenged admission of that evidence. Munyon v. State, 62 N. J. L. 1, 42 Atlantic 577. (;") Inadmissible evidence cured by subsequent admissible. Evidence when admitted may be inadmissible, but there is no error if it is made admissible by other evi- dence subsequently introduced. Cluverius v. Common- wealth, 81 Va. 787. (k) To require reversal improper evidence must tend to strengthen the state's case. The admission of improper evidence in a criminal case which will require a reversal must tend to strengthen the state's case, and where, by no process of reasoning, the evidence can be so construed, its admission is harmless. Tinsley v. State (Tex. Cr. App.), 106 Southwestern 547. (/) On objection, correction of form of question cures. Where an objection to an improper question by the state's attorney is sustained, and the form of the ques- tion is then corrected, the asking of the original ques- tion is not reversible error. Florence v. State (Tex. Cr. App.), 134 Southwestern 689. Sec. 28. Irrelevant and irresponsive evidence. (a) Admission of irrelevant evidence that inflicted no harm. The admission of irrelevant evidence, over objection, will not work a reversal where it is evident that no in- jury resulted therefrom. Terry v. State, 118 Ala. 79, 23 Southern 776; Murphy v. State, 118 Ala. 137, 23 South- 81 Errors — 6. § 29 Errors in Criminal Proceedings. ern 719; Strong v. People, 24 Mich. 1; Payne v. Com- monwealth, 31 Grattan (Va.) 855; Brown v. Common- wealth, 90 Va. 671, 19 Southeastern 447. Where guilt otherwise well proven. Turner v. State, 89 Tenn. 549, 15 Southwestern 838. (b) When irresponsive answers do not constitute error. Answers not responsive to questions, but which are competent testimony, are not ground for error. Neifeld V. State, 3 O. C. C. n. s. 551, 13 O. C. D. 246. (c) Irrelevant evidence cured by withdrawal and jury in- structed to disregard it. Error in admitting irrelevant evidence is cured by its withdrawal and instruction to jury to disregard it. Dim- mick V. United States, 135 Federal 257, 70 C. C. A. 141 ; People V. Prather, 134 Cal. 436, 66 Pacific 589, 863; Rentfrow v. State, 123 Ga. 539, 51 Southeastern 596; State V. McGinnis, 12 Ida. 336, 85 Pacific 1089; State v. Moore, 52 La. Ann. 605, 26 Southern 1001 ; People v. Smith, 98 N. Y. Supplement 905, 113 App. Div. 150, 20 N. Y. Cr. Rep. 127; McGuire v. State, 2 O. C. D. 318, 3 O. C. C. R. 551; State v. Marsh, 70 Vt. 288, 40 Atlan- tic 836. Sec. 29. Immaterial evidence. (a) Immaterial evidence not prejudicial. If a witness called to prove an alibi details an imma- terial conversation with deceased, contradiction by proof of different language in which the accused admitted the crime is also immaterial, and hence, not error. Callihan V. State, 21 O. S. 306; Wallace v. State, 41 Fla. 547; State V. McCarthy, 17 Minn. 76 (Gil. 54). 82 The Trial— Evidence, §31 Sec. 30. Conclusions. (a) Conclusion cured by afterwards stating the facts on which it is based. Under sec. 4333 of the code, establishing the doctrine of error without injury in criminal cases, cures the error of allowing a witness to improperly state a conclusion, where he afterwards states the facts upon which the con- clusion is based. Evans v. State, 120 Ala. 269, 25 Southern 175; People v. Hatch, 163 Cal. 368, 125 Pacific 907. (b) When testimony is not objectionable as stating a mere conclusion. Testimony of a witness on her examination in chief, in a criminal prosecution against her father for incest, that the latter had "sexual intercourse" with her, is not in- competent as a mere conclusion, but is simply permitting the witness to testify to an act by giving it the ordinary name; and its admission in evidence is not prejudicial, especially when witness was, on cross-examination, re- quired to relate in full all the facts and circumstances of the transaction. Straub v. State, 5 O. C. C. n. s. 529, 17 O. C. D. 50. Sec. 31. Hearsay. ' (a) Hearsay as to marriage in a polygamy case. Where, in a prosecution for polygamy, the testimony of the defendant and of his alleged first wife showing the performance of an alleged cei-emony between them, fol- lowed by their living together as husband and wife, showed a valid marriage, and the admission of hearsay 83 § 31 Errors in Criminal Proceedings. evidence as to such marriage was harmless error. Peo- ple V. Goodrode, 132 Mich. 542, 94 Northwestern 14, 10 D. L. N. 19. (b) Admission of hearsay as to the disposition of de- ceased's body. The admission of hearsay evidence as to what was done with the body of the deceased, after it was found by the witness, is harmless. State v. Williams, 31 Nev. 360, 102 Pacific 974. (c) Hearsay received under supposition that witness was testifying, from personal knowledge. Where a party is permitted to testify to matters that are mere hearsay, under the supposition that he testifies from personal knowledge, and the fact so testified to is subsequently admitted by the opposite party, it is error without prejudice. State v. Babcock, 51 Vt. 570. (d) Admission of hearsay which was not prejudicial. Where a witness, having testified to the good reputa- tion of defendant as being a quiet, law-abiding citizen, was asked on cross-examination if he had not heard of a difficulty between defendant and another, wherein de- fendant drew a gun, to which he answered, that he had heard of it for the first time at the trial, error, if any, in his cross-examination, in that it was hearsay, was not reversible. Blue v. State (Tex. Cr. App.), 106 South- western 1157. (e) Hearsay volunteered by a witness, zvhich the jury were instructed to disregard. The result of a criminal prosecution can not be de- 84 The Trial— Evidence. §33 feated by reason of hearsay testimony volunteered by a witness, which the jury is instructed to disregard. State V. Gebbia, 121 La. 1083, 47 Southern 32; State v. Os- borne (Or. Sup.), 103 Pacific 62. Sec. 32. Improper question properly answered. (a) Favorable answer cures improper question. The admission of an improper question by the prose- cution is harmless where the answer is favorable to de- fendant. People V. McArron, 121 Mich. 1, 6 D. L. N. 327, 79 Northwestern 944; Seele v. State, 85 Neb. 109, 122 Northwestern 686; State v. Poyner (Wash. Sup.), 107 Pacific 181. Sec. 33. Admitting evidence relating to one count. (a) Erroneous evidence on count found for defendant. Where evidence was erroneously received in support of one count of the indictment, but the court afterwards instructed the jury to find for defendant on that count; held, that the error in the reception of the evidence was cured. State v. Craig, 78 Iowa 637. (b) Admitting or excluding evidence relating to but one count. Where defendants were convicted on a number of fcounts, and the judgment was warranted by any one of several of such counts, error, if any, in admitting or ex- cluding evidence relating to one count alone, is imma- terial, and not ground for reversal. Wesoky v. United States, 175 Federal 333, 99 C. C. A. 121. 85 § 34 Errors in Criminal Proceedings. Sec. 34. Refusal to strike. out. (a) Failure to strike out statement that witness told de- fendant his story was absurd. Where a police officer testified as to what defendant, on trial for crime, had stated to have been his connec- tion with the crime, it was not prejudicial error to refuse to strike out the officer's testimony that he had told de- fendant that his story was absurd. People v. Buckley, 143 Cal. 375, 77 Pacific 169. (&) Refusal to strike answer of witness that deceased stated, "I am shot to kill." Where the defendant in a. murder prosecution con- ceded having fired the shot that killed deceased, a refusal of a motion to strike out testimony that deceased stated subsequent to the shooting, "I am shot to kill," is not reversible error, since such statement went no further than defendant's concession. People v. Brown, 130 Cal. 591, 62 Pacific 1072. (c) Refusal to strike statement, otherwise proved, from the case. Though the evidence was not competent proof of the fact that a statement had been made, it was not error to refuse to strike the statement from the case, where it was proved by other competent evidence. People v. Andre, 156 Mich. 362, 122 Northwestern 98, 16 D. L. N. 415. {d) Refusal to strike answer that defendant was always trying to hug every woman that came in the house. Refusal to strike a nonresponsive answer that defend- ant was always sitting, "trying to hug every woman that 86 The Trial— Evidence. §36 came in the house," was not prejudicial on the question of his moral character. McQueary v. People (Col. Sup.), 110 Pacific 210. Sec. 35. Admission of conversations. (a) Where conversation incompetent, preliminary question as to whether there was. If a conversation would be wholly incompetent, does not make it reversible error to allow the preliminary question, "Was there a conversation?" to be put, if no inference of its contents was disclosed. Moran v. State, 11 O. C. C. 464, 5 O. C. D. 234. (fc) Conversations between accused and third persons. It is not error to admit as evidence a conversation be- tween the accused and a third person with reference to the alleged crime, in which the accused asked said third person how the people felt about such crimes. Morrow V. State, 15 O. C. C. n. s. 561, 24 O. C. D. 140. Between policeman and prisoner. People v. Long, 44 Mich. 296, 6 Northwestern 673. Sec. 36. Cross-examination. (a) Defendant eliciting incompetent evidence on cross-- examination of state's witness can not complain. ■ A defendant eHciting incompetent evidence on cross- examination of state's witness can not complain. Baker V. State, 58 Ark. 513. (b) Erroneous question on cross-examination unanswered. Questions directed to the defendant on cross-examina- tion as to matters within his own breast, that offered 87 § 36 Errors in Criminal Proceedings. opportunity for explanation of suspicious circumstances, that are not answered nor pressed by the state, do not constitute ground for reversal. Wilson v. State, 47 Fla. 118. (c) Unduly restricting the cross-examination. The court will not reverse on the ground that the right of cross-examination has been unduly restricted, unless there has been such an absence of discretion as may have materially affected the result reached. Birr V. People, 113 111. 645. (d) Erroneously cross-examining a physician as an expert. Error in cross-examining physician as an expert, when he had not testified as such, was harmless, where the cross-examination affected his credibility only as an ex- pert, and not as an ordinary witness. Shields v. State, 149 Ind. 395, 49 Northeastern 351. (e) Unreasonable cross-examination. The fact that the cross-examination of a witness is permitted to go beyond reasonable limits, for the pur- pose of testing his credibility or to show bias, is not ground for reversal, where such witness gave no testi- mony pertinent to any isstie in the case. State v. King, 88 Minn. 175, 92 Northwestern 965. (/) Improper refusal cured by subsequent cross-examina- tion. On a trial for manslaughter a witness testified that after the homicide the defendant made a voluntary state- ment, without threats or offer of reward or immunity. Defendant's counsel requested leave to inquire as to the- 88 The Trial— Evidence. §36 conditions under which the statement was made. The request was refused, and the witness testified that de- fendant was asked why he killed the deceased, and an- swered: "That he was on his row and throwing clods at me, and I told him to get off, and he would not get off, and he got mad and I shot him." On cross-exam- ination the witness testified that defendant was under arrest at the time the statement was made, but no fur- ther facts were developed. Held, that though it was error to refuse permission to cross-examine the witness, as the subsequent cross-examination showed that defend- ant was not prejudiced thereby, the judgment should not be reversed therefor. People v. Miller, 135 Cal. 69, 67 Pacific 12. (g) Drawing out improper testimony on cross-examina- tion. The calling out by the question of the state's attorney, on cross-examination of defendant, as to whether that was the only time he was in trouble, of the answer, "That was not all the trouble I have had," not indicating the nature or class of trouble, was not prejudicial. State V. Holburn (S. D. Sup.), 121 Northwestern 100. (/i) Repeating on redirect answer to question elicited on cross-examination. Where a witness made a statement in reply to a ques- tion asked on cross-examination by counsel of accused, the latter could not complain because the court permit- ted the witness to make a similar statement on redirect examination. State v. Vanilla, 40 Montana 326, 106, Pacific 364. 89 I § 37 Errors in Criminal Proceedings. (i) Cross-examination of warden as to his reasons for denying privileges to prisoner. In a prosecution for assault with a deadly weapon by one who was undergoing sentence of life imprisonment, it was admitted that defendant had been kept in solitary confinement in the incorrigible ward for more than eight years before committing the assault. Held, that im- proper cross-examination by the state of the warden of the penitentiary as to his reasons for depriving defendant of some of his privileges was harmless. People v. Op- penheimer, 156 Cal. 733, 106 Pacific 74. (/) Cross-examination, where no cross-interrogatories were attached to the commission authorising deposition. The admission in evidence of the cross-examination of a witness, no cross-interrogatories having been attached to the special commission under which the deposition was taken, though technically error; held, not reversible error. State v. Taylor, 134 Mo. 109, 35 S. W. 92. Sec. 37. Exceptions. (a) Improper testimony as to letters sent saved exception merely to the sending. In a trial for assault with intent to commit rape, de- fendant testified, in cross-examination, that he could not write or read writing; that he had no letters written during his imprisonment to his wife, but he knew a cer- tain aunt of complainant and denied that he had a letter written to her begging her and complainant to fix things all right, etc. In rebuttal, the jailer testified, without objection, that defendant had given him letters to mail to parties, and also under exception, that he had sent three or four of such letters. Held, that the only part 90 ' The Trial— Evidence. §38 of the jailer's testimony excepted to, being as to the sending of the letters, defendant was not prejudiced. State V. Buckman, 74 Vt. 300, 52 Atlantic 427. (ft) Overruling exceptions on the ground of impertinence. The overruling of the exceptions taken, on the ground of impertinence to so much of the bill filed by the United States under act July 2, 1890, chap. 647. sec. 4, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3201), restraining viola- tions of that act, as counting upon facts occurring prior to the enactment, can not be regarded as prejudicial error, where the court gave no weight to the testimony adduced under the averments complained of, except in so far as they tended to throw light upon the acts done after the passage of the statute, the results of which it was charged were being participated in and enjoyed by the alleged combination at the time of the filing of the bill. Standard Oil Co. of N. J. v. United States, 221 U. S. 1, 34 L. R. A. n. s. 334, Ann. Cas. 1912, D. 734, af- firming United States v. Standard Oil Co. of N. J., 173 Federal 177. (c) Exception to evidence cured by admission. An exception to the admission of evidence is not avail- able as a ground of reversal, where accused himself ad- mits the correctness of the statement attributed to him by the witness. State v. Winter, 83 S. C. 153, 65 South- eastern 209. Sec. 38. Impeaching evidence. (a) Immaterial impeaching testimony. If the impeaching testimony is wholly immaterial, it is not the subject of error. Callahan v. State, 21 O. S. 306. 91 §38 Errors in Criminal Proceedings. (6) In impeaching witness by testimony of former trial, reading restricted to parts denied. In attempting to impeach a witness by testimony given at a former trial, such portions of the testimony as were denied by the witness should only have been read in evi- dence to the jury, but the reading of the whole of the evidence was not so prejudicial to defendant as to con- stitute reversible error. State v. Taylor, 134 Mo. 109, 35 Southwestern 92. (c) Admitting impeaching testimony not contradicting any statement of accused. The error in admitting impeaching testimony, not in any manner contradicting any statement of accused, is not prejudicial. Anderson v. State, 56 Tex. Cr. Rep. 360, 120 Southwestern 462. (d) Permitting witness to be impeached by showing that he had been indicted for gambling. Error in permitting a witness to be impeached by showing that he had been indicted for gambling held not reversible, gambling not being a felony or involving moral turpitude. Miller v. State (Tex. Cr. App.), 150 Southwestern 635. {e) Permitting state to recall accused to lay foundation to impeach him. The error, if any, in permitting the state to recall ac- cused on rebuttal to lay a foundation to impeach him; held, not prejudicial to accused, in view of former testi- mony sufficient for impeachment. Hughes v. State (Tenn. Sup.), 148 Southwestern 543. 92 The Trial— Evidence. §39 (/) Refusal of court to limit impeaching testimony to that purpose. In a criminal prosecution the refusal of the trial court to limit evidence impeaching the testimony of a witness for the defense to the purpose of impeachment alone was not prejudicial error, where the state of the case was such that the testimony could not have been considered by the jury for any other purpose. Watson v. State (Tex. Cr. App.), 105 Southwestern 509. Sec. 39. Expert testimony. (a) When not error to refuse testimony of expert. An expert chemist who testifies that he has never been a practicing physician, and that his answer to the ques- tion, how long food had been in the stomach of the de- ceased before death ensued, would be of no value as compared with the evidence of a physician, does not pos- sess the pecuhar knowledge called for by the question asked, and the exclusion of such evidence is not error. Morrow v. State, 15 O. C. C. n. s. 561, 24 O. C. D. 140. (&) Question to expert as to the sanity of accused. In a murder trial under the 163d chapter of the laws of 1894, it appearing in behalf of the state, no objection thereto being interposed in behalf of the defendant be- low, several questions were put to experts, for the pur- pose of obtaining their opinion as to the sanity of the defendant, predicated, not upon assumed facts, but upon evidence the experts had heard in court in the course of the trial, which questions were answered. Held, that the questions and answers did not manifest that the plaintiff in error suffered wrong or injury from the evi- 93 § 39 Errors in Criminal Proceedings. dence adduced upon the trial. Malynak v. State, 61 N. J. L. 562, 40 Atlantic 572. (c) Testimony of expert witness cured omission of proof of samples of butter and oleomargarine. Where, on the trial of an indictment for selling oleo- margarine colored to look like yellow butter, a sample of white oleomargarine and a sample of creamery butter are admitted for the purpose of comparison, but without any evidence as to the genuineness of the samples, the judgment against the defendant will not be reversed for that reason, if it appears that an expert witness subse- quently testified that the samples were what they were alleged to be. Commonwealth v. Mellet, 27 Pa. Sup. Ct. 41. {d) Excluding from hypothetical question to expert as- sumption that there was no motive for the shooting. Where, on a prosecution for murder, the defense was insanity, and the court excluded from a hypothetical question put to defendant's expert, an assumption that there was no motive for the shooting, but there was sub- stituted in the question an assumption that deceased and defendant were "close personal friends," the exclusion was not error. State v. Dunn, 179 Mo. 95, 77 South- western 848. (e) Receiving testimony of expert that alleged "black- hand" letter received by accused was in his hand- writing. In a prosecution for homicide, where a "black hand" letter alleged to have been received by the accused bore upon it indications of spuriousness that could hardly deceive a jury of average intelligence, and the record 94 The Trial— Evidence. §40 showed that the evidence was sufficient to support a con- viction, without the testimony of an expert, that the "black hand" letter was in accused's handwriting, admis- sion of the expert's testimony, after a hurried examina- tion, was not prejudicial error. People v. Strollo, 191 N. Y. 42, 83 Northeastern 573. (/) Admitting answer of expert, "I believe it was homi- cide" and "I believe it was murder." Where, in a trial for murder, the evidence showed either a case of suicide or murder, a question asked an expert as to what in his opinion was the cause of the woman's death, his answer, "I believe it was homicide," and "I believe it was murder," was not ground for re- versal. State V. Schneek, 85 Kans. 334, 116 Pacific 823. {g) Admitting evidence of expert witness as to whether the physician who cured accused of insanity could tell what produced it. The admission in evidence of the statements of an ex- pert witness as to whether, in his opinion, the physician who treated the accused for insanity and cured him, could tell what produced it, could not have affected the verdict, and furnishes no cause for reversal. Strickland V. State (Ga. Sup.), 72 Southeastern 922. Sec. 40. Opinion evidence. (o) Opinon evidence cured by cross-examination. The error, if any, in permitting a state's witness to testify that he placed himself in the position taken by accused's witness, testifying to the difficulty between accused and decedent, and that from that point the diffi- culty could not have been seen, was cured by the fact 95 § 40 Errors in Criminal Proceedings. that the state's witness was fully cross-examined as to the point of his observation. State v. Heath (Mo. Sup.), 141 Southwestern 26. (b) Opinion by coroner as to position of deceased when wound was inflicted. Where a witness, who having qualified as a medical expert and as coroner, had examined the body of the deceased and the surroundings, and, after having de- scribed the wound and the direction of the bullet, and of the facts and details, was permitted to give his opinion as to the position of the deceased when the wound was inflicted, the defendant admitting guilt, any error was harmless and would afford no ground for reversal. Wells v. Territory, 14 Okla. 436, 78 Pacific 124. (c) Hypothetical question to a physician calling for a legal opinion. Though a hypothetical question put to a physician, whether, in his opinion, the facts assumed would consti- tute rape, is altogether improper, being a demand for his legal, instead of his medical, knowledge ; yet if he gives a correct answer the error is harmless, and is no ground for a new trial. People v. Brown, S3 Mich. 531, 19 Northwestern 172. (d) Opinion evidence that wound could have been in- flicted with an ax. Where, in a prosecution for homicide, there was no evidence contradicting proof that a wound on decedent's forehead was inflicted by defendant with an ax, the over- ruling of objection to evidence of a witness, who had seen the wound, that the same could have been inflicted with an ax, on the ground that it was the opinion of the 96 The Trial— Evidence. §41 witness, was harmless. People v. Morine, 138 Cal. 626, 72 Pacific 166. By physician that the wounds inflicted produced death. Fay v. State (Tex. Cr. App.), 107 Southwestern 55. (e) Admission of opinion of nonexpert witness that crow- bar with which defendant struck deceased was a deadly weapon. The crowbar with which defendant, a boy fifteen years of age, struck deceased, being shown to have been thirty inches long and to have weighed eleven pounds, admis- sion of opinion of a nonexpert witness that it was a deadly weapon in the hands of defendant, even if error, was harmless. Ashley v. State (Tex. Cr. App.), 126 Southwestern 589. (/) Where imbecility of prosecutrix was established, ad- mission of opinion of witnesses as to her actions. Where, on a trial for rape, the imbecility of prosecu- trix was established, the admission of the opinions of witnesses as to her actions was not prejudicial. State v. McKinnon (Iowa Sup.), 138 Northwestern 523. Sec. 41. Evidence admitted out of correct order. (a) Irregularity in the admission of testimony. The order and method for the submission of testimony to the jury is in the sound discretion of the presiding judge, and a new trial will not be granted because the judge permitted further testimony to be introduced after the evidence had been closed on both sides and argu- ment of counsel had commenced, unless it be shown that the prisoner was prejudiced thereby in some other way 97 Errors — 7. § 42 Errors in Criminal Proceedings. than by its mere irregularity. Jordan v. State, 22 Fla. 528. (fc) Admitting evidence for prosecution after defense had closed. The admission of evidence for the people, which is properly evidence in chief, after the close of the exam- ination of the witnesses for the defense, is not ground for reversal, where the accused is not denied the right to rebut such new evidence. Collins v. People, 98 111. 584. (c) Admitting evidence in chief in the rebuttal Although evidence that should have been introduced in chief is admitted in rebuttal, it is not available error. Bryant v. State, 106 Ind. 549, 7 Northeastern 217; Truax v. Commonwealth, 149 Ky. 699, 149 Southwestern 1033. Sec. 42. Unanswered questions. (a) Unanswered improper question to accused. A conviction will not be reversed and a new trial granted merely because the accused was asked an im- proper question which he did not answer. McClary v. State, 75 Ind. 260. (fc) Unanswered improper question to witness. Defendant in a criminal prosecution is not prejudiced by the act of the prosecuting attorney in propounding an objectionable question to a witness, where the witness does not answer the question. Duncan v. State, 171 Ind. 444, 86 Northeastern 641; State v. Burpes, 65 Vt. 1, 25 Atlantic 964, 19 L. R. A. 145 ; State v. Fitzgerald, 72 Vt. 142, 47 Atlantic 403; Marlow v. State, 49 Fla. 7, 38 Southern 653 ; Watts v. State, 99 Md. 30, 57 Atlantic 542. 98 The Trial— Evidence. §43 Sec. 43. Evidence admitted- (a) Evidence which both parties read to the jury. A prisoner has no cause to complain of the admission of testimony which he, as well as the state, reads in evi- dence. Robinson v. State, 23 Ark. 180. (&) Conflicting evidence, where credibility not involved. Where there is conflicting evidence, it is the duty of the jury, if possible, to reconcile conflict, and, after doing so, if the defendant is convicted, and there is evidence Sustaining the verdict, and there is no question as to the credibility of the witnesses, and there is nothing to show that the jury were influenced by any improper motive, this court will not set the verdict aside. Robinson & Williams v. State, 24 Fla. 358. (c) Materiality considered before ordering reversal. It rarely happens that in a long trial one judge would rule similarly on evidence with another; hence, the mate- riality of the evidence will be considered before revers- ing, whether it would do any injury to the accused, else there could seldom be a long trial affirmed. Brook v. State, 4 O. C C. 160, 2 O. C. D. 477, affirmed by Su- preme Court, w. o. March 26, 1889. {d) Admission of partially competent evidence. The admission of evidence partially competent, against a general objection, is not reversible error where any ma- terial part of such evidence was competent for any pur- pose. Kent v. State, 42 O. St. 426. {e) Excluded evidence afterwards received. If it appears from the record that the evidence in- 99 § 43 Errors in Criminal Proceedings. tended to be elicited by the excluded question was in fact received, so that no injury was done, the error is cured. Gondolfo V. State, 11 O. St. 114. (/) Apparently contradictory statement by witness. A statement by a witness in conflict with an inconclu- sive portion of his testimony, the statement not amount- ing to an admission that his testimony was false, is not ground for a new trial. Aholtz v. People, 121 111. 560. (g) Testimony as to chastity erroneously admitted. Evidence that one of the witnesses, whose reputation for chastity had already been shown to be bad, was in the habit of visiting bawdy houses, though erroneously admitted, could not be considered on appeal, as it was not prejudicial to defendant. She was accorded a fair trial, and the punishment assessed was not excessive. Whitlock v. State, 4 Ind. App. 432, 30 Northeastern 234. (h) Admitting evidence of conviction of third person. Where, on the trial of a licensed saloonkeeper for as- saulting a policeman on Sunday, accused admitted that the policeman, on finding the accused in the saloon on Sunday, attempted to enter and was assaulted, though Burns' Ann. Stat. 1908, sees. 8326, 8330, 8782, 8785, pro- hibited persons from entering saloons on Sunday, and required policemen to enforce the act, the error, if any, in admitting evidence of the conviction of a third person for assault and battery committed on the officer on the same occasion was riot prejudicial. "A policeman has a right to enter a saloon, run in violation of law, and his forcible expulsion by the saloonkeeper constitutes assault and battery." Dotterer v. State, 172 Ind. 357, 88 North- eastern 689. 100 The Trial— Evidence. §43 (t) Admitting evidence tending to warrant a greater penalty. Where the lowest penalty authorized was assessed against accused, error in admitting evidence as tending to show a wilful violation of the law and to justify as- sessing a greater penalty was harmless. Lucas v. State (Ind. Sup.), 90 Northeastern 305. (/) Admitting oral statements of value in a prosecution for attempt to hum insured goods. Where, in a prosecution for attempting to burn insured goods, with intent to defraud the insurance company, it does not appear from the record that the written appli- cation for insurance was offered in evidence, or was present in court, or contained any statement of value, and the record contains nothing from which this can be inferred, the admission of evidence of such verbal state- ments of value is not such an error as will reverse a judgment. People v. Jones, 24 Mich. 215. (fe) Admitting statements of wife of accused. The admission in a burglary case of statements by the wife of defendant, on being found in the room containing property stolen at the burglary, that the room was her room, and the admission in evidence of the stolen goods, even if erroneous, is harmless, where other evidence shows, beyond reasonable doubt, that the room was oc- cupied by her and the defendant. People v. Gregory, 130 Mich. 522, 90 Northwestern 414, 9 D. L. N. 142. (/) Admission of evidence that defendant kept account in an assumed name. In a trial for keeping a house of ill fame, there was evidence that defendant kept a house, and that the in- 101 §43 Errors in Criminal Proceedings. mates paid her for board and room rent, and divided with her their earnings. A female testified to telephoning to defendant from another town, inquiring whether she needed any more girls, and, on receiving an affirmative answer, the witness became an inmate. There was no evidence that defendant had a husband, except the un- derstanding that a man was her husband. There was no evidence that this man had any connection with the busi- ness carried on at the house. Held, that the admission of evidence that defendant, under an assumed name, kept bank and store accounts, was not reversible error. Peo- ple V. Wheeler, 142 Mich. 212, 105 Northwestern 607, 12 D. L. N. 684. (m) Testimony of physician to reasonableness of fee for post mortem examination. In a prosecution of a coroner for obtaining money from the state by false representations, that a certain person over whom an inquest was held was a stranger not belonging to the state, and that the expense of the inquisition and burial were accordingly payable by the state, testimony of the physician who made the post morten examination, given in answer to a hypothetical question, as to the reasonableness of the fee for the post mortem examination included by defendant in his bill was immaterial, but not prejudicial. People v. Hofifman, 142 Mich. 531, 105 Northwestern 838, 12 D. L. N. 805. (n) Witness testifying to inculpating statement of de- fendant's wife. There was no prejudicial error in permitting a witness to testify to a statement made by defendant's wife which indicated his guilt, where the testimony was not objected to at the time, was largely a repetition of the testimony 102 The Trial— Evidence. §43 of the witness on cross-examination, was partially ad- duced by counsel for defendant, was afterwards contra- dicted by the wife when on the witness stand, and would have been proper on rebuttal even under objection. Peo- ple V. De Camp, 146 Mich. 533, 109 Northwestern 1047, 13 D. L. N. 862. (o) Asking witness whether his wife was a prostitute. On a trial for murder, where a witness testified that deceased had tried to hurt him to kill defendant, and ad- mitted on cross-examination that he married his wife from a house of prostitution, the asking, in good faith, of the question, whether she was a prostitute, was not prejudicial to defendant, when the answer was excluded. People V. Palmer, 105 Mich. 568, 63 Northwestern 656. (/>) Results of experiments as evidence. Evidence of the results of experiments, tending to cor- roborate the testimony of witnesses for the state that they saw and heard certain things from a particular po- sition; held, not prejudicial, where the experiments tended to prove nothing that was not self-evident from photographs and measurements already in evidence. State V. Smith, 78 Minn. 362, 81 Northwestern 17. {q) Introducing, without discrimination, burglar's tools, where four are tried. Where four defendants, indicted for robbery commit- ted during an attempt to rob a train, are tried together, it is harmless error to introduce, without discrimination, burglar's tools and other articles found in the defend- ants' possession at the time of arrest, together with sim- ilar articles found on the persons of two other men ar- rested at the same time as defendants, but not then on 103 § 43 Errors in Criminal Proceedings. trial. Technically it was error to receive in evidence the revolvers of the two not on trial. The object of the evi- dence was to show that the revolvers found on defend- ants were alike, in connection with evidence that defend- ants at the time of the holdup were similarly armed. State V. Minot, 70 Minn. 118, 81 Northwestern 753. (r) Admitting testimony of wounded person to acts of accused. In a prosecution for wounding a person under Revised Statutes 1899, sec. 1849 (Ann. Stat. 1906, p. 1279), the admission of testimony of the wounded person, as to whether the accused had ever put anything on the sores produced, or done anything relative thereto, if improper, was not reversible error. State v. Niehaus, 217 Mo. 332, 117 Southwestern 73. (s) On trial for gaming, evidence of policeman of what he saw. Where the evidence in a prosecution for keeping gam- ing devices showed that a game was in operation when one employed by the police entered the place to start a game with money furnished him, and accused was then present and permitted the game to be played, and was taking his percentage of the earnings, the oflFense was complete, so that the accused can not complain of the admission of testimony of such police employe as to what he saw while he was in the gaming room. State v. Lee. 228 Mo. 480, 128 Southwestern 987. (t) Permitting state to show that its witness had never before been convicted of any offense. Where a state's witness admitted on cross-examination that he had been convicted of perjury committed before 104 The Trial— Evidence. §43 the grand jury, in connection with an offense with which accused was charged, the error, if any, in permitting the state to show by the witness that he had never before been convicted of any offense was not prejudicial to ac- cused, since it did not add anything to the fact brought out on cross-examination. State v. Weisman (Mo. Sup.), 141 Southwestern 1108. (m) Proof of different statement by witness to grand jury. Where a witness for the defense testified that at the time of the shooting deceased jumped out of a wagon with a gun in his hands, proof by the prosecution that said witness, when testifying before the grand jury, did not state whether deceased had a gun in his hands or not, if error, is not prejudicial. Territory v. Clayton, 8 Mon. 8, 19 Pacific 293. (v) Erroneous admission of a dirk in evidence. Where, in a trial for housebreaking, accused, in ex- plaining his flight from the immediate vicinity of the house, after the breaking and entry thereof had been dis- covered, testified that he ran away because he had a dirk knife in his possession, and that he was afraid, if arrested, that he would be in danger of conviction for carrying a concealed weapon, the error, if any, in admitting the dirk knife in evidence was not prejudicial. State v. Simpson, 32 Nev. 138, 104 Pacific 244. (w) Physician permitted to testify as to wounds of ac- cused. It was not erroneous to permit the physician of the jail in which the accused was confined to testify to a wound observed by him on the back of the hands of 105 § 43 Errors in Criminal Proceedings. accused, although he also testified that he had the ac- cused removed to a room in another part of the jail and divested of his clothing. The observation made by the w^itness of the wounds on the hands and testified to by him was, in no sense, a compelling of the accused to be a witness against himself. If the removal of the clothes had been forcible, and the wounds had been thus ex- posed, it seems that the evidence of their character and appearance would not have been objectionable. State V. Miller, 71 N. J. L. 527, 60 Atlantic 202. (x) In prosecution for seduction evidence of reputation of prosecutrix after first intercourse. In a prosecution for seduction the admission of evir dence as to the reputation of the prosecutrix after the date of the first intercourse was not prejudicial error. Tedford v. United States (Okla. Sup.), 104 Southwestern 608. (y) Trying one for felony, state showing two others in jail charged with same offense. Where three are jointly indicted for a felony and one is on trial, it is not prejudicial error to permit the state to show that the other two are in jail charged with the same offense. State v. Shores, 31 W. Va. 491, 7 South- eastern 413. {z) Evidence for the court offered in the presence of the jury. The reception of evidence in the jury's presence, in- tended for the court to lay the foundation for the admis- sion of a dying declaration, is not reversible error. State v. Clark, 64 W. Va. 625, 63 Southeastern 402. 106 The Trial— Evidence. §43 (aa) Sustaining objection to proper question cured by answer to another covering the same matter. Error in sustaining an objection to a proper question is cured by admitting an answer to another question cov- ering the same subject-matter. State v. Gibson, 67 W. Va. 548, 68 Southeastern 295, 28 L. R. A. n. s. 965. {bb) Admitting evidence also applicable to other offenses. One accused of conspiring to suborn perjury in pro- ceedings for the purchase of pubHc lands, under the tim- ber and stone act, is not prejudiced by admitting evi-i dence of an attempt to acquire state school lands by Hke unlawful methods, because it tends to show the commis- sion of crimes other than those charged in the indict-, ment, especially where the trial judge, in his charge, carefully limits the application of the testimony so as to prevent any improper use thereof. Williamson v. United States, 207 U. S. 425. {cc) Admission of proof of making false claim to affect accused's reputation for veracity. In a prosecution for perjury alleged to have been com- mitted by accused in support of W's homestead claim, accused was not prejudiced by the admission of proof in support of his homestead claim, in which he swore that he had continuously resided on land other than the place where he actually resided, for the purpose of affecting his reputation for truth and veracity, which a witness for accused had previously testified had been good, such homestead proof not being contradicted in any particular. Barnard v. United States, 162 Federal 618, 89 C. C. A. 376. 107 § 43 Errors in Criminal Proceedings. (dd) Allowing prosecutor to testify in violation of exclu- sion rule. Error in allowing prosecutor to testify after having been permitted to remain in the courtroom while the rule was in force does not necessitate a reversal, where no substantial injury was thereby done to the defense. Smartt v. State, 112 Tenn. 539, 80 Southwestern 586. (ee) Admitting evidence in prosecution for arson that de- fendant's clothes smelt of kerosene. Where evidence is admitted, over objection, in a pros- ecution for burning a dwelling house to defraud the in- surers, that clothing worn by defendant at the fire re- tained an odor of kerosene at the time of the trial, and on cross-examination the court states that there is no use going on with such testimony, as the clothing has been accessible to persons going in and out of the court- room, the admission of such evidence, in the absence of a request to strike it out, is. harmless error. People v. Bishop, 134 Cal. 683, 66 Pacific 976. (ff) In prosecution for murder admission in evidence of the bloody clothing of deceased. In a prosecution for murder, admission in evidence of the bloody clothing of deceased was not cause for re- versal, where such evidence was of such slight conse- quence as not to have assisted in bringing about a con- viction or the enhancement of the punishment. Long v. State, 48 Tex. Cr. Rep. 175, 88 Southwestern 203; Tinsley V. State (Tex. Cr. App.), 106 Southwestern 347. (gg) Admitting testimony of absent witness at a former trial. Error in admitting testimony of an absent witness at 108 The Trial— Evidence. §43 a former trial, on an insufficient predicate, is cured by- subsequent evidence establishing the predicate. Dennis V. State, 118 Ala. 72, 23 Southern 1002; People v. Boyd (Cal. App.), 116 Pacific 323. The substance of it by recollection of another witness. Fuqua v. State (Ala. Sup.), 56 Southern 751. (hh) Prosecuting attorney asking questions to show the. moral depravity of accused. Where, in a criminal case, accused and his witnesses showed his moral depravity, the conduct of the prosecuting attorney in asking witnesses questions showing the moral depravity of accused was not prejudicial within Penal Code, sec. 1404, requiring the court to disregard errors, unless the same have actually prejudiced accused, though the court only sustained objections to the questions and struck out the answers, without directing counsel, by ex- press command, to refrain from further questioning. People V. Davis (Cal. App.), 88 Pacific 1101, rehearing denied, 81 Pacific 716, 718. (ii) Error cured by offering to introduce minutes of cor- poration. In a prosecution for burglary, any error in permitting a witness to testify that he had actual care, control and management of the house and property which belonged to a corporation, whose minutes showed something of his employment as cashier, was cured by offering to allow the introduction of the minutes of the corporation. Cal- loway V. State, 50 Tex. Cr. Rep. 72, 94 Southwestern 902. (//) Officer allowed to testify to the crime defendant was extradited for. In a prosecution for rape, where the record contained 109 § 43 Errors in Criminal Proceedings. all the proceedings in extradition, except the warrant issued by the President of the United States, was offered by the state and received in evidence, the officer who re- ceived the custody of defendant from the British Colum- bia authorities, was permitted to state for what crime defendant was extradited. Held harmless error, though the warrant itself would have been the best evidence, because, in the absence of a contrary showing, it would be presumed that the proceedings were regular, and that the warrant was in accord with the other proceedings shov>m of record. State v. Roller, 30 Wash. 692, 71 Pa- cific 718. (kk) In a prosecution for carrying a pistol, evidence that defendant was under the influence of liquor, as bearing on the intent. Though the court should not comment on the testi- mony in its ruling on evidence, its remark on admitting evidence in a prosecution for carrying a pistol, the de- fense being that defendant was a traveler, and on evi- dence of defendant being under the influence of liquor when seen with the pistol about the streets of the town, that he would admit it as bearing on the intent of de- fendant was not injurious, at least to the extent of rer quiring a reversal. Colson v. State (Tex. Cr. App.), 105 Southwestern 507. (//) Permitting prosecuting attorney to testify that a person offered him money to settle the prosecution. Where the prosecuting attorney was erroneously per- mitted to testify that a person had offered him money to settle the prosecution, but it was conclusively shown that such person had not been authorized to represent de- 110 The Trial— Evidence. §43 fendant, the error was harmless. People v. Ryder, 151 Mich. 187, 114 Northwestern 1021, 14 D. L. N. 912. [(mm) Witness for defense permitted to state that in prose- cuting defendant the state was up against a hard proposition. In a criminal prosecution the admission of statement made by a witness for the defense, that in the prosecu- tion of the defendant the state was up against the hard- est proposition they had ever been, because of those in- terested in defendant's behalf, was harmless. Sue v. State (Tex. Cr. App.), 105 Southwestern 804. (mm) Admission in evidence that defendant gained access through a hole in a window screen, and admitting testimony to contradict. Where, on a prosecution for burglary, there was evi- dence tending to show that defendant entered the build- ing through a hole in the window screen, and in order to prevent a continuance because of the absence of a wit- ness, the state admitted that such hole had been in the screen prior to the burglary, error In admitting testi- mony to contradict the admission was harmless, where it appeared that, even though the hole had been in the screen prior to the alleged burglary, nothing but wood and water were ever taken through the window, and there was no evidence that any person was in the habit of passing in or out of the hole. Davis v. State (Tex. Cr. App.), 107 Southwestern 855. (oo) Permitting the state to question witness as to his reasons for unfriendliness to defendant. Error in permitting the state to question a witness called by defendant, as to the reasons for his unfriendli- 111 § 43 Errors in Criminal Proceedings. ness to defendant, was without prejudice to defendant, where nothing was developed at all derogatory to de- fendant's character, or which reflected in the least upon his reputation as a citizen. State v. Knight, 106 Minn. 371, 119 Northwestern 56. (pp) On a trial for stabbing, permitting physician to testi- fy as to what he did in the way of treating the wound of the prosecuting witness. Error, if any, on a trial for stabbing, in permitting a physician to testify as to what he did in the way of treat- ing the wound of prosecuting witness was without prej- udice. Stevens v. State, 84 Neb. 759, 122 Northwest- ern 58. {qq) Evidence tending to establish guilty knowledge. It was not prejudicial, on the prosecution of the presi- dent of a bank under B. & C. Comp., sec. 1807, making it larceny for one having in his possession money of the state, to convert it to his own use, to admit evidence tending to establish his knowledge of the terms of the statute providing for designating of banks as depositaries of the state funds. State v. Ross (Ore. Sup.), 104 Pacific 596. (rr) Admitting evidence that accused had been in jail else- where charged with crime. The error, if any, in admitting evidence that accused had been incarcerated in the general jail, in a distant city, charged with crime, was not prejudicial to accused. Cabera v. State, 56 Tex. Cr. Rep. 141, 118 Southwestern 1054. Of accused having been convicted elsewhere. State V. Le Pitre, 54 Wash. 166, 103 Pacific 27. 112 The Trial— Evidence. §43 (ss) Admitting evidence of indictment against another for burglary. Where the record proves a clear case of burglary against accused as charged, and he received the mini- mum punishment, the admission in evidence of the in- dictment in another case against another person for bur- glarizing a car on the same night on which accused w^as alleged to have burglarized a car, if error, was not preju- dicial. Churchill v. State, 56 Tex. Cr. Rep. 213, 120 Southwestern 195. (tt) Admitting evidence that accused stated he was leav- ing home to keep from killing or being killed. Where it was shown that accused had, on the Thurs- day before the Saturday on which the killing occurred, bought shells which corresponded to the wads found where decedent was killed, and were like shells poured out of his grip by accused after his arrest, and that he had told another that he once got his gun to shoot de- cedent, but refrained, and that he would kill him but for his mother, the admission of evidence that accused told another on the Thursday before the killing that he was leaving home to keep from killing someone or being killed, and he would hear from him later, was harmless. Wright V. State, 56 Tex. Cr. Rep. 353, 120 Southwestern 458. (uu) In a prosecution for illegally selling liquor, admitting testimony of amount of money accused stated he made therefrom. In a prosecution for illegally selling intoxicating liq- uor, where the evidence was circumstantial, and prose- cuting witness could not positively identify accused, the 113 Errors — 8. § 43 Errors in Criminal Proceedings. admission of testimony of a witness that accused had stated in his presence that he (accused) had made $8,000 selling whisky in the town, and had as much as $400 worth of whisky shipped to him there at one time, which tended to show that accused was the person selling the liquor, if error, was not of sufficient importance to re- quire a reversal. Williams v. State, 56 Tex. Cr. Rep. 596, 120 Southwestern 882. (w) On a trial for a false bank report, evidence that accused falsified report of another hank. In a trial for making a false report of a bank of which accused was cashier, as to the amount due from other banks, that evidence of expert as to the condition of the books included a statement that the books of another bank showed that accused falsified his report, did not prejudice accused, though there was no evidence of the contents of the books of such other bank or of their cor- rectness, it appearing conclusively from the record, aside from the experts' evidence that accused knowingly made the false report as charged in the count on which he was found guilty. Ruth v. State, 140 Wis. 373, 122 North- western 733. {ww) Unexpected answer of witness that he was holding defendant because he had been convicted. Where, in a prosecution for theft, the witness was be- ing interrogated concerning defendant's escape, and stated that he was holding defendant because he had been convicted, which answer was wholly unexpected, it being expected that the witness would reply that he was holding defendant on the charge for which he was being tried, and none other, and the court instructed the jury to disregard the answer, it was not of sufficient import- 114 The Trial— Evidence. §43 ance to justify a reversal of the conviction. Leonard v. State, 56 Tex. Cr. Rep. 307, 120 Southwestern 183. (■x^x) In a prosecution for murder, witness asked why he did not take certain tools found near accused said, "I was not ready to die." In a prosecution for murder a w^itness for the prosecu- tion was asked upon direct examination whether he had certain tools found near decedent, on replying that he did not, he was asked why he did not, to which he re- plied, "I was not ready to die." This answer was, on defendant's motion, stricken out. Held, that the error was cured. People v. City, 11 Cal. App. 702, 106 Pa- cific 257. {yy) Admission of evidence of similarity between hair found in deceased's hand and that on head of accused. Even if admission of evidence of similarity of hair found in deceased's hand to that on accused's head was error, it was harmless, the only advantage defendant could have from a different conclusion being that it would point to someone other than the defendant as the murderer, no claim being made for him that the hair resembled that of any other person who might have been guilty of the crime. State v. Whitbeck (Iowa Sup.), 123 Northwestern 982. {zs) In prosecution under local option law, admission of testimony that prosecuting witness was given money to buy alcohol. In a prosecution for violating the local option law, it was harmless to admit testimony that the prosecuting 115 §43 Errors in Criminal Proceedings. witness was furnished money with which to purchase alcohol, without showing that he purchased alcohol there- with. Morris v. State (Tex. Cr. App.), 44 Southwestern 510. (aaa) Admission of evidence that an employee of de- fendant sold liquor in defendant's place of business. On a trial for the illegal sale of liquor in person, the admission of evidence that an employe of the defendant sold liquor in defendant's place of business, and as his property, was not error, where the fact was fully shown by the defendant himself. Clark . v. State, 40 Tex. Cr. Rep. 127, 49 Southwestern 85. (bbb) Receiving evidence as to the number of practicing physicians in a town. Permitting evidence, on a prosecution for violating the local option law, as to the number of practicing physi- cians in the town where the sale was made is harmless error. Smead v. State (Tex. Cr. App.), 49 Southwest- ern 597. (ccc) In a prosecution for selling liquor in a justice's precinct, zvhere the sale is forbidden, evidence as to how many votes were cast in the election. In a prosecution for selling intoxicating liquors in a justice's precinct, where the sale is forbidden, evidence as to how many votes were cast at the election is harm- less. Shilling V. State (Tex. Cr. App.), 51 Southwestern 240; Leftwich v. State (Tex. Cr. App.), 55 Southwest- ern 571. 116 The Trial— Evidence. §43 (ddd) In a prosecution for disturbing an assembly, admis- sion of evidence that after warning defendant and companions witness left. Where accused was subjected to the minimum pun- ishment for disturbing a reHgious assembly, he was not prejudiced by the erroneous admission of evidence of the state's witness that, after warning the defendant and his companions not to disturb the meeting, witness left the services, because he thought there was going to be a disturbance. Boyd v. State, 57 Tex. Cr. Rep. 250, 122 Southwestern 393. (eee) Admission of evidence of wounds inflicted by de- fendant on one who, accused alleged, threatened his life. In a prosecution for carrying a pistol, in which the evidence showed that after another had threatened ac- cused's life he, on hearing of such threats, secured a pistol and shot such other after a quarrel, the admis- sion of evidence as to the character of the wounds in- flicted was not prejudicial, accused having received the minimum punishment. Hines v. State, 57 Tex. Cr. Rep. 216, 123 Southwestern 411. (///) Permitting complainant to testify, though not an expert, to blood poisoning. In a prosecution for aggravated assault, there was no substantial or reasonable error in permitting complainant to testify, though not an expert, that he was apprehen- sive that blood poisoning might result from his wounds. Backer v. State (Tex. Cr. App.), 124 Southwestern 912. 117 § 43 Errors in Criminal Proceedings. (999) Permitting sheriff to testify to nature and extent of wound. The sheriff's testimony as to the character of the wound, the range and depth thereof, and as to being present when the physician probed it, and as to his hear- ing it described at the time, but so far as appeared not undertaking to reproduce or state any testimony or statement made by the physician, was objected to on the ground that he was not qualified to speak as to the char- acter of the wound. Held that, as the shooting was ad- mitted, and the wound was shown to be mortal and the direct cause of death, there was no error in allowing his testimony. Pollard v. State (Tex. Cr. App.), 125 South- western 390. (hhh) In a prosecution for rape, asking prosecutrix whether any one had anything to do with her before alleged crime. In a rape prosecution, after the prosecutrix had testi- fied on direct examination that accused had intercourse with her on a certain day in the latter part of August, and that she gave birth to a child the following March, she was asked, on cross-examination, whether anyone had anything to do with her before that date, and the state asked on redirect examination what witness's an- swer was to the question asked on cross-examination, as to whether anyone had anything to do with her before the date mentioned, her answer being, that accused had. Held, that accused could not have been injured by the question asked by the state on redirect examination. Washington v. State (Tex. Cr. App.), 125 Southwestern 917. 118 The Trial— Evidence. §43 (m) Where accused admitted writing some of the letters introduced permitting witness to testify to de- fendant's handwriting. Where accused, on examination of his own counsel, admritted writing at least some of the letters introduced in evidence, the error, if any, in permitting a witness ta testify as to the handwriting of accused was not preju- dicial. State V. Mitchell (Mo. Sup.), 129 Southwestern 917. (///) Where accused admitted striking decedent when down, admission of accused's brother's direc- tions, "Now give it to him." In a murder case, where accused testified on direct ex- amination that he struck decedent two or three times when decedent was on the ground, the admission of ac- cused's brother's directions, "Now give it to him," was not prejudicial. Ossenkop v. State, 86 Neb. 339, 126 Northwestern 72. (kkk) Testimony of justice that a witness had testified as in his court. Testimony of a justice of the peace that a witness who had been indicted with accused for the same offense had testified at the trial substantially as in the justice's court was not reversible error, where he stated what the tes- timony of such witness was in the justice's court, his opinion as to the similarity of the testimony not prevent- ing the jury from passing upon the question, though the court might have instructed the jury not to consider his opinion. State v. Shuford, 152 N. C. 809, 67 Southeast- ern 923. 119 § 43 Errors in Criminal Proceedings. (///) In a prosecution for assaulting a city marshal, evi- dence by latter that the father was convicted. In a prosecution for assaulting a city marshal who had arrested accused's father, the record of the convic- tion of the father was received in evidence without ob- jection. Held, that evidence by the marshal that the father was convicted, if inadmissible, was immaterial. Marsden v. State (Tex. Cr. App.), 126 Southwestern 1160. (mmm) Admitting evidence in homicide case that accused was armed when arrested. Any error in admitting evidence in a homicide case that accused had certain weapons and ammunition on his person when arrested after escaping, and as to the char- acter of such weapons, which were about the same he had before the killing, could not have injured accused so as to be ground for reversal. Hunter v. State (Tex. Cr. App.), 129 Southwestern 125. (mm) Permitting question to prosecutrix, "Would you have yielded to the sexual embraces of defendant had he not promised to marry you?" On a trial for seduction, it is not reversible error to permit the state to ask the prosecutrix the question, "Would you have yielded to the sexual embraces of de- fendant had he not promised to marry you?" Hinman V. State (Tex. Cr. App.), 127 Southwestern 221; Brown- ing V. State (Tex. Cr. App.), 142 Southwestern 1. (ooo) On a trial for homicide, testimony of witness that he said to a brakeman, "The man we want is there." In a trial for homicide, where the crime was commit- 120 The Trial— Evidence. §43 ted on a moving train, a witness testified that after the train had stopped, he said to a brakeman, "The man we want is going up there. I think we ought to get him," and the accused was then pursued and arrested. There was no question as to the identity of accused. Held, that such testimony, while technically neither material nor competent, would not be ground for reversal, in the absence of some showing that defendant was preju- diced. State V. Sloah (Iowa Sup.), 128 Northwestern 842. iPPP) I^ o, prosecution for murder, testimony of witness that when deceased followed defendant he raised his hand to strike him. Where a witness, in a prosecution for murder, testified that when deceased followed defendant he raised his hand to strike him, and the court ordered that the con- clusion of the witness be stricken out, and that he stated the position of deceased's hands, the ruling was not prej- udicial error. State v. Byrd, 41 Mont. 585, 111 Pacific 407. (qqq) On a trial of a police inspector for bribery, permit- ting witness to state the purpose for which money was wanted. In the trial of a police inspector for bribery to protect immoral resorts, error in permitting a witness to state the purpose for which his brother said he wanted money furnished by witness, which money, the brother testified, was given accused, was harmless. People v. McCann, 247 111. 130, 93 Northeastern 100. {rrr) Witness permitted to testify that he took pistol' from defendant's hands after he had shot and killed a man. .Where a witness testified that he took a pistol from 121 § 43 Errors in Criminal Proceedings. defendant's hands, after he had shot and killed a man, but was unable to positively identify the one shown him at the trial, its admission in evidence over objection, was not prejudicial to defendant, where the identity was not questioned. State v. Byrd, 41 Mont. 585, 111 Pacific 407. (sss) Witness asked how many times he had drunk beer at place in question in the last year and a half. Where the information, in a prosecution for keeping a common liquor nuisance, covering the time from Jan- uary 1, 1909, until May 18, 1910, a question asked the witness as to how many times he had drunk malt or beer at the place in question, in the last year and a half, if erroneous, as embracing more time than alleged in the information, was not prejudicial, the time inquired about was at best but a slight variance, and numerous witnesses having answered substantially the same question without objection on the part of the defendant. State v. Albert- son (N. D. Sup.), 128 Northwestern 1122. (ttf) In a prosecution for homicide, where defendant ac- cidentally shot a bystander, admitting that fact in evidence. In a prosecution for homicide, where the defendant accidentally shot a bystander, the admission of that fact in evidence was harmless error, where the bystander was in nowise implicated in the quarrel. Childs v. State (Ark. Sup.), 136 Southwestern 285. (uuu) On a trial for murder, admitting evidence of the number of decedent's watch. Where accused, on trial for murder perpetrated in the commission of a robbery, admitted that he was in pos- session of the watch of the decedent, and sought to ex- 122 The Trial— Evidence. §43 cuse his possession, the error, if any, in admitting evi- dence as to the number of the watch of decedent was harmless. State v. Mangana (Nev. Sup.). 112 Pacific 693. (wv) Admission in evidence of cartridge box found in house of accused on zvhich was written, "Good- bye all." The admission in evidence of the cartridge box found in the house where accused was arrested, on which was written, "Good-bye all," designed to show an attempted suicide by accused subsequent to the homicide, if erro- neous, on the ground that there was no evidence that ac- cused wrote the words thereon, or was connected with it, was harmless, the eyidence not relating to any direct issue, where such attempt was otherwise proved by un- contradicted testimony. People v. Green, 201 N. Y. 172, 94 Northeastern 658. (www) In action for rape, on stating she had been con- firmed, prosecutrix asked in what church. Prosecutrix, in a statutory rape case, was asked, in order to corroborate her testimony as to her age, whether she was confirmed this year, and answered, "Yes," and was asked in what church, and answered, over objection, "In the German Reformed Church." Held, that the admission of such answer, though not relevant, could not have materially prejudiced accused. Smiss V. State, 145 Wis. 601, 130 Northwestern 525. {xxx) On trial for perjury, question, if witness heard the mortgagor in another suit testify that note and mortgage were not drawn for amount stated. In a trial for perjury in falsely testifying that the note and mortgage were not altered as to amount, it was not 123 § 43 Errors in Criminal Proceedings. reversible error for the prosecutor to ask a witness if he heard the mortgagor testify in another suit that "note and mortgage were not drawn for the sum of $ ," where the question was withdrawn on the accused's ob- jection, and the jury were instructed not to consider it. State V. Smails (Wash. Sup.), 115 Pacific 82. (yyy) In an action for insulting a schoolteacher, permitting a witness to characterise the language used as vile, etc. Where the uncontradicted evidence showed that ac- cused visited a school and, in the presence of the pupils thereof, had a personal controversy with the teacher, and used language insulting to the teacher, in the presence of his pupils, the error, if any, in permitting a witness to characterize the language used as vile, profane and abusive was not prejudicial, the punishment for the of- fense being a fixed amount, so that the opinion of the witness could not increase the punishment. New v. State (Ark. Sup.), 137 Southwestern 564. {zzs) Permitting witness to testify that accused pleaded guilty to gaming. Under Penal Code 1911, art. 582, authorizing a con- viction for violating a statute on gambling, on the un- supported evidence of an accomplice, the error, if any, in allowing one of two witnesses testifying that they and accused gambled on the occasion in question, to state that he had pleaded guilty to gambling was not preju- dicial to accused. Sparks v. State (Tex. Cr. App.), 142 Southwestern 1183. 124 The Trial— Evidence. §43 (aaaa) Witness, in a prosecution for illegally selling liquor, stating that he was convicted for selling liquor of same kind. Where the issue was, whether the liquor sold in local option territory was intoxicating, and the person who had purchased liquor from accused testified that he had been convicted for selling liquor of the same kind, and the court, on objection, excluded the question and an- swer, and directed the jury to wholly disregard the same, the admission was not prejudicial to accused. Sanda- loski V. State (Tex. Cr. App.), 143 Southwestern 151. (bbbb) In a prosecution for homicide permitting a witness to testify that father of accused laughed at the killing. Where a witness for the state had testified that, after the homicide, the accused, his father and the witness were talking together, and the accused was telling the witness how the homicide occurred, it will not require a new trial that the court permitted the witness to fur- ther state that the father of the accused, in the presence of the latter, laughed, and said that the accused had shot the whole top of decedent's head ofif. Woods v. State (Ga. Sup.), 72 Southeastern 908. {cccc) Ruling that evidence tending to show adultery must be confined to facts within four days of homicide. In a trial for uxoricide, any error in a ruling that evi- dence tending to show the commission of adultery by decedent must be confined to facts occurring within four days before the homicide, was harmless, where it ap- peared that accused had been informed of his wife's il- licit relations long before, and that on that information 125 §43 Errors in Criminal Proceedings. he had brought a libel for divorce. State v. Albanes (Me. Sup.), 83 Atlantic 548. (dddd) hi a trial for killing a fellow convict, permitting district attorney to ask warden whether decedent was a "busybody." In a trial for murdering a fellow convict, it was not prejudicial error to permit the district attorney to ask the warden of the prison whether decedent had the repu- tation of being a "busybody," where defendant's wit- nesses testified that decedent was a "stool pigeon," and a "trouble maker." People v. Delhantie, 163 Cal. 461, 125 Pacific 1066. (eeee) Admitting evidence with too much detail. Admission of evidence with too much detail, held not ground for reversal. People v. Prantikos (Cal. Sup.), 127 Pacific 1029. (ffff) In a prosecution for rape, permitting district at- torney to exhibit to jury undergarments worn by prosecutrix when assaulted. In a prosecution for rape, it was not error prejudicial to accused for the district attorney to exhibit to the jury undergarments worn by prosecutrix when assaulted, though they were not in evidence, where she identified them in her testimony. People v. Mehuyama, 19 Cal. App. 290, 125 Pacific 924. {9999) I^ « *^^'fl^ for murder admitting evidence that decedent was an Anglo-Saxon. The admission in a trial for murder of evidence as to whether deceased was an Anglo-Saxon was erroneous, 126 The Trial— Evidence. §43 ■but was a harmless error. People v. Lopez (Cal. App.), 131 Pacific 104. (hhhh) On a trial for adultery, admission of evidence that wagons carried groceries to the house where it was claimed accused and the woman lived to- gether. The admission of evidence, on a trial for adultery, that delivery w^agons carried groceries to the house where it was claimed accused and a woman lived together as man and wife was competent. Brown v. State (Tex. Cr. App.), 154 Southwestern 567. (mY) Admission of statement of witness that he had testi- fied before the grand jury on the same matter. Admission of a mere statement of witness that he had testified before the grand jury on the same matter as at the trial was harmless. People v. Katz, 209 N. Y. 311, 103 Northeastern 305, affirming judgment, 139 N. Y. Sup- plement 137, 154 App. Div. 44. (////) I'^ ^ prosecution for arson, admitting evidence of contents of building burned. In a prosecution for the burning of a barn, evidence of the contents of the building, consisting of a quantity of hay and corn, and eleven horses, was not prejudicial, as calculated to arouse passion on the part of the jury, es- pecially where the jury fixed the punishment at the min- imum penalty. Anderson v. State (Tex. Cr. App.), 159 Southwestern 847. (kkkk) Admitting evidence that three weeks later home of witness was again burglarized. There was no error in admitting evidence that three 127 § 44 Errors in Criminal Proceedings. weeks subsequent to the burglary charged, the home of the witness was again burglarized, and the balance of a set of silver stolen, where other evidence to the same effect was admitted without objection. State v. Miller (Wash. Sup.), 138 Pacific 896. (////) In prosecution for obtaining campaign contributions from gambler, evidence that protection was promised therefor. In a prosecution for obtaining campaign contributions from a gambler on promises of the then inayor, for whose campaign fund the contributions were used, that he would give protection for the contributions received from the keepers of disorderly houses, while improperly admitted, is harmless, where promise of protection was denied. State v. Shea (Wash. Sup.), 139 Pacific 203. Sec. 44. Evidence excluded and excluded evidence afterwards admitted. (a) In assault prosecution excluding words preceding not heard by defendant. On an appeal from a conviction of aggravated assault, the exclusion of evidence of words preceding the assault, which were not heard by the defendant, and which con- stituted no inducement to the assault, is not ground for reversal. Sturdivant v. State, 59 Ark. 267. (b) The exclusion of relevant and material evidence. The exclusion of relevant or material evidence in a criminal case is not prejudicial, where its admission would have done him no good. Gill v. State, 38 Ark. 524. 128 The Trial— Evidence. §44 (c) Exclusion of admissible unpre judicial evidence. The exclusion of admissible evidence is not ground for reversal, where the reviewing court is satisfied that it did not operate to the prejudice of the complaining party. Ritzman v. People, 110 111. 362; Commonwealth v. Min Sing, 202 Mass. 121, 88 Northeastern 918. (d) Evidence improperly admitted afterwards ruled out. A judgment should not be reversed, in general, because of an inadvertent admission of improper evidence, where, as soon as the mistake was discovered, the evidence was ruled out. Simons v. People, 150 111. 66. {e) Improper exclusion when act clearly proved. The exclusion of evidence having some force to dis- prove a particular act is not error for which the court will reverse, where the act is clearly and convincingly proved. The testimony of the prosecuting witness as to the commission of the crime by the plaintiff in error is positive and unequivocal, and it is wholly uncontradicted by direct testimony. Sutton v. People, 145 111. 279. (/) Accused denied right to testify to his intent. It is not ground of error that the accused was improp- erly denied the right to testify to his intent, where, upon the evidence, the jury could not well have found other- wise than as they did, and the act complained of was therefore without prejudice to the defendant. Wohlford V. People, 45 111. App. 188. In a prosecution for a con- spiracy to defraud the United States. Crawford v. United States, 30 App. D. C. 1. 129 Errors — 9. § 44 Errors in Criminal Proceedings. (^r) Withdrawing improper evidence and jury directed to disregard it. Error in the admission of evidence is cured by with- drawing such evidence, and directing the jury to disre- gard it. Joy V. State, 14 Ind. 139; Madden v. State, 148 Ind. 183, 43 Northeastern 220; Commonwealth v. Ham, 150 Mass. 122, 22 Northeastern 704; Dimmick v. United States, 135 Federal 257, 70 C. C. A. 141; Gruoalary v. United States, 145 Federal 81, 76 C. C. A. 51 ; Tubbs v. United States, 105 Federal 59, 44 C. C. A. 357. (/i) Improper testimony withdrawn in a prosecution for rape. On a prosecution for rape, where the testimony of witnesses relating to conversations with the prosecuting witness, soon after the alleged occurrence, was admitted, but afterwards struck out by the court, and later with- drawn from the jury, any error in the admission of the testimony was not cause for reversal. Cross v. State, 132 Ind. 65, 31 Northeastern 473. (j) Refusal to permit physician to tell if he treated case for arsenical poisoning. Where, in a prosecution for homicide, the state claimed that the deceased came to his death by arsenical poison- ing, and his attending physician testified, after describing the symptoms which developed from time to time, that he at first entertained some doubt before he became con- vinced that the case was one of arsenical poisoning, the court should have allowed the defendant to ask the wit- ness whether he treated the case as one of arsenical poisoning, but the refusal to do so was not reversible error, in the light of other expert testimony. Epps v. State, 102 Ind. 539, 1 Northeastern 491. 130 The Trial— Evidence, §44 (/) Exclusion of evidence unavailable as error when similar offered by opponent also excluded. A party can not make available for the reversal of a judgment the exclusion of evidence, where, upon his ob- jection, Hke evidence was excluded when offered by the other party. Dinwiddie v. State, 103 Ind. 101, 2 North- eastern 290. (k) When exclusion of letter was not error. On indictment for assault, with intent to kill, the ex- clusion of a letter by the prosecutrix to defendant, of- fered to show the intimate relations between them, where that fact was fully proven by other evidence, in- volved no error for which the judgment should be re- versed. Wagner v. State, 116 Ind. 181, 18 Northeastern 833. (/) Hypothetical question and answer ruled out. Error of the court in permitting the state to propound a hypothetical question to defendant's character witness was not ground for reversal, where the court subse- quently struck out the questions and the answers elicited thereto, and admonished the jury not to consider the same. Duncan v. State, 171 Ind. 444, 86 Northeastern 641. (m) Exclusion of immaterial corroborative testimony. Where the defendant testified in his own behalf to a certain fact, and his statement was unquestioned; held, that evidence offered to corroborate his statement was immaterial, and its exclusion without prejudice. State v. Johnson, 72 Iowa 395 ; State v. Marten, 59 Kans. 338, 52 Pacific 890. 131 § 44 Errors in Criminal Proceedings. (w) Excluding evidence affecting the credibility of a witness. Where a witness gave no material testimony deroga- tory to excepting defendants, the exclusion of competent evidence adversely affecting the witness's credibility was not prejudicial. Commonwealth v. Minsing, 202 Mass. 121, 88 Northeastern 918. Excluding record of convic- tion of a witness. People v. Zimmerman (Cal. App.), 104 Pacific 590. (o) Refusal to permit accused to make unsworn statement to the jury. Error in refusing to permit the accused to make an unsworn statement to the jury is waived where he after- wards testifies on his own behalf. People v. Reilly, 53 Mich. 260, 18 Northwestern 849. (/») Excluding question as to the exact words of a con- versation. Where a witness stated that he did not recollect what was said in a certain conversation, but gave its substance, and it was evident he stated it as fully as he could, error in excluding a question as to the exact words given was harmless. People v. Milliard, 119 Mich. 24, 77 North- western 306, 5 D. L. N. 687. (g) Refusal to permit testimony as to compromising case. Where defendant testified that he never authorized anyone to settle a prosecution for rape for him, and that he wrote to S not to settle the same, he was not preju- diced by the court's refusal to permit S to testify that he had no authority to settle the case for defendant. Peo- ple V. Rich, 133 Mich. 14, 94 Northwestern 375, 10 D. L. N. 87. 132 The Trial— Evidence. §44 (r) Refusal to permit proof of restitution by prosecutor's teller. Where, in a prosecution for larceny, the court subse- quently permitted evidence of restitution to be intro- duced, defendant was not prejudiced by the court's re- fusal to permit him to establish such restitution by pros- ecutor's teller on cross-examination. People v. Hutch- ings, 137 Mich. 527, 100 Northwestern 753, 11 D. L. N. 367. (s) Excluding testimony of animosity between accused and witness. The exclusion of testimony of animosity between ac- cused and an adverse witness was not prejudicial when that was shown fully by other witnesses. State v. Nieu- haus, 217 Mo. 332, 117 Southwestern 73. (t) Statements elsewhere testified excluded in murder trial. The exclusion of evidence ofifered by a defendant in a murder trial of statements by defendant that deceased struck him and then shot him, and statements of de- ceased to the same effect, is not prejudicial, when other witnesses for defendant have testified to the same state- ments. State v. Pugh, 16 Mont. 345, 40 Pacific 861. {ii) Immaterial prejudicial testimony excluded from jury. If a witness for the prosecution in answer to a proper question give immaterial testimony prejudicial to the prisoner, which, on objection, is promptly excluded from the consideration of the jury, it is not a ground for re- versing the judgment. St. Louis v. State, 8 Neb. 405. 133 §44 Errors in Criminal Proceedings. (z/) Refusal of evidence in defense for tampering with electric light meters. On the trial of an indictment under act March 22, 1899 (P. L. p. 210, ch. 85), charging defendant with unlaw- fully tampering with the meter of an electric light com- pany, preventing it from recording or measuring the full amount of the current supplied to him, fixing the date of the offense as September 3, 1902; it was satisfactorily proven that on the day named the meter was found tam- pered with by inserting a pin between the disc and the magnets, so that the disc did not rotate and cause the currents to be recorded or measured, as it was its office to do; and the only question for the jury was, as to whether the defendant had himself tampered with the meter; and he offered to prove the amounts charged to him during the previous years, to show the absence of any discrepancy in the amount charged for the month during which the tampering occurred, and to affect the credibility of the witnesses for the state, which offer was overruled. Held, that the evidence, if relevant, bore so remotely on the issues involved that its rejection was no ground for reversal. State v. Block (N. J. Err. & App.), 59 Atlantic 1118, affirming 57 Atlantic 391. (w) Producing piece of spouting before it was offered in evidence. In a prosecution for assault, during the examination of the prosecuting witness, the state's attorney produced a piece of eaves spout, and asked the witness whether, in going around to the front of the house, as she had testi- fied she did, she saw accused do anything to the spout. The question was excluded. Held, that the production of the spout before the jury, before it was offered in 134 The Trial— Evidence. §44 evidence, was harmless. State v. Roby, 83 Vt. 121, 74 Atlantic 638. (;r) In a prosecution for forgery, refusal to permit respondent to exhibit note to jury. Refusal of the court, in a prosecution for forgery, to permit respondent's counsel to exhibit the note to the jury during the examination of a particular witness was harmless, where defendant had ample opportunity to pre- sent the note to the jury while other evidence was being introduced, and during the arguments. State v. Dono- van, 75 Vt. 308, 55 Atlantic 611. (y) Refusal to permit continuance of cross-examination. Remarks made by the trial judge to counsel for de- fendant in a criminal case, and his refusal to permit coun- sel to continue the cross-examination of a witness; held, while error, to have been without prejudice, where the same witness was again on the stand, and there was a further opportunity for cross-examination. Cina v. Uni- ted States, 191 Federal 718, 112 C. C. A. 308. {z) Exclusion of testimony to show Chinese person ar- rested for being wrongfidly in the United States, was mentally deficient. The exclusion of testimony offered to show that a Chinese person arrested for being in the United States was mentally deficient. Held, not prejudicial to defend- ant, even if error, where he was not sworn as a witness, and a copy of his examination when arrested, offered in evidence, was not objected to by his counsel on that ground. Gang Noon Wood v. United States, 121 Federal 830, 112 C. C. A. 344. 135 § 44 Errors in Criminal Proceedings. (aa) Exclusion of testimony that certain corporations were not sound financially. Where, on a prosecution under Penal Code, sec. 435, imposing a penalty for knowingly circulating any false statement to affect the market price of the public funds, or the stocks of a corporation, it is shown that defend- ants had circulated false statements that the corporation was to go into the hands of a receiver, it was not re- versible error to exclude testimony showing that some independent corporations controlled by such company were not in sound financial condition. People v. Goslin, 7Z N. Y. Supplement 520, 67 App. Div. 16, 16 N. Y. Cr. Rep. 255, affirmed 171 N. Y. 627, 63 Northeastern 1120. {bb) Exclusion of family Bible for insufficiency of proof. On a prosecution for rape a family Bible was admitted to show the age of prosecutrix, but not being sufficiently identified as the family Bible of her parents, the court excluded it, instructing the jury not to regard it. No issue was made as to the age of the prosecutrix, other testimony that she was under fifteen years of age not being controverted. Held, that the action of the court with reference to the Bible was not cause for reversal. Robbins v. State, 47 Tex. Cr. Rep. 312, 83 S. W. 690. {cc) Excluding evidence when verdict in accordance there- with. Error in the exclusion of evidence is harmless, when the verdict indicates that the jury found as true the facts which such evidence would have tended to prove. Mer- ritt V. State, 40 Tex. Cr. Rep. 359, 50 S. W. 384. 136 The Trial— Evidence. §44 (dd) Excluding testimony of witness in support of the reputation of the accused for truth and veracity. Where, in a criminal case, there was little material dis- pute between accused's version of the vital facts in the case and the state's case, the error, if any, in excluding the testimony of a witness in support of the reputation of the accused for truth and veracity was not prejudicial. Spencer v. State (Wis. Sup.), 112 Northwestern 462. Excluding evidence against reputation of accused. State V. Gibson, 83 S. C. 34, 64 Southeastern 607; rehearing denied, 64 Southeastern 916. (ee) Refusal to permit defendant to testify in rebuttal of the testimony of a state's witness. In a criminal trial no error was committed in refusing to permit defendant to testify in rebuttal to the testi- mony of a state's witness, where it appears that such excluded evidence instead of rebutting the testimony of the state, talHed with and corroborated it. Davis v. State, 54 Fla. 34, 44 Southern 757. {ff) Rejecting evidence not reoffered after the court changed its rulings. Where, on a trial for criminal libel, based on a charge that an insurance company discriminated in its rates, the evidence of the state showed that the discrimination was not based on the greater or less risk as to particular properties, but the higher rate was on town property and the lower on farm property, and the court, after re- jecting evidence justifying the charge of discrimination, admitted other evidence fully setting forth accused's claim of error in rejecting the evidence, not reoflfered after the court changed its ruling, was not prejudicial to accused. State v. WilHams (Kans. Sup.), 94 Pacific 160. 137 § 44 Errors in Criminal Proceedings. {gg) Refusal to permit witness who testified that the repu- tation of another witness was bad, to be asked if he would believe him under oath. Where the evidence showed conclusively that the rep- utation of a certain witness was bad in the neighborhood where he resided, error in not permitting the witnesses who testified that his reputation in such respects was bad, to be asked if they would believe him under oath, was harmless. People v. Ryder, 151 Mich. 187, 114 Northwestern 1020, 14 D. L. N. 612. {hh) Refusal to inform a witness for the state that he need not answer where answer would criminate him. Because the court refused defendant's request to notify a witness for the state that he need not answer questions where the answers would criminate him is not reversible error. Moore v. State, 130 Ga. 322, 60 Southeastern 544. {ii) Where one witness testified confession was freely made, refusal of preliminary examination of second by accused's counsel. A witness called to prove an alleged confession testi- fied full on direct and cross-examination, that the confes- sion was freely made, after due warning, and that he was not induced by any improper cause. A second witness called to prove the same confession corroborated the first witness, and his cross-examination did not develop any ground for excluding the confession. Held, that the re- fusal to permit counsel for accused a preliminary ex- amination of the second witness was not prejudicial. People V. Breach, 193 N. Y. 46, 85 Northeastern 809. 138 The Trial— Evidence. §44 (//) Exclusion of testimony that impeached witness had been pardoned. The exclusion of testimony that a witness for accused impeached by proof of his conviction of a felony had been pardoned by the governor is not prejudicial to ac- cused, in the absence of proof of what offense the wit- ness was convicted, and the ground of the pardon. Par- son V. Commonwealth, 33 Ky. L. R. 1051, 12 Southwest- ern 617. (kk) Excluding evidence of why accused did not visit the Chinese quarters on day following the homicide. Accused having just previously stated that before meeting the policeman a Chinaman had apprised him of the killing of "Ring Kong Tong" on the preceding day, by a member of the Tong, of which accused was a mem- ber, and that the "Ring Kong Tongs" were after all the members of the accused Tong, thus putting accused on his guard, the testimony being received to explain why accused did not visit the Chinese quarters on the day fol- lowing the homicide, the exclusion of the question was not prejudicial. People v. Mar Gin Suie (Cal. App.), 103 Pacific 951. (//) Excluding evidence of ability of one-armed man to wield a club effectively. Where, in a homicide case, evidence was admitted showing that a one-armed person was a stout, athletic man, and that he struck defendant four to six blows with a club ; it sufficiently appeared that he was able to handle a club effectively, error, if any, in excluding testimony of another witness that the person was capable of using such a club effectively was not prejudicial. Duque v. State, 56 Tex. Cr. Rep. 214, 119 Southwestern 687. 139 §44 Errors in Criminal Proceedings. (mm) Refusal to allow sheriff to answer question that arrest was the only way to stop the sale of "frosty." In a prosecution for violation of the local option law, the prosecuting witness testified that he made a contract with the sheriff by which he was to have $25 for the first conviction of violating the local option law, and $10 for each succeeding case, that he had bought "frosty" sev- eral times from accused; and the sheriff testified that he had told accused that he must stop selling "frosty" or it would cause him trouble, and that "frosty" was an in- toxicant, and he would have to quit selling it, and that he had offered the prosecuting witness $25 for the first conviction, and $10 for each succeeding case against ac- cused; and that the prosecuting witness reported the facts, and the sheriff filed seven cases against accused; and accused admitted that the sheriff had told him that he would have to quit selling "frosty." Held, that the refusal to allow the sheriff to answer, on cross-examina- tion, whether he stated in a speech before the sheriffs' convention, that the only way to stop the sale of "frosty" in local option counties was to arrest the parties engaged in the business and put them in jail, whether they were guilty or not guilty, was harmless error. Joyce v. State, 56 Tex. Cr. Rep. 333, 120 Southwestern 453. (wm) Refusal to allow cross-examination as to quarrel with accused prior to the commission of the crime. Accused is not prejudiced by the refusal of the court to allow a prosecuting witness to be cross-examined as to a quarrel with accused prior to the date of the com- mission of the crime, where there wa? no dispute as to 140 The Trial— Evidence. §44 the facts concerning which the witness had testified. State V. Frazer (S. D. Sup.), 121 Northwestern 790. (oo) Exclusion of witness's oral testimony. Where the officer who arrested accused was offered by him to contradict the testimony of the state's witness, had no independent recollection of any material evidence, aside from his written notes of his testimony at the pre- liminary trial, which were introduced for accused, ac- cused was not harmed by the exclusion of witness's oral testimony. State v. Hooper (N. C. Sup.), 65 Southeast- ern 613. (pp) Exclusion of letter written by decedent to daughter of accused. In a prosecution for murder alleged to have been com- mitted through a conspiracy between the accused and his son and son-in-law, who fired the fatal shots, the exclu- sion of a letter written by decedent to accused's daugh- ter, offered to show improper relations existing between decedent and the daughter, and the knowledge of the lat- ter, as a motive on the part of the son and son-in-law to do the killing, unknown to accused, to corroborate the theory of the defense that there was no conspiracy to do the killing, so far as the accused was concerned, was not prejudicial, where there was no proof of improper rela- tions in the letter. Fowler v. State (Miss. Sup.), 49 Southern 625. (qq) Failure to make preliminary examination of child too young to understand the nature of an oath. Though the court ought to have made a preliminary examination of the child, because too young to under- stand the nature of an oath to test her competency; yet 141 §44 Errors in Criminal Proceedings. a failure to do so was not reversible error, where the examination was, in fact, made by the attorneys on both sides, in the presence of the jury, and the court was sat- isfied therefrom that prima facie competency was shown. Webb V. State, 7 Ga. App. 35, 66 Southeastern 27. (rr) Failure to require witnesses to answer questions "yes" or "no." There being no complaint that the answers of witness, taken as a whole, were not explicit, and that they did not fully meet the questions propounded to him, any error in not requiring him to answer "yes" or "no" was harmless. State v. Rodgers, 40 Mont. 248, 106 Pacific 3. (ss) Failure to introduce transcript showing change of venue. Where, after a change of venue, counsel for the state asked the court if it was necessary, in order to show jurisdiction that they should offer the transcript, and the court stated that it was not, but that it«would take judi- cial notice of that, and the transcript was not exhibited or read to the jury, and no reference made as to who directed the matter of transfer, and it did not appear that the jury had any information from which they could have concluded that accused sought the change of venue, ac- cused was not prejudiced. Goode v. State (Tex. Cr. App.), 125 Southwestern 597. {tt) Refusal to permit accused's counsel to ask the ac- complice, testifying for the state, if he expected to he prosecuted. Error, if any, in refusing to permit accused's counsel to ask the accused's accompHce, testifying for the prose- 142 The Trial— Evidence. §44 cution, whether he expected to be prosecuted, where he immediately after testified that he did not know whether he expected to be taken care of or not for testifying, is cured by his subsequent testimony. People v. Fisher, 120 N. Y. Supplement 659, 136 App. Div. 57. (uii) Refusal to permit mother to testify to alleged ad- mission of guilt by her son in another's presence. On a criminal trial, a witness testified that defendant had admitted his guilt to his mother, in the witness's presence, in a conversation between them in the sheriff's office, and defendant called his mother as a witness, but she was not permitted to give her version of the conver- sation. Thereafter she said that she had a conversation with defendant, and that it was had out in the hall, and not in the office, error in refusing to allow her to testify to the conversation in the office was harmless. State v. West (S. D. Sup.), 124 Northwestern 751. (vv) In a prosecution for rape, excluding testimony as to reputation of prosecutrix. Any error in the exclusion of testimony as to the rep- utation of the prosecutrix, in a rape case, was not preju- dicial, where prosecutrix was unquestionably under the age of consent, and accused afterwards had the oppor- tunity to introduce the same evidence. Zachary v. State, 57 Tex. Cr. Rep. 179, 122 Southwestern 263. (ww) Failure of accused to testify on his own behalf. The error, if any, committed by the court of first in- stance when determining the guilt or innocence of ac- cused, in considering the latter's failure to testify in his own behalf is not available on a writ of error from the 143 § 44 Errors in Criminal Proceedings. Federal Supreme Court to the Supreme Court of the Philippine Islands, where the latter court, in denying the motion for a new trial after its decision reducing the sen- tence on the accused's appeal, and stated that such trial court did take the accused's failure to testify into con- sideration. Pendleton v. United States, 216 U. S. 305. (xx) Refusal to permit defendant to read to the jury his affidavit that he did not execute the check alleged to have been forged. Notwithstanding Code Criminal Procedure 1895, art. 794, providing that it is competent to give evidence of handwriting by comparison, but proof by comparison only shall not be sufificient to establish the handwriting of a witness who denies his signature under oath, where no proof of handwriting is offered in a prosecution for forgery, it was not, if error, prejudicial to refuse defend- ant's offer to read to the jury, after his plea of not guilty, a writing sworn to by him and filed before trial, to the effect that he did not execute or sign the check alleged to have been forged. Reeseman v. State (Tex. Cr. App.), 128 Southwestern 1126. {yy) Exclusion of certain letters where tabulation of con- tents was received. The exclusion of certain original letters offered in evi- dence by the defendant in a criminal case held not preju- dicial, where a tabulation of the contents of such letters, made by defendant, was received in evidence, the cor- rectness of which was not disputed, and which as fully established the fact for which the letters were competent as would the letters themselves. Glenn v. United States, 177 Federal 679, 101 C. C. A. 305. 144 The Trial— Evidence. §44 (sz) Excluding question calling for a conclusion, whether voices heard sounded to accused as coming from drunken men. Where sufficient evidence was admitted to enable the jury to form a correct conclusion as to whether certain persons in a wagon were drinking or drunk, and accused testified, without objection, that in his judgment the men were drinking, any error in excluding a question to him as calling for a conclusion, whether voices of those in the wagon which accused heard appeared or sounded to him as if coming from drunken men, could not have prejudiced him. May v. State (Ala. Sup.), 52 Southern 602. (aaa) In a prosecution for trespass, exclusion of evidence as to custom of tenants working the land. Where, in a prosecution for trespass after warning, defendant did not attempt to justify, but denied going on the land after warning, he was not prejudiced by the exclusion of evidence as to the custom of the owner to let the tenants work their land during succeeding years. Arrington v. State (Ala. Sup.), 52 Southern 928. (bbb) In homicide case, exclusion of evidence to show apprehension by accused of violence from de- ceased. Where, in a homicide case, a ground of error to the exclusion of evidence, is that the evidence was relevant to show apprehension on the part of the defendant of violence from deceased, any error in excluding the evi- dence is harmless, other and stronger evidence showing that fact being admitted without objection. State v. Springfield, 86 S. C. 318, 68 Southeastern 563. 145 Errors— 10. §44 Errors in Criminal Proceedings. (ccc) On a trial for seduction, refusal to permit accused to testify to entire conversation in rebuttal. Where, on a trial for seduction, .the state proved by a witness that accused had stated that he had no fears about the seduction, but that he was afraid of having trouble with a brother of prosecutrix, and accused of- fered to testify that he told the witness he did not leave home because he was guilty, but to avoid trouble with prosecutrix's brother, accused could not complain of the refusal of the court to permit him to testify to the entire conversation with the witness. Carter v. State (Tex. Cr. App.), 127 Southwestern 215. (ddd) Where there was no dispute as to the crime, re- fusal to permit a witness to state the precise time it occurred. Where accused did not dispute that he shot and killed deceased on the day mentioned, so that the hour of the day was not material, he was not prejudiced by the court's refusal to permit a witness, who had testified that he had consulted the clock just before the shooting, and it was then ten minutes past eleven o'clock, to answer where the hands of the clock were pointing at that time. Grain v. State (Ala. Sup.), 52 Southern 31; Graves v. State (Ala. Sup.), id. 34. {eee) Defendant not permitted to show he had used due diligence to secure a witness, so as to admit his preliminary examination. Error in refusing to permit defendant to show that he had used due diligence to obtain a witness, so as to allow the admission of his testimony taken on the preliminary examination, is not ground for reversal, where the ad- 146 The Trial— Evidence. §44 mitted facts show that such diligence had not been used. People V. Johnson (Cal. App.), 110 Pacific 965. (///) Exclusion of testimony whether witness observed anything peculiar and unnatural with reference to accused. Where accused claimed he was insanely in love with the prosecutrix at the time he committed the alleged assault on her, with intent to murder, he was not preju- diced by the exclusion of testimony as to whether wit- ness observed anything peculiar and unnatural with ref- erence to accused, the witness having afterwards testi- fied that from what he noticed of defendant he believed he was irrational and insane relating accused's conduct and statements forming the basis of his belief. People V. Vaughn (Cal. App.), Ill Pacific 620. (ggg) Exclusion of testimony that accused "was quiet" at a time when his conduct was a proper matter of inquiry. The exclusion of testimony that accused "was quiet," at a time when his conduct was a proper matter of in- quiry, was not reversible error, where the facts showing accused's conduct at that time were fully brought out in tiie evidence. Perdue v. State (Ga. Sup.), 69 South- eastern 184. {hhh) On a trial for maintaining a liquor nuisance, ex- clusion of circulars containing lists of alcoholic medical preparations. Where the state, in a trial for maintaining a Hquor nuisance, relied on payment by accused of a federal H- cense tax as prima facie evidence of guilt, within Re- 147 § 44 Errors in Criminal Proceedings. vised Statutes, c. 29, sec. 49, the admission of circulars received by him from the internal revenue ofificer con- taining lists of alcoholic medicinal preparations, for sale of which a special tax is imposed, being discretionary with the court, their exclusion was not prejudicial error, where the medicines listed in the circulars were those accused had in stock, and where the circulars were, at most, slightly indicative of his motive in paying a fed- eral tax. State v. Oustlette (Me. Sup.), 77 Atlantic 544. {iix) On a trial for murder, exclusion of written agree- ment between the defendant and the deceased. A written agreement between the defendant, on trial for murder, and the deceased, was excluded, but the tes- timony of the defendant thereafter given was held suffi- cient to inform the jury of the relation between himself and the deceased, and hence its exclusion was not preju- dicial error. State v. Byrd, 41 Mont. 585, 111 Pacific 407. (///) ^^ ^ prosecution for attempted rape, excluding evi- dence of general reputation of prosecutrix for chastity. Where, in a prosecution for assault, with intent ,to rape, all the evidence showed that the prosecutrix did not consent to the attempted act, and there was nothing to justify accused in believing that she would consent, any error in excluding evidence of the general reputation of the prosecutrix for chastity could not have changed the result of the trial, and hence was harmless to ac- cused. Ross V. State (Tex. Cr. App.), 132 Southwest- ern 793. 148 The Trial— Evidence. §44 (kkk) In a murder case, excluding question to physician that if decedent had remained at sanitarium he might have recovered. In a murder case, excluding question to physician, as an expert, whether, from the nature and character of the wounds, he did not consider, that, if decedent had re- mained at the sanitarium during the entire time of his illness, he would not have stood a better chance for his recovery, was not prejudicial where the bill of exceptions showed that the objection was that the question was hypothetical in form, and not predicated on anything which had been proved, and that the question first pro- pounded was changed by counsel for the defense, and in its changed form was answered by the witness, since no other inference can be drawn from the ruling, and state- ment in support thereof, than that the information sought was given by the expert. State v. Fletcher (La. Sup.), 53^ Southern 877. (Ill) Excluding from eindence photographs of defendant and his supposed accomplices. Where photographs of defendant and his supposed ac- complices are excluded by the court, it will not be pre- sumed that defendant was prejudiced thereby. Morrison V. State (Neb. Sup.), 130 Northwestern 293. (mmnt) Refusal to permit accused to prove a fact, neither good for him nor giving a meritorious exception. Refusal to permit accused to prove a fact that will do him no good nor give him a meritorious exception is not prejudicial. Wilson v. State (Ala. Sup.), 54 Southern 572. 149 § 44 Errors in Criminal Proceedings. (nnn) On a trial for bribery, refusal to permit witness to be asked whether he had detectives following de- fendant just before the trial. On the trial of an indictment for bribery, where a wit- ness who had been employed as a detective to investigate the conduct of the defendant, testifies as to a similar in- vestigation which he had made, it is not reversible error for the court to refuse to permit him to be asked whether he had detectives following the defendant immediately before the trial, and whether he had not claimed to have paid the defendant a sum of money for the purpose of influencing his conduct. Commonwealth v. Klein, 42 Pa. Sup. Ct. 66. (ooo) Excluding testimony of one accused of keeping disorderly house, that she had not asked nor encouraged anyone therein. It was not reversible error to exclude testimony of one accused of keeping a disorderly house, that she had not aided or encouraged anyone in conducting such a house, where she was permitted to testify to her connection with the premises and the purpose for which they were kept. Thompson v. State (Tex. Cr. App.), 134 South- western 350. (ppp) Refusing permission to accused to cross-examine his own witness. It was not prejudicial error to refuse to permit ac- cused to cross-examine his own witness, by asking a question which insinuated that witness had testified falsely, seeking information concerning the employment of a special prosecutor, and whether witness belonged to a certain society. People v. Wong Loung (Cal. Sup ) 114 Pacific 829. ISO The Trial— Evidence. §44 (qqq) Refusal to permit defendant to question state's wit- ness to affect his credibility. In a prosecution for embezzlement from an express company it was not reversible error for the court to re- fuse permission to defendant, on cross-examination, to ask the superintendent of the express company, for the purpose of affecting his credibility, whether he had not made an offer to abandon the prosecution if defendant's shortage was made good, where his evidence as to mate- rial facts was not controverted. Hampton v. State (Miss. Sup.), 54 Southern 722. {rrr) Excluding evidence corroborating uncontradicted testimony. The error in excluding evidence corroborating uncon- tradicted testimony is not reversible error. Cooper v. State (Tenn. Sup.), 138 Southwestern 826. {sss) Excluding evidence as to the effect of excessive drinking upon the human mind. The exclusion of evidence as to the effect of excessive drinking on the human mind as affecting motive or in- tent ; held, harmless error, where the witness and others subsequently testified fully as to the matters excluded. Blocher v. State (Ind. Sup.), 98 Northeastern 118. (ttt) Exclusion of question asked witness by accused. The Supreme Court will not reverse a conviction on account of the exclusion of a question asked a witness by accused, where the record does not show that the answer would have benefited accused. State v. Babbitt (Mo. Sup.), 146 Southwestern 799. 151 § 44 Errors in Criminal Proceedings. (uuu) Excluding testimony of accused that deceased "could have cut me if I had waited any longer to shoot him." On the issue of self-defense it is not prejudicial error to exclude from the testimony of accused, that deceased "could have cut me if I had waited any longer to shoot him," he having testified as to his belief of danger from decedent. Mayo v. State, 59 Southern 861. (vvv) Exclusion of question whether defendant was in the basement of the building burglarised at any time, and with whom. Defendant held not prejudiced by the exclusion of the question whether he was in the basement of the building burglarized at any time, and with whom. State v. O'Cal- laghan (Iowa Sup.), 138 Northwestern 402. (tvww) Exclusion of evidence as to an examination of defendant during the trial and finding him insane. The exclusion of evidence as to an examination of de- fendant during the trial, and finding him insane, is not prejudicial, where the testimony tended to show that the mental disorder of defendant at the time of the homicide was of a temporary nature. State v. Olsen, 88 Kans. 136, 127 Pacific 625. (xxx) On a trial for illegally selling liquor, exclusion of evidence as to time witness entered accused's place of business. On a trial for selling liquor on Sunday, exclusion of evidence of the state's witness as to the time when he and his companions entered accused's place of business; 152 The Trial— Evidence. §45 held, not erroneous, in view of the court's offer to permit accused to ask the witness questions as to the times he entered accused's place of business and as to his evidence on another trial in that respect. People v. Hoke, 136 N. Y. Supplement 235, 151 App. Div. 744, 27 N. Y. Cr. Rep. 483. (yyy) Refusal to require an exhibit to he marked for identification and retained in the court's posses- sion. Refusal of the court to require an exhibit to be marked for identification and retained in the court's possession, held harmless. State v. Allen, 23 Ida. 772, 131 Pacific 1112. {zzs') Where accused testified as to how killing occurred, exclusion of contradictory testimony. Where accused testified as to how the killing of de- cedent occurred, the error, if any, ■ in excluding contra- dictory testimony was not reversible. McKelvey v. State (Tex. Cr. App.), 155 Southwestern 932. Sec. 45. Interpreters. (o) Refusal to appoint an interpreter. The refusal to appoint an interpreter, when the defend- ant in a criminal case is testifying, is not prejudicially erroneous, where it does not appear from the answers made by the witness that there was any abuse of the discretionary power lodged in the trial court. Perovitch v. United States, 205 U. S. 86. 153 § 46 Errors in Criminal Proceedings. Sec. 46. Stenographers. '(o) Admission in evidence of transcript of stenographer's notes. On a trial for attempting to bribe jurors, it appeared that defendant and other jurors in the case were called into the trial judge's chambers, where he interviewed the jurors as to the charge of jury tampering. A ste- nographer was present, and took down the statements of the persons involved. The two jurors whom defendant attempted to bribe testified on the trial as to the state- ments made by defendant in the hearing before the judge. Thereafter the transcript of the stenographer's notes was admitted in evidence. Held, that the admission of the transcript, if erroneous, was harmless. State v. Wood- ward, 182 Mo. 391, 81 Southwestern 857. (&) Erroneous filing of oath by stenographer employed by grand jury. Under a statute requiring the stenographer employed by the grand jury to "file an oath faithfully to report and transcribe all the proceedings before the said grand jury, and to keep inviolate the secrecy required by law to be kept relative to such proceedings," fihng such oath with the secretary of the grand jury, if error, did not disqual- ify the stenographer, and was not prejudicial under stat- utes 1898, sec. 4659, providing that no indictment shall be deemed invalid, nor affect the trial thereof, by reason of defects which do not prejudice the defendant, and sec. 4706, providing that no proceedings in a criminal case shall be reversed for any error, when the person and the cause may be readily understood by the court. Niezo- rowsky v. State, 131 Wis. 166. Ill Northwestern 250. 154 The Trial— Evidence. §46 (c) Stenographer in grand jury room. Where a stenographer, while in the grand jury room, did nothing but take down the evidence, and it was not discussed or commented upon in his presence by any member of the grand jury, accused was not prejudiced thereby. Carter v. State (Miss. Sup.), 54 Southern 734. (d) Stenographer reporting his own testimony. Where a stenographer, appointed as reporter for the grand jury, testified before that body and reported his own testimony, the testimony having been correctly re- ported the accused was not prejudiced, even though it would have been better practice to have appointed an- other reporter to take the testimony. People v. Arnold (Cal. App.), 118 Pacific 729. (e) Refusal to permit defendant to use private stenog- rapher to take down testimony. The court refused an application made near the end of a long trial to permit the defendant to make use of a private stenographer to take down such portions of the evidence and proceedings as he might desire. No show- ing or claim is made that the official record subsequent to the application is incorrect, incomplete or inadequate to the defendant's need, or that he was embarrassed or hindered, or caused any discomfort in completing his de- fense, or in presenting his motion for a new trial, or in presenting his appeal. Held, that the error committed was without prejudice to defendant's substantial rights. State V. Keehn, 85 Kans. 765, 118 Pacific 851. 155 § 47 Errors in Criminal Proceedings. Sec. 47. Miscellaneous rulings. (a) Failure to require state to elect which locality it would adopt as the place of liquor nuisance. Where, on a trial for maintaining a liquor nuisance on January 1, and other dates, down to October 12, 1907, it appeared while the state was introducing its evidence that the headquarters of accused were moved in May, 1906, the refusal to then require the state to elect which locality it would claim as the alleged place of nuisance was not prejudicial to accused, on the court, at the close of the state's evidence, requiring such election, and no evidence having been received for the state which would not have been admissible on the question of intent, though the state had elected in the first instance. State V. Johns (Iowa Sup.), 118 Northwestern 295. (b) Question to witness cured by answer of statement made by accused constituting a part of the res gestae. The error, if any, in allowing question to witness, in a homicide case, with regard to any statetnent made by accused, or a codefendant, the night of the tragedy, was not prejudicial, where the witness replied by testifying to a statement made by accused, immediately on the kill- ing, constituting a part of the res gestae. Falkner v. State (Ala. Sup.), 44 Southern 409. Sec. 48. Technical errors. {a) Technical errors disregarded when right result is reached. Where a right result is reached technical errors will be disregarded. Sanderson v. State, 169 Ind. 301 ; Rog- 156 The Trial— Evidence. §49 ers V. United States, 10 Okla. 424, 63 Pacific 969, 11 Okla. 139; Hodge v. Territory, 12 Okla. 108, 69 Pacific 1077; Huntley v. Territory, 7 Okla. 60, 54 Pacific 314; People V. Lumsden, 125 N. Y. Supplement 1079, 141 App. Div. 158. (b) Failure to prove averment with technical exactness. A mere failure to prove with technical exactness an averment, not necessarily a want of the essence of the offense charged, does not, under the rules governing ap- peals in criminal cases, authorize a reversal of the case on appeal. Taylor v. State, 130 Ind. 66, 29 Northeastern 415. (c) Harmless error. Harmless error is a recognized principle of criminal jurisdiction. Rehearing, 103 Pacific 262, denied; Moody V. United v. United States (Okla. Cr. App.), 103 Pacific 1039. Sec. 49. Clerical errors. (a) Error of clerk in naming term of court. Where the record properly shows that the information was filed in open court during a term, the clerical error of misnaming the particular term at which it was filed in the caption of the information constitutes no ground for reversing a judgment of conviction thereon. Wil- liams V. State, 42 Fla. 205. (&) A conviction in the circuit court will not be reversed for clerical error in the transcript. A conviction in the circuit court will not be reversed because of a clerical error by the justice of the peace in 157 § 49 Errors in Criminal Proceedings. the transcript returned on appeal from a conviction in his court. Hunter v. State, 102 Ind. 428, 1 Northeastern 361. (c) Failure of clerk to record an indictment. The clerk's failure to record an indictment in the order book can not be made the ground of a motion to quash. Heath v. State, 101 Ind. 512. (d) Clerical errors on change of venue. Where, on a change of venue, the clerk omits to cer- tify the paper transmitted with the transcript is the in- dictment, the omission will not vitiate the appeal, where the original transcript shows a finding of the indictment, and contains a copy of the proceedings, and the record on appeal states that the indictment was received with the transcript. Holliday v. People, 4 Oilman (111. Sup.), 11. (e) Clerk filing, instead of recording, verdict before read to the jury. The filing of a verdict by the clerk, instead of record- ing it, before he reads it to the jury, will not invalidate it, when it is not claimed that the defendant was injured thereby, or that the verdict is not the one upon which judgment was pronounced. Such irregularity comes within the statute which provides, "Any departure from the form or mode prescribed by this act, with respect to any pleading or proceeding, nor the error or mistake therein shall render the same invalid, unless it have ac- tually prejudiced the defendant or tended to his preju- dice with respect to a substantial right." General Stat- utes 4469; State v. Depoister, 21 Nev. 158, 25 Pacific 1000. • 158 The Trial— Evidence. §49 (/) Irregularity of the clerk in selecting jurors. In a criminal case it was alleged that the county clerk was present when the body selected jurors for attend- ance on the district court, and recommended a large number of electors to be selected as jurors. It was not known that any of the persons whom the clerk recom- mended were among the twelve who tried accused, or were in the panel drawn from the box and in attendance on the court at the time of the trial. It was not claimed that the accused did not have an impartial jury. Held, that the irregularity, if any, arising from the conduct of the clerk, was not prejudicial to accused. State v. John- ny, 29 Nev. 203, 87 Pacific 3. (g) Blank left in writ of attachment. The fact that the last figure of the year was left blank in the teste to a vvrit of attachment "is not ground for reversal where the defect is supplied by the transcript. State V. Moran, 43 N. J. L. 49. (h) Failure to enter appointment of attorney general pro tern, upon the minutes of the court. The record does not show the appointment of an at- torney general pro tem. The indictment is signed by John Bullock, attorney general pro tem. Previous to the adoption of the code this would have been fatal. It is expressly provided by sec. 5222 of the code, where a per- son is presented or indicted for a criminal ofifense, and is arraigned before the court having jurisdiction of the mat- ter, pleads not guilty, and is tried upon the merits and is convicted, he shall not be entitled to a new trial or to an arrest of judgment for certain specified causes. Sub- section 8 of the section referred to embraces the errors 159 § 49 Errors in Criminal Proceedings. assigned, and provides that "because the indictnient was drawn by an attorney general pro tem. and the clerk omitted to enter his appointment on the minutes of the court, it shall be no cause of reversal." Moody v. State, 6 Coldwell (Tenn.), 299 (46 Tennessee). (j) Failure of clerk to include petition for removal in his transcript. The jurisdiction of the court to which the venue of a prosecution for homicide has been removed can not be first challenged in the motion for a new trial, on the ground of the failure of the clerk of the court from which the proceedings were removed to include the peti- tion for removal in his transcript as required by Mans- field's Digest, sec. 2204 (Ind. Ter. Ann. Stat. 1899, sec. 1547), as the omission of such petition can not be preju- dicial to defendant. Gardner v. United States, 5 Ind. Ter. 150, 82 Southwestern 704. (/) Failure of minutes to show that jury returned in charge of officer. The failure of the minutes to show that the jury re- turned into court in charge of their officer is not re- versible error. Robertson v. State, 4 Lea (72 Tenn.) 425. {k) Clerical error in omitting the word "days" in entering sentence. The sentence imposed by the justice being imprison- ment for thirty days, his entry of judgment of imprison- ment for a term of "thirty," omitting the word "days," is merely a clerical error which may be corrected by him in the absence of the defendant. In re Breckinridge, 34 Nev. 275, 118 Pacific 687, 32 Ann. Cas. 871. 160 The Trial— Evidence. §50 (/) Clerical error in failing to adjudge the defendant guilty of the offense for which he was tried and convicted. An entry of judgment reciting that on the verdict finding the defendant guilty and assessing a fine of $50, the court ordered and adjudged that the state, for the use of G county, have and recover of the defendant the sum of $50, the fine assessed by the jury, together with all costs, for which execution may issue, while objec- tionable for failure specifically to adjudge the defendant guilty of the offense for which he was tried, was, never- theless, not fatally defective, since it rested by necessary implication on a concurrent adjudication of guilt. John- son V. State, 172 Ala. 424, 55 Southern 226, 30 Ann. Cas. 296. Sec. 50. Irregularities. (a) Irregularities, inaccuracies in rulings, etc., not seriously regarded. Irregularities, inaccuracies in rulings, and even slight errors of judgment occurring in the progress of a trial, which have been cured by later rulings, or are without controlling influence on the main issue, should not be seriously regarded by a reviewing court. State v. Dick- erson, 77 O. S. 34; Wilson v. People, 94 111. 299; Lauder V. People, 104 III. 248. (b) Defects in forms of information, etc., immaterial. Defects in the form of the information, or in the man- ner in which the offense is charged can not be raised for the first time on error. Timely motion to quash should be made. Bartlett v. State, 28 O. S. 669. 161 Errors — 11. § 50 Errors in Criminal Proceedings. (c) Inaccuracy in the form of the judgment. A judgment will not be reversed merely because of the want of accuracy in form where it is substantially right. This is at most but an irregularity. People v. Steele, 7 111. App. 20. (d) Capital conviction unaffected by nonprejudicial error. A judgment of conviction in a capital case will not be reversed for error which the court can see worked no in- jury to the defendant. Dacey v. People, 116 111. 555. (e) Irregularities prior to indictment immaterial. Where the accused is fairly tried, and the conviction is warranted by the law and the evidence, the judgment can not be reversed on the ground of illegal steps taken on the part of the prosecution anterior to the finding of the indictment, and in no way afifecting the fairness of the trial. Blemer v. People, 76 111. 265. (/) Error unavailable when guilt clearly proved. Where guilt is clearly proved the court will not re- verse for errors for which they might reverse if guilt were doubtful. Burke v. People, 148 111. 70, 35 North- eastern 376. (g) Serious error necessary in a case of revolting homicide. Where, on a prosecution for homicide, the evidence fully sustains the verdict of guilty, the judgment should not be reversed except for some palpable error which could establish a dangerous precedent. Stout v. State, 90 Ind. 1. 162 The Trial— Evidence. § 50 (h) Entitling prosecution as brought by city instead of by the state. A prosecution before a justice of the peace for selling intoxicating liquors in a city, in violation of the city charter, was entitled in the name of the city as plaintifif instead of the state, as required by general statutes, Minn., c. 65, sec. 133. The complaint and warrant were for a misdemeanor, and the judgment was not in favor of the city as plaintifif, but simply found the defendant guilty, and imposed a fine as provided by law. Held, that the error was a mere irregularity, which could be disregarded, and did not affect the jurisdiction of the justice nor prejudice the defendant. State v. Grafifmul- ler, 26 Minn. 5, 46 Northwestern 445. (t) Informalities in making jury list disregarded. The departure from prescribed formalities in making up the jury list will not furnish ground for reversal, un- less it be shown that the losing party has been materially injured. State v. Reilly, 4 Mo. App. 392. (/) Placed on trial for a misdemeanor before plea to the indictment is entered. Where a defendant is put on trial for a misdemeanor, without a plea to the indictment having been entered, it is a mere technical error or irregularity which does not afifect any of his substantial rights, and afifords no ground for reversal of the judgment of conviction. Allym v. State, 21 Neb. 593, 33 Northwestern 212. (k) Failure to indorse the plea on the back of the indict- ment. The statute directing the entry of the prisoner's plea 163 § 50 Errors in Criminal Proceedings. on the back of the indictment is not mandatory, but di- rectory, and the failure to so enter it is not ground for a reversal of the judgment, when the plea is contained in another part of the record. Preuitt v. People, 5 Neb. 177. (I) Error in not enforcing a rule of practice. Where a defendant has had a full and fair trial on in- dictment for a felony, the appellate court will not re- verse the judgment and set aside the verdict rendered, for an error in not enforcing a rule of practice on the trial, where it clearly appears that the rights of the de- fendant could not have been prejudiced or afifected there- by. State V. Bickle, S3 W. Va. 597, 45 Southeastern 917. (m) Erroneously treating proceedings as a criminal action. A railroad company indicted for violation of Sand. & H. Digest, sec. 6196, in regard to ringing bells and sounding whistles, refused to plead, insisting that, as a criminal action was improper, the indictment should be treated as a complaint, and that defendant was not re- quired to plead until the third day of the term ; but the court ordered a plea of "not guilty" to be entered, and proceeded with the trial. A judgment was entered against the defendant, who filed a motion in arrest, which merely alleged in general terms that defendant had a meritorious defense, but did not show that a different judgment might have been rendered in a civil proceed- ing. Held, that the erroneous action of the court in treating the case as a criminal proceeding was not ground for reversal, no prejudice to defendant's substan- tial rights being shown. Railroad Co. v. State, 63 Ark. 134, 37 Southwestern 1047. 164 The Trial— Evidence. § 50 (m) Transcript on change of venue not certified under seal. Under Sand. & H. Digest, sec. 2438, providing that a judgment of conviction shall be reversed for prejudicial error only, a conviction will not be reversed because the transcript on a change of venue, and on which defendant was tried, was not certified under the seal of the court, objection not having been raised until after verdict. Lee V. State, 73 Ark. 148, 83 Southwestern 916. (o) In a prosecution for rape prosecutrix holding child while testifying. On a prosecution for statutory rape, the prosecutrix had her child with her while testifying, and the court refused to exclude it from the presence of the jury. Held that, in the absence of anything in the record showing that the child resembles defendant, its presence was no evidence against him, and therefore he was not preju- diced by the ruling. Plunkett v. State, 72 Ark. 409, 82 Southwestern 845. (/») Proceeding with the trial when accused was absent. Where accused was not in the courtroom when his case was called, but the court, after the state announced "ready for trial," remarked that nothing could be done without defendant, and thereupon defendant's attorney, after talking to all of the state's witnesses, announced he would be ready, provided the court would indulge him in the event his witnesses were not present when needed, whereupon the trial commenced, but the attorneys did not proceed to interrogate the jury until defendant ac- tually came into court,, there was no prejudicial error shown. Wooten v. State, 50 Tex. Cr. Rep. 151, 94 South- western 1060. 165 § 51 Errors in Criminal Proceedings. Sec. 51. Alleged misconduct of the court. (o) Calling the jury in the absence of the defendant. After the dinner recess the jury was called and an- swered to their names before the defendant was brought into court and during his absence. His absence being discovered, no further proceedings were had until the defendant was brought into court, when the jury were again called. Held, that the calling of the jury in the absence of the defendant furnishes no ground of reversal. McNish V. State, 47 Fla. 66. (6) Conversation on the case between prosecuting attorney and the trial judge. While trial judges should not permit private conver- sations with them, with reference to any question or issue arising in the trial of any criminal cause before them, by the prosecuting attorney or anyone else, yet when such conversation relates solely to a request for a temporary adjournment, it is not sufficient ground for reversal. Dickens v. State, 50 Fla. 17. (c) Unrepressible smile by trial judge. During the progress of the trial the defense asked that one Ananias Godwin be sworn and put under the rule, whereupon the judge smiled, and the defendant's counsel noted an exception to the smile, and Godwin was not made a witness, nor does it appear what it was expected to prove by him. Held, no error; that the smile was most natural, if not justifiable or excusable. Bellamy v. State, 56 Fla. 43. (d) Limitation of argument to thirty minutes to each side. A limitation of thirty minutes to either side in the ar- 166 The Trial— Evidence. §51 gument to the jury on a trial for robbery; held, no ground for reversal where the testimony was not com- plicated and the witnesses few, and no affirmative show- ing is made that such limitation of the argument was detrimental to the defendant. McDuffee v. State, 55 Fla. 125; WilHams v. Commonwealth, 82 Ky. 640, 6 Ky. L. R. 764. (e) Absence of the court during the argument to the jury. The temporary absence of the presiding judge from the bench, and from the courtroom, while the argument is in progress, leaving a member of the bar in his place, is an irregularity, but it is not fatal to the verdict, where he is at hand and may be called instantly to pass on any question that may arise. Murphy v. People, 19 111. App. 125; Hughes v. State (Tex. Cr. App.), 149 Southwestern 173. (/) Alleged abuse of legal discretion. The discretionary action of the trial court in remitting a part of the bail bond and rendering judgment for the balance, where the accused surrendered before judgment was entered against his bail, not showing that the dis- cretion was flagrantly abused, will not be reversed on appeal. Hall v. Commonwealth, 20 Ky. L. R. 90, 45 Southwestern 458. (g) Improper answer by court to question of juror. Where, on a prosecution for keeping open a saloon on a legal holiday, a juror asked the court if the barkeeper went into the saloon simply to fasten the door, and did not drink or sell drinks, the owner should be convicted, and the court answered, "Yes," the answer, if erroneous, was not ground for reversal, in the absence of evidence 167 § 51 Errors in Criminal Proceedings. in the record justifying the jury in finding that the bar- keeper entered merely for such purpose. People v. Kriessel, 136 Mich. 80, 98 Northwestern 850, 10 D. L. N. 972. (h) Court praising prosecuting attorney and criticising at- torney for accused. Though remarks of the trial court in the presence of the jury, whereby it complimented the prosecuting attor- ney and criticised the attorney for accused, should not have been made, they were not ground for reversal. State V. Sharp, 233 Mo. 269, 135 Southwestern 488. (/) Court stating to jury the result of previous trial. A statement by the court to the jury in a murder case, that this was a second trial, and that a conviction of murder in the third degree had been reversed, "for error committed in the first trial," will not be assumed preju- dicial, on the ground that it suggested that the former conviction was right, except for some formal error. Hoffman v. State, 97 Wis. 571, 72> Northwestern 51. (k) Absence of judge during trial, to walk sixty-eight feet to procure a hook. The mere absence of the judge during the progress of the trial, for a period long enough to enable him to walk a distance of sixty-eight feet from the courtroom to his chamber, in order to procure a book, which was not ob- jected to by accused at the trial, was not ground for re- versal of a conviction. Thomas v. State (Ala. Sup.), 43 Southern 371. (/) Court expressing an opinon as to the guilt of accused. Where the facts constituting a violation of B. & C. 168 The Trial— Evidence. §51 Comp., sec. 1907, providing that one who shall induce a voter to come into a precinct, with intent that he shall vote at an election at a place where he is not a resident, shall be punished, were not only established by the state, but conceded by accused, the misconduct of the trial judge, consisting of expressions of his opinion as to the guilt of the accused, was within sec. 1484, requiring the court, on appeal, to give judgment regardless of tech- nical errors, since under the express provisions of sec. 857, subsec. 1, the power of the jury to pass on the ef- fect of evidence is not arbitrary, but must be exercised with legal discretion. State v. Reed (Ore. Sup.), 97 Pacific 627. (w) Court ordering accused into custody and refusing bail. Even if the trial court improperly ordered accused into custody and refused him bail, though he was not on trial for a capital offense, accused was not prejudiced thereby in his defense. State v. Lance, 149 N. C. 551, 63 South- eastern 198. (n) Compelling counsel for accused to argue the cause at night. An order compelling counsel for accused to argue the cause at night, unless defendant clearly proves that ac- cused was thereby prejudiced, will not entitle him to a new trial. Kennison v. State, 83 Neb. 391, 119 North- western 768. (o) Court conducting examination as to admissibility of confession in the absence of the jury. Where accused, subsequent to the admission of his confession, testified before the jury as to the alleged con- 169 § 51 Errors in Criminal Proceedings. fession, and the influences prompting him to make it, and all the testimony, including accused's testimony on the subject, showed that the confession was properly admit- ted, the method of the presiding justice in conducting the examination in the absence of the jury, to determine the admissibility of the confession, was not prejudicial to accused. State v. Jacques (R. I. Sup.), 76 Atlantic 652. (p) Adjournment to meet at the place of the offense zvhere the session was resumed. In a criminal trial the court adjourned to meet at the place of the ofifense, where the session was resumed. No testimony was taken, and, after the view was completed, the trial was adjourned without returning to the court- house. Held, that the action was irregular but harmless error, since a view of the premises is no part of a trial. People V. Pisano, 127 N. Y. Supplement 204, 142 App. Div. 524. (q) Court stating that testimony was of a very light class, if witnesses talked with others and could not remember their names. The trial judge's inadvertent misconduct in stating that testimony was of a very Hght class, if witness talked with others and could not remember their names, was harmless error, where the judge admonished the jury not to consider statements not mentioned in the instructions. People V. Overacker, 15 Cal. App. 620, 115 Pacific 756. (r) Refusal to prevent additional counsel to assist the state. Though it was announced before the selection of the jury that counsel assisting the prosecution would not 170 The Trial— Evidence. §51 thereafter participate in the trial, the court qualified the jury as to relationship and connection with the firm of which such assisting counsel was a member and its mem- bers. It did not appear that defendant would have em- ployed his peremptory challenges otherwise, if he had known that such private counsel expected further to par- ticipate in the trial, nor that he would have challenged any member of the jury in the box when inform^ed that the assisting counsel would participate in the trial. Held, that there was no prejudicial error in the court's declin- ing to prevent such counsel to assist; the court having no right to forbid the entrance of properly engaged coun- sel in the trial at any stage of the proceedings. Jones V. State (Ala. Sup.), 57 Southern 31. (s) Court asking the jury how they stand. Though the practice of asking the jury, in a criminal case, how they stand, is not approved by a majority of the Court of Appeals, yet where the trial judge says nothing by way of intimation or expression of an opinion on the facts, or to induce the jury to make a verdict, the mere inquiry would be harmless, and especially where the evidence for the prosecution demanded the verdict of guilty. Flahive v. State (Ga. App.), 73 Southeastern 536. (t) Permitting prosecuting attorney to exceed his time for argument two minutes. Permitting prosecuting attorney to exceed his time for argument by two minutes ; held, not to require a re- versal in the absence of a showing of prejudice. Hamer v. State (Ark. Sup.), 150 Southwestern 142. 171 § 52 Errors in Criminal Proceedings. Sec. 52. Alleged misconduct of counsel. (a) Prosecuting attorney assuming a fact not proven. It was harmless error to permit the prosecuting attor- ney to propound to the witness a question which as- sumed that property found in the possession of the ac- cused was taken from the house he was accused of rob- bing. Gilbert v. Commonwealth, 21 Ky. L. R. 413, 51 Southwestern 590. (fc) Prosecuting -attorney relating conversation concerning prevalence of crime in Kentucky. It was harmless error to permit the commonwealth's attorney, in his closing argument to the jury, to repeat a conversation with a person from another state concern- ing the prevalence of crime in Kentucky, in which that person stated that in his county there had been but two homicides in fifty years; that both men were hung, and that this had the efifect to stamp out murder in his coun-. ty. Arnold v. Commonwealth, 21 Ky. L. R. 1566, 55 Southwestern 894. (c) Prosecuting attorney threatening to impeach accused if he testified in his own behalf. Remarks of the commonwealth's attorney in his open- ing statement to the jury that if the defendant should testify in his own behalf, it would be the privilege of the commonwealth to impeach him, by showing him to be unworthy of credit, are not prejudicial to defendant, where the commonwealth, although afforded an oppor- tunity to impeach him, failed to do so, as the jury, if they recalled the statements, probably concluded that the prosecuting attorney was mistaken as to his ability to impeach the defendant, and so they were not prejudicial. 172 The Trial— Evidence. §52 Strutton V. Commonwealth, 23 Ky. L. R. 307, 62 South- western 875. (d) Impassioned argument by prosecuting attorney. Convictions in criminal cases will not be reversed be- cause of the impassioned and strong arguments of the prosecuting officers, unless the court can clearly see that such arguments were unwarranted by the evidence and probably contributed to the result. People v. Peck, 147 Mich. 84, 110 Northwestern 495, 13 D. L. N. 1004. (e) Prosecuting attorney in his argument, quoting testi- mony of a witness. A remark by the prosecuting attorney, in his argument to the jury, that "L says that he did not get any liquor at that place. That is a fact ; I had it read over to me," is not prejudicial, as he quoted the evidence correctly, though he had no right to say he had seen the evidence, and that it was taken down in writing as he had quoted it, word for word. State v. Pollard, 155 Mo. App. 319, 136 Southwestern 735. (/) Prosecuting attorney conversing with jurors. While the district court might properly set aside the verdict of guilty on a mere showing that the prosecut- ing attorney, notwithstanding the instructions of the court forbidding conversations with jurors, had talked with one of them, yet where, upon a full disclosure of what was in fact stated, and that it had no relation what- ever to the subject-matter of the trial in progress, the district court overruled the motion for a new trial, such ruling will not be disturbed in the Supreme Court. Lind- say V. State, 46 Neb. 177, 64 Northwestern 716; Hoover V. State, 48 Neb. 184, 66 Northwestern 1117. 173 § 52 Errors in Criminal Proceedings. (g) To reverse misconduct must influence verdict. A conviction will not be reversed for alleged miscon- duct of counsel for the territory unless, from the record, the Supreme Court can see that the prosecuting ofificer was not only guilty of misconduct, but that such miscon- duct might have, in some degree, influenced the jury against the defendant. Wells v. Territory, 14 Okla. 436, 78 Pacific 124. (/i) Prosecuting attorney securing the admission of incom- petent testimony. The misconduct of a prosecuting attorney in securing the admission of incompetent testimony prejudicial to defendants, upon his statement that its materiality would later be shown, was rendered harmless, and the admis- sion of such evidence is not assignable as reversible error, where the court subsequently clearly stated to the jury that they should disregard it. Krause v. United States, 147 Federal 442, 78 C. C. A. 642. (t) District attorney reading from newspaper that slayer was an ex-convict. Where, in a prosecution for homicide, the district at- torney erroneously read the heading of a newspaper clip- ping, in the presence of the jury, to the effect that de- ceased's slayer was an ex-convict, but as the clipping went no farther than did the record proof of such fact, properly introduced in evidence, the error was harmless. Ball V. United States, 147 Federal 32, 78 C. C. A. 126. (/) District attorney attempting to show by another that a previous witness had mentioned a certain fact. Where it was sought to be shown on the cross-exami- nation of a witness for the prosecution that he had not 174 The Trial— Evidence. §52 mentioned certain facts to which he testified at the time of their occurrence, the action of the district attorney in attempting to show by a subsequent witness that such mention had been made by the previous witness, while the evidence may not have been admissible, was not such misconduct, as to be ground for reversing a judg- ment of conviction. Dimmick v. United States, 135 Federal 257, 70 C. C. A. 141. (k) On a trial for rape, district attorney reading testimony on preliminary examination before the magistrate. On trial of defendant for assault, with intent to com- mit rape, the fact that the district attorney was permit- ted to read certain questions and answers to two little girls, while on the witness stand, from their testimony given on the prehminary examination of the defendant before the magistrate, over defendant's objection that the prosecution was trying to impeach their own witnesses, was not prejudicial error, since the girls were the only material witnesses against him, and he would have been benefited by any weakening of their testimony. People V. Johnson, 131 Cal. 511, 63 Pacific 842. (/) Prosecuting attorney asking questions calling for in- competent answers. The fact that the prosecuting attorney asked questions calling for manifestly incompetent answers, does not alone estabHsh prejudicial error. State v. Greenland, 125 Iowa 141, 100 Northwestern 341. {m) Suggestion by prosecuting attorney that deceased was robbed by a cousin of accused. Suggestion by prosecuting attorney that deceased was robbed by a cousin of accused a short time before his 175 § 52 Errors in Criminal Proceedings. death did not constitute reversible error. Griffin v. State, 40 Tex. Cr. Rep. 312, 50 Southwestern 366. (n) Prosecuting attorney repeating question to accused on cross-examina tion. Repeatedly asking of defendant the question, on cross- examination, as to his whereabouts at a certain time after the assault, will not work a reversal, where the only objection is to the repetition, and prejudice to the de- fendant is not apparent. Winfrey v. State (Tex. Cr. App.), 57 Southwestern 810. (o) Prosecuting attorney asking improper questions. One accused of robbery testified he lodged at a certain house, and was asked by the state : "When did you pay your rent there.''" Objection was sustained. Held, that the mere asking of the question was not cause for re- versal. People V. Patterson, 124 Cal. 102, 56 Pacific 882 State V. Hayden, 131 Iowa 1, 107 Northwestern 929 State V. Robinson, 52 La. Ann. 541, 27 Southern 129 Reed v. State, 66 Neb. 184, 92 Northwestern 321; Pat- terson V. State, 41 Tex. Cr. Rep. 597, 56 Southwestern 59. (p) Prosecuting attorney asking prosecuting witness to remove his coat and exhibit his wound to the jury. In a prosecution for assault, with intent to murder, counsel for the state asked prosecutor to remove his clothes and exhibit his wound to the jury. Defendant's counsel objected on the ground that there was no con- troversy as to the location of the wound, and that the exhibition was calculated to prejudice the jury. The court was then informed that there was a rent in wit- ness' shirt through which the wound was visible. There- upon the court instructed the witness to put on his coat 176 The Trial— Evidence. §52 and take his chair, which he did. Held, that there was no error, even though the jury did see the wound. Simp- son V. State, 48 Tex. Cr. Rep. 328, 87 Southwestern 826. (q) Alleged improper conduct of prosecuting attorney. A judgment of conviction will not be reversed on ac- count of the improper remarks or conduct of the prose- cuting attorney, which could not have prejudicially influ- enced the jury. People v. Bodley, 131 Cal. 240, 63 Pacific 351; Moxie v. State, 114 Ga. 19, 39 Southeastern 944; State v. Rice, 7 Ida. 769, 66 Pacific 87; State v. Young, 114 La. 686, 38 Southern 517; State v. Nelson, 91 Minn. 143, 97 Northwestern 652; Wells v. Territory, 14 Okla. 436, 78 Pacific 124; State v. Morse, 35 Ore. 462, 57 Pacific 631; State v. Williams, 11 S. D. 64, 75 Northwestern 815; Newcomb v. State, 49 Tex. Cr. Rep. 550. 95 Southwestern 1048; State v. Mooney, 49 W. Va. 712, 39 Southeastern 657. (r) Prosecuting attorney attempting to discredit a witness. If the prosecuting attorney is guilty of misconduct in attempting to discredit a witness, and, from the circum- stances, the jury must see it, the error is harmless. Peo- ple V. Phelan, 123 Cal. 551, 56 Pacific 424. (s) In a prosecution for robbery, prosecuting attorney try- ing to show that defendant was living in adtdtcry. Where, on a trial for robbery, the prosecuting attorney on cross-examination of defendant, endeavored to show that he was living in adultery with the woman with whom he boarded, who testified in his behalf, and per- sisted, after the court ruled that such questions were improper, in asking questions, in different forms, but 177 Errors — 12. § 52 Errors in Criminal Proceedings. tending to elicit the same improper proof, such conduct does not require a reversal, unless defendant was preju- diced thereby. Schroeder v. People, 196 111. 211, 63 Northeastern 678. (t) In a prosecution for murder, prosecuting attorney telling jury where a juror on panel that acquitted an accused helped to lynch him. In a prosecution for murder, improper conduct of the state's counsel in telling the jury of a case where one juror on the panel that acquitted accused took part in lynching him, was not reversible error. State v. Russe, 127 Iowa 318, 100 Northwestern 536. (u) Prosecuting attorney reading part of record of former trial showing dismissal of others jointly indicted with defendant. Allowing the prosecuting attorney to read to the jury that part of the record of the former trial which stated the dismissal of the prosecution as against parties jointly indicted with defendant, was not prejudicial error. Hoff- man V. State, 97 Wis. 571, 73 Northwestern 51. (v) Prosecuting attorney misstating the evidence. A misstatement of the evidence by counsel is not re- versible error, where it appears that it was corrected, unless some injury appears. Yancy v. State, 48 Tex. Cr. Rep. 166, 87 Southwestern 693. In argument to jury. Williams v. State, 4 Okla. Crim. 523, 114 Pacific 1114. (w) Prosecuting attorney inferentially commenting on de- fendant's failure to testify. It was harmless error to permit the prosecuting attor- ney to inferentially comment on defendant's failure to 178 The Trial— Evidence. §52 testify as a witness, so that he might have informed the jury as to the truth of the alleged false testimony, which was peculiarly within his knowledge, there being no doubt from the evidence that the testimony was false. Cone V. Commonwealth, 20 Ky. L. R, 721, 47 South- western 436. (x) Counsel for state asking accused how long it had been since he was sentenced for a felony. The asking of the question of the accused, on cross- examination, as to how long it had been since he was sentenced for a felony, to which an objection was prompt- ly sustained, held not prejudicial. Clayton v. State (Tex. Cr. App.), 149 Southwestern 119. (y) Defendant's attorney fined for contempt for presenting affidavit of prejudice. The error of fining the defendant's attorney for con- tempt in presenting an affidavit of prejudice of the judge is harmless, where the trial took place a year afterward in another county on a change of venue. Hargis v. Com- monwealth (Ky. Ct. App.), 123 Southwestern 239. (c) In prosecution for misuse of dynamite, prosecuting at- torney using the words, "one of his dynamiting plots." In a prosecution for misuse of dynamite, in placing on the porch of an inhabited dwelling, the prosecutor's use of the words, "One of his dynamiting plots," in referring to accused, while objectionable, was not so erroneous as to be prejudicial. People v. Swaile, 12 Cal. App. 192, 107 Pacific 154. 179 § 52 Errors in Criminal Proceedings. (aa) County attorney asking defendant if, in habeas cor- pus proceedings, he had not been refused bail and remanded to jail. Misconduct of the county attorney in asking defendant if, on habeas corpus proceedings, he had not been re- fused bail and remanded to jail, does not require reversal, objection having been sustained and the question not answered. Lewis v. State (Tex. Cr. App.), 126 South- western Z7. (bb) State's attorney remarking, "What is A? They established a Monte Carlo out there," etc. In a larceny trial, where a witness testified that he met defendant after the latter left prosecutor's store, and with him went to a place called A, and finding no one there returned, and there was no evidence as to the character of A, remarks of the state's attorney, "Gentlemen of the jury, what is A? It is a bald place on the mountain out there that some speculators tried to make a city of; they established a Monte Carlo out there, and killed it deader than the d — 1;" if improper, was not prejudicial to defendant. James v. State (Ark. Sup.), 127 South- western 733. {cc) Question by state's attorney, "Isn't it a fact that this was a place where yon kept weapons to kill people?" Where, in a prosecution for murder, occurring in a building in which a Chinese society had its headquar- ters, defendant, a Chinaman, on cross-examination and on direct examination, referred to the "Tong Society," and trouble therein, which resulted in factions, a ques- tion of the state's attorney to defendant's witness, "Isn't 180 The Trial— Evidence. §52 it a fact that this is a place wherein are kept knives, pis- tols and guns to kill people with?" is not reversible error, though, on objection sustained, the state's attorney asked in diflferent terms the same question twice more, and it appears that there was a box containing the weap- ons on the table in the presence of the jury, but which was excluded in the absence of the jury. State v. Lem Woon (Ore. Sup.), 107 Pacific 974. (dd) State's attorney stating that he had a telegram that accused's witness had been convicted of embezzle- ment. The state's attorney's misconduct in argument, in stat- ing that he had a telegram showing that accused's wit- ness had been convicted of embezzlement, which the witness had denied, and in stating that it was not true that any previous charges had been made against ac- cused as a police officer, there being no evidence on that point was not reversible error. People v. McCann, 247 111. 130, 93 Northeastern 100. {ee) State's attorney incorrectly stating that the evidence showed accused's picture in the rogues' gallery. Accused's counsel stated that he excepted to the state- ments by the district attorney in argument that accused was a member of the rogues' gallery, whereupon the district attorney stated that the doctor identified the pic- ture of accused in the rogues' gallery, where accused's attorney stated that there was no such evidence in the case, which the district attorney well knew, and also knew that it was the grossest possible error to make such statement. The district attorney then stated that his best recollection was, "that in the cross-examination — and if I am mistaken, I stand subject to correction" — 181 § 52 Errors in Criminal Proceedings. when the court interrupted, that it had no recollection of the doctor making such statement, and that the jury- would disregard the district attorney's statement, where- upon he stated that he had no desire to prejudice ac- cused's rights, and that it was sufficient to say that the circumstances of identification were complete. The court, in the instructions, directed the jury to carefully distin- guish between facts testified to and statements by coun- sel in argument as to what facts were proved, and to only consider the facts testified to by witnesses. Held, that though the evidence did not show that accused's picture was in the rogues' gallery, the impropriety of the district attorney's statement to that effect was not re- versible error. People v. Davenport (Cal. App.), 120 Pacific 451; State v. Hayward (Iowa Sup.), 133 North- western 667. {ff) Epithets used by prosecuting attorney toward accused. Epithets used by prosecuting attorney toward accused, held not reversible error in a homicide case. State v. Hess, 239 Mo. 335, 144 Southwestern 489. {gg) Attorney general publishing charge of the creation of a fund to bribe jurors. Where jurors in a homicide case did not learn of a newspaper publication charging the creation of a fund to bribe jurors, the misconduct of the attorney general in causing the publication of the charge was not ground for reversal. Hughes v. State (Tenn. Sup.), 148 Southwest- ern 543. {hh) Prosecuting attorney repeating improper questions. The action of the prosecuting attorney in repeating questions, while not in proper form after the court had 182 The Trial— Evidence. §52 sustained objections, held not prejudicial to accused. Truax v. Commonwealth, 149 Ky. 699, 149 Southwest- ern 1033. (n) Prosecuting attorney treating five jurors and two of defendant's counsel to lemonade. The treating of five jurors, who had separated by per- mission of the court, and two of defendant's counsel to lemonade by the prosecuting attorney, nothing being dis- cussed which could prejudice the rights of the parties, is not ground for reversing the case. Bealment v. State (Ark. Sup.), ISO Southwestern 129. (//) Failure of prosecuting officer to make an opening statement to the jury. Where the prosecuting officer omitted to make any opening statement to the jury, as directed by circuit court, rule 24. but defendant did not point out how the accused suffered thereby, the omission was harmless. People v. Koharshi (Mich. Sup.), 142 Northwestern 1097. {kk) Prosecuting attorney reading to jury the indictment alleging defendant's two prior convictions. It was not error to read before the jury the Indictment alleging defendant's two prior convictions, where the court instructed the jury that they were to try the case on the evidence, and were to disregard the allegations of previous convictions. Commonwealth v. Payne, 242 Pa. 394, 89 Atlantic 559. {II) State's attorney requesting warrant for the arrest of one of accused's witnesses for perjury, in the presence of the jury. The impropriety of the state's attorney in requesting 183 § 53 Errors in Criminal Proceedings. a warrant for the arrest of one of accused's witnesses for perjury, in the presence of the jury, is harmless, where all the testimony was of little importance. People v. Duncan, 261 111. 339, 103 Northeastern 1043. Sec. 53. Alleged misconduct of the jury; and irregu- larities in relation thereto. (a) Not abuse of discretion to keep jury out forty hours in an important case. It is not an abuse of discretion for the trial judge to keep the jury out for forty hours in an important case, and then send them back to their room with an admoni- tion as to the importance to all concerned that they should agree upon a verdict. Andrews v. State, 15 O. C. C. n. s. 241, 23 O. C. D. 564. (&) Failure in bastardy case to read the transcript to the jury. In the trial of a bastardy case, failure to read before complainant rests the transcript of the evidence taken by the complainant before the magistrate, does not con- stitute prejudicial error, where the reading of the tran- script occurred before the defendant was placed on the witness stand. Campbell v. State, 15 O. C. C. n. s. 514. (c) Waiver of defendant to jury viewing premises in his absence. The jury viewing the premises, in a criminal case, in the absence of the defendant, is not error if he waives his privileges. Reighard v. State, 22 O. C. C. 340, 12 O. C. D. 382. 184 The Trial— Evidence. §53 (d) Allowing jury to withdraw in charge of an unsworn officer. It is not ground of error where the jury withdrew for a short time for a necessary purpose, during the progress of the trial, and 'before the evidence is all in, they going in charge of an officer not specially sworn for the pur- pose, no objection being made, and the jury are not tam- pered with, nor subjected to any improper influences, the defendant has no cause of complaint. Wilhelm v. Peo- ple, 72 111. 468; State v. Foster (Iowa Sup.), 114 North- western 36. (e) Counsel reading law books to the jury. Where, as in this state, the jury are the judges of the law, as well as the facts, counsel may read books of law to the jury, and in the case at bar the defendant was not prejudiced thereby. Wohlford v. People, 45 111. App. 188, affirmed 148 111. 296; Palmer v. People, 138 111. 356, and that counsel may comment on the same. Juror read- ing newspaper account of criminal trial. Capps v. State (Ark. Sup.), 159 Southwestern 193, 46 L. R. A. n. s. 741. (/) Presence of bailiff in jury room during deliberations. The unlawful presence of the bailifif in the jury room during its deliberations is not ground of reversal, where the trial court, on affidavits, decides that defendant was not injured thereby, and the Supreme Court will not dis- turb the decision. Clayton v. State, 100 Ind. 201; Graves V. Territory, 16 Okla. 538, 86 Pacific 521. (g) Jury warned not to consider improper testimony. A judgment will not be reversed because of the erro- neous admission of evidence, when it is afterwards ex- 185 § 53 Errors in Criminal Proceedings. eluded from the consideration of the jury by an instrucr tion. State v. Schaefer, 74 Iowa 704; State v. Helm, 97 Iowa 378. (h) Jury settling verdict by lot. A decision overruling a motion for a new trial, on the ground that the jury had settled their verdict by lot is final and can not be reviewed on appeal, as Criminal Code, sec. 281, provides that a decision upon a motion for a new trial shall not be subject to exception. Red- mon V. Commonwealth, 82 Ky. 333, 6 Ky. L. R. 227, overruling Railroad Co. v. Commonwealth, 80 Ky. 147, 3 Ky. L. R. 650. Although there was apparent misconduct on the part of the jury. Turner v. Commonwealth, 25 Ky. L. R. 981, 76 Southwestern 853. Asking officer how it was done and told. Watson v. State, 48 Tex. Cr. Rep. 323, 87 Southwestern 1158. (j) Discharging jury when accused was in jail. When a jury that remained out some time, after in- forming the court that there is no probability of their agreeing on a verdict, they are discharged while the ac- cused is absent in jail, is harmless error. Yarbrough v. Commonwealth, 89 Ky. 151, 11 Ky. L. R. 351, 12 South- western 143. (/) Jury heeding statement of jailer. The misconduct of the jury in heeding the statement of the jailer tending to convict a party of manslaughter, is not an error of law within the meaning of the Crim- inal Code, sec. 34, authorizing a reversal of a judgment of conviction for any error of law to the defendant's prejudice. Crockett v. Commonwealth, 10 Ky. L. R. 159, 7 Southwestern 907. 186 The Trial— Evidence. §53 (k) Irregular conduct of jury in murder trial. In an indictment for murder in the commission of a rape, it is irregular for the jury to send the constable for a magnifying glass, and with its aid compared the fibers adhering to the clothes of the murdered girl with those on the wooden platform on which the state contended she had been thrown down when she was violated; but such irregularity will not be ground for reversal when the correspondence of the fibers had been actually proved, and the only inference that could be drawn is that the examination resulted in the accused's favor, and not to his prejudice. Titus v. State, 49 N. J. L. 36, 7 Atlantic 621. (/) Calling jurors to prove cojuror's misconduct. Calling jurors as witnesses to prove their own official misconduct or that of their fellows, held conspicuously illegal. Titus v. State, 49 N. J. L. 36, 7 Atlantic 621. (ot) Errors of jury disregarded unless palpable and ap- parent. A judgment will not be reversed on account of the er- rors of the jury unless such errors are most palpable and apparent. Fithington v. State, 35 Texas 125. (m) Taking roll of jurors as to whether conviction was on both counts. In a case tried under an indictment consisting of two counts, each of which sufficiently charges defendant with simple larceny, the jury returned a general verdict of guilty. The court, on being asked by defendant to have the jury polled, stated to the jury, "I suppose you meant to find the prisoner guilty on both counts," and after- 187 § 53 Errors in Criminal Proceedings. wards directed a poll to be taken. Held, that there was no prejudicial error. State v. Halida, 28 W. Va. 499. (o) Jtiry inspecting countenance of child in affiliation pro- ceedings. Misconduct of the jury in inspecting, out of court, the countenance of the child in affiliation proceedings, is cured by an instruction to the jury, that they must not take the child's appearance into consideration, in deter- mining whether defendant is its father; and, in the ab- sence of proof to the contrary, they will be presumed to have followed the instruction. Le Mott v. State, 128 Ind. 123, 27 Northeastern 346. {p) Taking to jury room an affidavit filed with the in- formation. The taking by the jury to the jury room of an affidavit filed with the information was harmless, affiant having testified to the same facts stated in the affidavit. Langan v. People, 32 Col. 414, 76 Pacific 1048. Indictment with verdict of guilty thereon. Miller v. State (Okla. Cr. App.), 130 Pacific 813. Revolver and overalls. State v. Riley (Utah Sup.), 126 Pacific 294. Exhibit containing certain names and telephone numbers. People v. Tib- bett (Mich. Sup.) 139 Northwestern 868. (g) Jury leaving punishment to he fixed by the court. The jury being unable to agree as to the punishment to be fixed, were instructed to leave that to the court, and a conviction of manslaughter was soon announced. Under the evidence defendant could not have been con- victed of involuntary manslaughter, and his punishment was fixed by the court at one year's imprisonment, while 188 The Trial— Evidence. §53 the lowest penalty for manslaughter is two years. Held, that defendant was not prejudiced by taking from the jury the duty of fixing the punishment. Taylor v. State, 71 Ark. 158, 83 Southwestern 922. (r) Permitting jury to hear evidence addressed to the court. It is not prejudicial error to permit the jury to hear evidence addressed to the court, on the question as to whether a writing offered as a dying declaration is ad- missible as such. Austin v. Commonwealth, 10 Ky. L. R. 474, 40 Southwestern 90S. {s) Jury, during recess, able to see prisoner in the jail playing cards. It is no ground for reversal of a conviction of murder in the first degree, that the jury, during the recess of the court, could look from the jury room into the jail and see the prisoner playing cards. Commonwealth v. Zillafrow, 207 Pa. 274, 56 Atlantic 539. (f) In a prosecution for rape, action of the jury in visit- ing scene of offense and comparing testimony with physical conditions. In a prosecution for rape, the action of certain jurors in going to the scene of the alleged offense and verifying the testimony of the state's witnesses as to the physical conditions, while not commendable, was not misconduct justifying reversal, in the absence of any, showing that what the jurors saw was referred to in the jury room, or that it had anything to do with the verdict. State v. Crouch, 130 Iowa 478, 107 Northwestern 173. Compar- ing stairways. Crowell v. State, 56 Tex. Cr. Rep. 480, 120 Southwestern 897. 189 § 53 Errors in Criminal Proceedings. (m) Jury taken to postoffice where juror gets newspaper with no reference to trial in progress. Where the jury, while trying the accused charged with murder, and who is convicted of manslaughter, is taken by the officer in charge to the postoffice, in order that one of the jurors may obtain stamps, and, while there, one of them is handed a newspaper which has come through the mail in a wrapper, but it does not appear that any of the jurors was spoken to by outside persons, and it is shown by the testimony of the juror in ques- tion that the paper received by him was a daily from a distant city, and contained no reference to the case on trial, and there was nothing to show injury to the ac- cused, the fact of the jury's going to the postoffice and of the delivery of the paper to the juror, though irregu- larities which are to be deprecated, do not demand the reversal of the verdict. State v. Veilion, 29 Southern 883. {v) Jury reading reported case containing section of penal code differing from that upon which defendant was tried. Where the jury, in a criminal prosecution, read a re- ported case construing a section of the Penal Code other than that under which defendant was prosecuted, where the opinion contained a correct statement of the law and was pertinent to the issue, was without prejudice. Camp v. State (Tex. Cr. App.), 57 Southwestern 96. (w) Inquiry by juror, "Why did defendant not testify?" The mere inquiry by a juror during their deliberations, "Why did defendant not testify?" is not such misconduct as authorized the setting aside of the verdict of convic- 190 The Trial— Evidence. §53 tion. Parrish v. State, 48 Tex. Cr. Rep. 347, 88 South- western 231 ; Jenkins v. State, 49 Tex. Cr. Rep. 457, 93 Southwestern 726. Discussing defendant's failure to tes- tify. Reves v. State (Tex. Cr. App.), 117 Southwestern 152; Probst v. State (Tex. Cr. App.), 133 Southwestern 263; PuIIen v. State (Tex. Cr. App.), 156 Southwestern 935. {x) Reference in jury room as to how the jury stood in former trial. On a motion for a new trial after conviction for mur- der, two members of the jury testified that some refer- ence was made in the jury room to the fact that a for- mer jury, which had disagreed, stood eight to four, or ten to two. It was not shown that anyone stated whether a majority of the former jury were for convic- tion or acquittal. The other jurors, though present at the hearing of the motion for a new trial, were not called as witnesses. Held, that it did not appear that defendant was prejudiced by the reference to how the former jury stood. Long V. State, 48 Tex. Cr. Rep. 175, 88 South- western 203. (y) Jury using intoxicating liquors during the progress of the trial. While it is error in a criminal case to permit the jury to use intoxicating liquors, to any extent, during the progress of the trial, yet a verdict will not be set aside on such ground unless it is shown that the jurors were under the influence of such liquors, or that the defendant was prejudiced thereby. State v. Corcoran, 7 Ida. 220, 61 Pacific 1034. 191 § 53 Errors in Criminal Proceedings. (s) Unauthorized separation of the jury in a prosecution for burglary. In a prosecution for burglary, the unauthorized sepa- ration of the jury is insufficient to authorize a new trial, in the absence of a showing of prejudice. Flanagan v. People, 214 111. 170, 73 Northeastern 347; State v. Clark, 51 W. Va. 157, 41 Southeastern 204. (aa) Jury conversing with an outsider. A jury's conversation with an outsider was shown to be without prejudice, when its subject was shown to be a domestic matter foreign to the subject of the trial. Yowell V. State, 72 Ark. 158, 78 Southwestern 762; State V. Baughman, 111 Iowa 71, 82 Northwestern 452; Fow- ler V. Commonwealth, 7 Ky. L. R. (Abst.) 529. (bb) Juror leaving room and hailing driver of passing hack. The fact that a juror follows a deputy sheriflF out of the room in which the jury is convened aftd hails the driver of a passing hack from the door of the courthouse, affords no reason for setting aside the verdict subse- quently brought in, where he was immediately admon- ished by the sheriff and returned to the jury room, and there is no suggestion of prejudice to the accused. State V. Golden, 113 La. 791, 37 Southern 757. {cc) Entire book permitted to go to the jury, when but part put in evidence. Where counsel for both parties agree to submit in evi- dence and read to the jury certain entries in a book, permitting the entire book to go to the jury is not cause for a new trial, although it contains matter which is ir- 192 The Trial— Evidence. §53 relevant and improper for them to consider, the jury having been specifically and properly instructed as to what portion of the book they could consider and what not, and there being no way to detach or expunge the irrelevant evidence from the book without mutilating it. Bridges v. State, 110 Ga. 246, 34 Southeastern 1037; Commonwealth v. Wingate, 72 Mass. (6 Gray), 485. So of coroner's inquest. State v. Kysilka, 84 N. J. L. 6, 87 Atlantic 79. (dd) Failure to send instructions to the jury room. In the absence of any request for the instructions, or special necessity therefor, failure to send them to the jury room is not reversible error. State v. Bundy, 71 Kans. 779, 81 Pacific 459. (ee) Bailiff accidentally taking the jury over the ground where the shooting occurred. In homicide, conduct of the bailiff in accidentally tak- ing the jury over the ground where the shooting oc- curred, in order to accommodate one of the jurors who wished to attend to a call of nature, was not such mis- conduct as to require the conviction to be set aside, al- though neither defendant nor his counsel were present with the jury at the time; where the entire jury were under the supervision of the bailifif, and there was noth- ing said about the offense while they were present at the place in question. Vasser v. State, 75 Ark. 2i72), 87 South- western 635. iff) Where jury disagree as to the testimony of witness and he is again placed on the stand. Where the jury returned to the courtroom, after hav- ing retired, and stated that they disagreed as to what a 193 Errors — 13. § S3 Errors in Criminal Proceedings. certain witness testified, and asked to have him placed on the stand again and asked a question, the error in refusing to permit defendant to see the question before it has been asked is harmless. Jack v. State (Tex. Cr. App.), 117 Southwestern 139. {gg) Refusal to withdraw juror for conduct of district at- torney. On the trial of an indictment for perjury, for averring falsely before a magistrate, as the record of the magis- trate is admissible as inducement, though not to prove the falsity of the prisoner's testimony, it is not reversible error for the trial judge to refuse to withdraw a juror because the district attorney stated in his opening that he would prove that the magistrate dismissed the proceeding. Commonwealth v. Williams, 41 Pa. Sup. tt. 326. {hh) Juror separating from the others pending a criminal trial. Where a juror separates from the other jurors pend- ing a criminal trial, the burden is on the state to show that he was not subjected to any injurious influence. Ferguson v. State (Ark. Sup.), 129 Southwestern 813. (ii) Remark of juror to two cojurors that he never before heard the moral character of the prosecutrix questioned. The remark of a juror, in a trial for seduction, made to two of his fellow jurors, after the submission of the case, that he had never heard the moral character of the prosecutrix questioned before the trial, did not require the setting aside of the verdict of conviction, since the record conclusively showed that no prejudice resulted 194 The Trial— Evidence. §53 therefrom. State v. Krumm (Iowa Sup.), 127 North- western 985. (;7) Juror, in trial for rape, speaking to prosecutrix. That one of the jurors spoke to the prosecutrix during a trial for rape, but had no conversation with her fur- ther than to pass the time of day, was not prejudicial to accused. State v. Dudley (Iowa Sup.), 126 Northwest- ern 812. {kk) Permitting the jury in a murder trial to separate for twenty-one days. Where, after the state had made its case in chief, on a murder trial, an order permitting the jury, after being dismissed, to separate for twenty-one days during the postponement because of the quarantine of four of ac- cused's witnesses, was not ground for reversal, where the record shows no misconduct of any juror or preju- dice to accused. Ossenkop v. State, 86 Neb. 539, 126 Northwestern 72. (//) While deliberating delivery of note that "Aunt Sophia" is dead. While the jury were deliberating on the verdict, a note was sent to them that "Aunt Sophia" is dead. It was not shown from what source it came or who it was in- tended for. Held, that no prejudice can be presumed to have resulted to the defendant though the jury, shortly after receiving the note, reached a verdict against him. People V. Harrison (Cal. App.), 112 Pacific 733. (mm) Where jurors unauthorisedly communicated with third persons. Where jurors unauthorizedly communicated with third persons, the burden is on the state to show that no in- 195 § 53 Errors in Criminal Proceedings. jury occurred to accused. Parshall v. State (Tex. Cr. App.), 138 Southwestern 759; State v. Thorn (Utah Sup.), 117 Pacific 58. (nn) Misspelling of name of foreman of the jury. W. C. Brackeen was drawn on the venire and served as foreman of the jury, and signed the verdict by that name, but signed it so that it looked Hke "Breechen." Accused's counsel had known the juror for years and ac- cepted him as a juror, and saw him hand the verdict to the court and heard it read, with his name as foreman, without objection. Held, that accused could not have been prejudiced by any apparent misspelling of the juror's name. Jones v. State (Tex. Cr. App.), 141 South- western 953. {oo) Statement by juror in jury room that he knew ac- cused to he a thief. The improper statement of a juror, while in the jury room, that he knew accused to be a thief, and that he was a bad character, was not prejudicial error, where the aflfidavits of the jurors were to the efifect that the re- marks made no impression on their minds, and that the verdict was based on the evidence. Lambert v. State (Neb. Sup.), 136 Northwestern 720. (/>/>) Where jury in considering punishment discussed that accused was a professional man. That the jury in considering the punishment to be as- sessed discussed the fact that accused was a professional man and a good party to make an example of, held not to justify a reversal, where the evidence justified the punishment assessed. Fletcher v. State (Tex. Cr. App.), 153 Southwestern 1134. 196 The Trial— Evidence, §54 (qq) Sheriff telling the jury to get out of a window, and "get together and reach a verdict." That a sheriff being instructed to tell the jurors, in a criminal case, to keep out of the windows of the jury room, and told them to get out of the windows and "get together and reach a verdict," was harmless. Horton v. State (Okla. Cr. App.), 136 Pacific 177. (rr) Where jury asked judge whether they could recom- mend clemency. Where the jury, during their deliberations, asked the judge whether they could recommend clemency, his statement that it was not their province to do so, but that he would consider any recommendation made after their discharge, was not ground for reversal, where the jury were not influenced thereby, though he could not fix the penalty or grounds of parol. State v. Dunford, 91 Kans. 898, 139 Pacific 430. {ss) Impropriety of officers in charge of jury allowing the wives of jurors to hold intercourse with them. The impropriety of officers in charge of jury allowing the wives of jurors to hold some intercourse with them, does not necessitate reversal, where it did not operate prejudicially to the defendant. People v. Duncan, 261 111. 2>2i9, 103 Northeastern 1043. Sec. 54. Alleged misconduct of witnesses, (a) Witness accusing defendant of the crime, not ground for stopping the trial. An hysterical outbreak of a mother, while on the stand as a witness, at a trial of an indictment against a third 197 § 54 Errors in Criminal Proceedings. person for the murder of her child, in which she accused him of the crime, but not in response to any question is not sufficient ground for stopping the trial, and the jury, in the charge to them, having been fully cautioned to disregard the accusation by the witness, the court was not obliged to stop the trial, and the defendant is not aiTorded ground of exception. Commonwealth v. Gilbert, 165 Mass. 45, 42 Northeastern 336. (&) Witness divulging that accused admitted his guilt to him. A witness having testified that he did not remember a supposed admission of guilt by defendant, was asked, whether he had not made a statement with respect to defendant before the trial, and replied in the affirmative. Held, that the answer, though erroneously received when given, became immaterial when not followed up by fur- ther inquiry, and was harmless. Commonwealth v. Brown, 150 Mass. 330, 23 Northeastern 49. (c) Witness testifying to forgery before examination as to his qualifications. A conviction of forgery will not be reversed because a witness was allowed to testify that the forged instru- ment was in defendant's handwriting before defendant was permitted to cross-examine him as to his qualifica- tions, where defendant had an opportunity to cross-ex- amine the witness later, but did not avail himself of it. Commonwealth v. Hall, 164 Mass. 152, 41 Northeastern 133 (d) Hearsay added by witness stricken out by court. Where an objection was made to a witness being asked whether his wife recognized the accused as the person 198 The Trial— Evidence. §55 who committed the crime, and the court ruled that it was proper to show that the fact of recognition was com- municated to the witness, without his stating what his wife said, it was not ground for reversal that the wit- ness, in addition to testifying that his wife recognized the accused, stated what she told the witness, when the court immediately struck out such objectionable part of the answer. People v. Mead, 50 Mich. 228, 15 North- western 95. Sec. 55. Alleged misconduct of bystanders. (a) Bystander conversing with juror while in charge of sheriff. It affirmatively appearing that the prisoner could in no wise have been affected by the conversation of a by- stander with a juryman, while in charge of the sheriff, no ground for reversal exists on that account. Fowler v. Commonwealth, 7 Ky. L. R. (Abst.) 529. (&) Remark by bystander to a juror that accused ought to hang. Where the evidence clearly shows that defendant was guilty of the crime of murder, the fact that a bystander stated to a juror that the accused should be hung, is not prejudicial, and a reversal will not be granted where it is not shown that the juror was influenced by the re- mark. Milton V. Commonwealth, 13 Ky. L. R. 158, 16 Southwestern 826. (c) Writing on window-glass, "hang him, hang him," readable by jury. On a trial for murder, while the commonwealth's at- torney was making the closing argument, one of the 199 § 56 Errors in Criminal Proceedings. audience wrote on the window-glass the words, "hang him, hang him," in large letters so as to be easily read by the jury; held, that in the absence of evidence that the jury were affected by the impropriety a conviction should not be reversed. Baskett v. Commonwealth, 19 Ky. L. R. 1995, 44 Southwestern 970. (d) Applause by spectators when county attorney finished his address to the jury. On a trial for murder, when the county attorney fin- ished his closing address to the jury, some of the by- standers, without the knowledge or connivance of anyone connected with the prosecution, applauded, which was quickly suppressed by the presiding judge, and who ad- ministered a rebuke to the persons making the applause. Held, that the record failed to disclose that the defend- ant was prejudiced by the demonstration. Debney v. State, 45 Neb. 859, 64 Northwestern 446; Arnold v. Commonwealth, 21 Ky. L. R. 1566, 55 Southwestern 894. (e) Declaration of bystander to the court during the trial. Declarations of bystander, addressed to the court dur- ing the trial, will not be held prejudicial, where the court earnestly admonished the jury to discard them from their minds. People v. Silva (Cal. App.), 128 Pacific 348. Sec. 56. Remarks by the court. (a) Remarks by the court to the jury. A remark by the court, as the jury are about to retire, that the court will remain for an hour to see if they can agree, and then adjourn until morning if there is no prospect of agreement, can not be deemed injuriously to have hastened the verdict where it was not found until 200 The Trial— Evidence. §56 some hours afterwards. Mclntyre v. People, 38 111. 514; afterward withdrawn. Reinhold v. State, 130 Ind. 467, 30 Northeastern 306. (b) Uninjurious remark by the court. On a murder trial a letter contained threats against deceased and was offered in evidence as being in the handwriting of defendant. The court, in considering its admissibility, remarked that he considered the signature, "Syl. Goodbye," to mean "Goodbye, Syl." Sylvester was defendant's Christian name. The jury were instructed that they were the exclusive judges of both the law and the evidence. Held, that the court was not required to instruct that the jury should not consider the remark. Grubb V. State, 117 Ind. 277, 20 Northeastern 257, 725. (c) Remark by court that men sometimes "sivap" work. Where one who was called as a juror stated that his brother-in-law was indicted in that court for murder, and that the case was to be tried at that term, and the court, in telling him to stand aside, remarked that "men some- times swap work," the remark, though improper, was not prejudicial to defendant. Howard v. Commonwealth, 24 Ky. L. R. 612, 69 Southwestern 721. (d) Remark as to consequences of pointing a gun at an- other, although intent to injure be absent. On a prosecution for the careless use of a gun, a re- mark of the court that "all that is necessary to constitute this offense is the fact that this young man pointed the gun at the other young man, and that he was shot and maimed," made use of in relation to an objection in the course of the trial, was harmless error, where the judge fully covered the law appHcable to the case. People v. 201 § 56 Errors in Criminal Proceedings. Dudley, 131 Mich. 261, 90 Northwestern 1058, 9 D. L. N. 309. (e) Remark implying confession by accused. Error in a question to a witness and a statement of the court, in the presence of the jury, implying that a confession had been made, is cured as soon as the fact is proved by the testimony of a witness and the ac- cused. State V. Williams, 31 Nev. 360, 102 Pacific 974. (/) Discretion to comment on the evidence. It is not erroneous for a judge presiding at a criminal trial to make to the jury such comments and sugges- tions respecting the evidence as judicial discretion may dictate. State v. Valentine, 71 N. J. L. 552, 60 Atlantic 177; and express opinions thereon. Engle v. State, 50 N. J. L. 272, 13 Atlantic 604; State v. Hammer, 73 N. J. L. 328, 65 Atlantic 249; State v. Herron (N. J. L.), 71 Atlantic 274. (g) Immaterial remarks to jury. Where, after full consideration of the entire record, it is clear that the verdict is right, and that even if certain improper remarks of the court had not been made, the jury could not well have returned a different verdict, the judgment will be affirmed. Miller v. Territory, 15 Okla. 422, 85 Pacific 239; rev. 149 Federal 330, 79 C. C. A. 268. (h) Erroneous statement of the law by the court in col- loquy with counsel. An erroneous statement of the law by the trial judge, in a colloquy with counsel during the argument to the jury, is not suffi'cient ground for setting aside the verdict, when it is clear that it could not have prejudicially influ- 202 The Trial— Evidence, §56 enced the verdict. Barnes v. Territory (Okla. Sup.), 91 Pacific 848. (i) Remark by the court as to testimony of a witness. While it may not be reversible error for the court, upon a controversy between counsel in argument, to state that the witness did not make a certain statement, yet in view of the possibility of the judge, during a long and tedious trial, failing to hear or remember all the tes- timony, it is better practice to have the witness recalled. Hoard v. State, 15 Lea (83 Tenn.) 317. (;') Objectionable remarks do not raise presumption of prejudice. Where some of the remarks of the trial judge to the jury are objectionable, and might be treated as oral in- structions, still when the judge, after making such re- marks, informs the jury that he does not desire or de- sign to give them any additional instructions, and that they must remember that the written instructions are their sole guide, this court will not infer that error preju- dicial to the rights of the defendant was thereby commit- ted. State V. Hobbs, 62 Kans. 612, 64 Pacific 73; People V. Myers, 113 Cal. 618, 45 Pacific 860. (k) Remarks not affecting the result of the trial. Remarks by the trial court may be open to criticism, but they are not error unless they have affected the re- sult of the trial, especially where the remark was not in connection with the case, and could not have affected the defendant in any way. Cochran v. State, 113 Ga. 726, 39 Southeastern 332; Mash v. People, 220 111. 86, 77 North- eastern 92. 203 § 56 Errors in Criminal Proceedings. (/) Giving recollection of testimony, but telling jury to be guided by their, not by his. A conviction will not be reversed because the trial judge in sustaining an objection to a question to a wit- ness, which included a statement attributed to a witness previously examined, gives his recollection of what such witness testified, when the jury were told that they were to be governed by their recollections, and not by that of the judge. State v. Golden, 113 La. 791, 37 Southern 757. (w) Remark as to deceased having been in a penitentiary. The remark of the court, after defendant in a murder trial had got through cross-examining a witness, as to deceased having been in a penitentiary, that he supposed that line of questioning would be objected to sometime, will not be held prejudicial. State v. Riddle, 179 Mo. 287. 78 Southwestern 606. (w) Remarks by district attorney and judge derogatory to defendant. Remarks to the jury by the district attorney and ob- servations by the trial judge, not complimentary to de- fendant, may be disregarded on appeal, where the evi- dence is clear respecting the guilt of defendant. People v. FroeHch, 96 N. Y. Supplement, 488, 110 App. Div. 873; affirmed 185 N. Y. 615, 78 Northeastern 1108. (o) Remark that there was no evidence of offer of reward for the apprehension of perpetrator of deed. A true statement by the court in a criminal prosecu- tion that there was no evidence that the county had of- fered any reward for the apprehension of the one guilty of the homicide, is not prejudicial, where it is made in 204 The Trial— Evidence. §56 response to the district attorney's objection to the state- ment of accused's attorney, in his argument, that certain detectives, whose testimony had been introduced, were working to obtain a reward from the county. State v. Magers, 36 Ore. 38, 58 Pacific 892. (p) Statement by court that witness should not be asked leading questions, as he was favorable to the defense. The court, in ruHng on objections to testimony, stated that the witness was the personal friend of the defend- ant, and was in the service of defendant's father, and it was to be presumed that he was friendly to defendant, to which the defendant excepted, and subsequently the court stated to defendant's attorney that the witness should not be asked leading questions, as he was favor- able to the defense. Held, that a statement that the court would withdraw any remark concerning the wit- ness, and the jury should disregard any such remarks cured any error. State v. McDamiel, 39 Ore. 161, 65 Pacific 520. (g) Remark as to the weight to be given to dying declara- tions as evidence. Where deceased, who was a physician, was shot by defendant, and the statements made by deceased were admitted as dying declarations, a remark of the trial court, in the presence of the jury, that the testimony jus- tified the opinion, that there was a continuous dying con- dition, of which deceased was aware, bearing in mind that he was a medical man, and therefore able to form a more intelligent opinion of his condition than a layman, was not so prejudicial to defendant, in indicating the opinion of the court as to the weight to be given the 205 § 56 Errors in Criminal Proceedings. dying declaration by the jury, as to necessitate a re- versal. State V. Lee, 58 S. C. 355, 36 Southeastern 706. (r) Remark that testimony is not very material. Remark by the court of testimony, "that it is not very material, but it may go to the jury," is harmless error, where the testimony was, in fact, immaterial. McGee v. State, 37 Tex. Cr. Rep. 668, 40 Southwestern 967. (s) Comment of court on rejected evidence, "That cuts no ice." Comment of the court, in a criminal prosecution, on rejected evidence, that "that cuts no ice. The only ques- tion is, whether defendant assaulted her" (prosecutrix), while improper, is not reversible error. Huizar v. State (Tex. Cr. App.), 63 Southwestern 329. {t) Remark of court as to angle at which bullet would glance. Where defendant, in an action for assault with a dead- ly weapon, claimed the ball glanced and hit the prose- cutor, and the court, in deciding an objection to the in- troduction of testimony, made a statement as to the principle of physics in regard to the angle at which a bullet would glance, error in such remark, as a comment on the evidence was cured by the court informing the jury at the time that they should pay no attention to his remarks. State v. Surry, 23 Wash. 655, 63, Pacific 557. {u) Remark that if hypothetical question was not based on evidence jury could exclude answer. The court's stating, in relation to a hypothetical ques- tion, that it was for the jury, and if it was not based on evidence the jury could exclude it, is not prejudicial 206 The Trial— Evidence. §56 error, where the record showed that the question was founded on the evidence. State v. Boyce, 24 Wash. 514, 64 Pacific 719. (v) Where jury differ as to testimony of witness, court asking, if counsel for accused would consent to have stenographic report read. When the jury, in the trial of a criminal case, differ as to the testimony of a witness, and coming into court make this difference known, the court may either recall the witness, or of its own motion have the stenographic report of the witness's testimony read to the jury; for the court to ask, in the presence of the jury, if counsel for the accused would consent to the stenographic report being read, while improper, is not reversible error. Mor- man v. State, 110 Ga. 311, 35 Southeastern 152. {w) Impatient remarks by court to defendant's counsel. In a criminal proseciition, where there was no lack of evidence to support the conviction, impatient and im- proper remarks of the court to defendant's counsel will not warrant a reversal. Tuttle v. State (Ark. Sup.), 104 Southwestern 135. (.r) Witness admonished to answer frankly, and that it would be well if some people were prosecuted for perjury. Where the testimony of a witness was not in favor of accused, and his answers showed that his merhory was poor, or that he was uncandid in his statements, the ad- monition of the court that it was the duty of a witness to answer the question frankly, and that it would be good for the community if some people were prosecuted 207 § 56 Errors in Criminal Proceedings. for perjury, was not prejudicial to accused. Ehrlick v. Commonwealth, 33 Ky. L. R. 979, 112 Southwestern 565. (y) On question as to how accused made her money, re- mark, "I think the foster-father would be apt to know as much as anybody." In ruling on an objection by accused to a question asked on cross-examination of her foster-father, inquiring how accused made her money, the court said, "I think this being the foster-father, he would be apt to know as much as anybody." Held, that where the answer of the witness was favorable to accused, her rights could not have been prejudiced by the ruling, though the efifect of the court's statement might be calculated to influence the jury as to the weight to be accorded the answer of the witness, so that if the answer had been adverse to ac- cused, the remark might have been prejudicial. People V. Casselman, 10 Cal. App. 234, 101 Pacific 693. (z) Expression of opinion as to improper testimony sought to be elicited. Where the court at the trial expresses an opinion as to improper testimony sought to be elicited, it is not re- versible error, unless the appellate court can say that it influenced the verdict. Evers v. State, 84 Neb. 708, 121 Northwestern 1005. {aa) Where court told jury he wished them to consider the case during the night as he wished to leave next morning. Code Criminal Procedure 1895, sec. 733, provides that when the jury wish to communicate with the court they shall make their wish known to the sheriflf, who shall 208 The Trial— Evidence. §56 inform the court thereof, and they may be brought be- fore the court, through their foreman, who shall state what they desire to communicate. Held, that where the jury came into court during the absence of defendant and his counsel, and asked to be released from further con- sideration of the case during the night, and the court told them that he desired them to consider the case dur- ing the night, as he wished to leave town the next morn- ing, there was no such error as required a reversal. Washington v. State, 56 Tex. Cr. Rep. 195, 119 South- western 689. (bb) Remark to counsel not to read a part of an instru- ment without reading all of it. The action of the court in saying to counsel for ac- cused during the argument, that a paper in evidence was not a rent note, but an evidence of a purchase, and that counsel must not read a part of the instrument, and make argument on it, without reading all of it, was not an abuse of discretion calling for a reversal. Telfair v. State, 58 Fla. 110, 50 Southeastern 573. (cc) Emphatic expressions of the trial judge. While expressions of the judge, though harmless in themselves, may be made with such emphasis as to be highly prejudicial to one of the parties, an appellate court can give no relief. State v. Driggers, 84 S. C. 526, 66 Southeastern 1042. {dd) Manifest mistake in attributing remark to a witness, not shown by the testimony. A conviction of murder will not be reversed because the trial judge made a manifest mistake in attributing a 209 Errors — 14. § 56 Errors in Criminal Proceedings. remark to a witness, which was not shown by the testi- mony, where the remark was so wholly irrelevant that no prejudice was shown. Commonwealth v. Fencez, 226 Pa. 114, 75 Atlantic 19. (ee) Remark that membership of accused might be a re- flection on the church. During the taking of evidence as to the character of the accused, the question was asked as to his member- ship in a church, and, on objection being sustained, his counsel stated that such membership was no reflection on him, to which the court, in a spirit of levity, replied, that it might be a reflection on the church. On objec- tion the court promptly withdrew the remark and spe- cially charged the jury not to consider it. Held, that de- fendant was not prejudiced thereby. Pilgrim v. State (Tex. Cr. App.), 128 Southwestern 128. (ff) Remarks of the presiding judge, "It seems to me that he is somewhat hostile," and "It is a leading question." The remarks of the presiding judge that "It seems to me that he is somewhat hostile," and "It is a leading question," "The witness does not seem to be very friend- ly, and I will let it stand," were not prejudicially erro- neous. People V. Rudorf, 149 111. App. 215. {gg) Remark that on cross-examination counsel had brought out what had been better let alone. Whie the district judge, in ruling upon objections to evidence, should refrain from expressing his opinion concerning its weight or the credibility of witnesses, a remark that some things he had better let alone is not 210 The Trial— Evidence. §56 reversible error. Johns v. State (Neb. Sup.), 129 North- western 247. (hh) In a prosecution for fraud, question to stenographer, "Did it strike you as strange that these letters were written on different letterheads?" In a prosecution for obtaining money by a confidence game, in which the evidence clearly showed that the ac- cused had admitted that letters used in the fraudulent scheme were not genuine, and the evidence was sufficient to sustain a conviction, the act of the court in asking a witness, who was the stenographer who wrote the let- ters, "Did it strike you as being rather strange that the same man was writing all these letters on different letter- heads of various — deals ?" was not ground for reversal. People V. Faulkner, 248 111. 158, 93 Northeastern 741. {ii) Remark that testimony objected to by accused is material, and counsel should not be so quick to take exceptions. Remarks of the court that testimony objected to by the accused is material, and that counsel should not be so quick about taking exceptions, was not prejudicial. People V. Burkhart (Mich. Sup.), 130 Northwestern 597, 18 D. L. N. 107. (;';) Remarks complimentary to prosecuting attorney and criticising the attorney for accused. Though remarks of the trial court, in the presence of the jury, whereby it complimented the attorney for the state, and criticised the attorney for the accused, should not have been made, they were not ground for reversal. State V. Sharp (Mo. Sup.), 135 Southwestern 488. 211 § 56 Errors in Criminal Proceedings. (kk) Remark, on being informed that jury could not agree, "Tell the jury as long as there is life there is hope, and this court lasts four weeks longer." A remark by the court, in the absence of accused and his counsel, "Tell the jury as long as there is life there is hope, and this court lasts four weeks longer," was not reversible error. Booth v. State (Tex. Cr. App.), 145 Southwestern 923. (//) Remark, in admitting statement of accused, that whether act was voluntary or involuntary was a question for the jury. Where an incriminating statement was voluntarily made by accused, the remark of the court in admitting proof of the statement, that whether the statement was voluntary was a question for the jury, was not prejudi- cial. Kirby v. State (Ala. App.), 59 Southern 374. {mm) Remark that district attorney woidd not ask de- fendant the question, unless he had some means of proving it. In a prosecution for murder, a remark of the court, on objection to the cross-examination of the defendant by the district attorney, "that the district attorney would not ask the question unless he had some means of prov- ing it." Held, not reversible where the testimony of defendant showed his guilt. Rodriquez v. Territory (Ariz. Sup.), 125 Pacific 878. {nn) Statement of trial judge to accused's attorney, that he luas going to rule in his favor, if he had sense enough to keep quiet. A statement by the trial judge to accused's counsel, 212 The Trial— Evidence. § 56 that he was going to rule in his favor if he had sense enough to keep quiet, when counsel stated, "I desire also, if the court will give his reasons for telling me I have no sense," and the judge's remarks, "That it per- haps might require too much time to give the reasons. Proceed." Held, not prejudicial to accused. People v. Cramley, 23 Cal. App. 340, 38 Pacific 123. (oo) Remark to defendant's counsel during cross-examina- tion, to let the witness answer the question before butting in on him. The court's remark to defendant's counsel during the cross-examination, to let the witness answer the question before butting in on him, as qualified in the bill of ex- ceptions; held, not prejudicial to defendant. Link v. State (Tex. Cr. App.), 164 Southwestern 987. (pp) Judge's statement in jury's hearing, that "the in- struction asked by defendant is refused." The judge's statement in the jury's hearing that "the instruction asked by defendant is refused," held not ground for reversal. McMartin v. State (Neb. Sup.), 145 Northwestern 695. (gg) In prosecution for rape, remark that there was no evi- dence that prosecutrix was over sixteen years old. In a prosecution for rape, defendant was not harmed by the court's remarks, after calling attention to the evi- dence tending to show that the girl was under sixteen years of age, that, so far as he knew, there was no evi- dence from which they could infer she was over sixteen. State V. Farris, 81 Conn. 97, 70 Atlantic 587. 213 § 57 Errors in Criminal Proceedings. (rr) Failure to rebuke the solicitor general as to certain medical witnesses being called by defense. Failure to rebuke the solicitor general or stop him from arguing relative to the purpose of certain medical witnesses being called by the defense, held not ground for reversal. Frank v. State (Ga. Sup.), 80 Southeastern 1016. Sec. 57. Remarks of counsel. (a) Improper remarks of prosecuting attorney to the jury. In a criminal prosecution, where the remarks of the state attorney in addressing the jury appear to have been prompted by the previous conduct and remarks of counsel for the defendant, and the remarks objected to, do not appear to have been prejudicial to the defendant, the ruling of the court in refusing to stop the state at- torney is not erroneous. Reyes v. State, 49 Fla. 17; Duffin V. People, 107 111. 113; Boyle v. State, 105 Ind. 469, 5 Northeastern 203; People v. Ringstead, 90 Mich. 317, 51 Northwestern 519; Jamison v. United States (Okla. Sup.), 104 Southwestern 872; Watkins v. United States, 1 Ind. Ter. 364, 41 Southwestern 1044; Reed v. State (Okla. Cr. App.), 103 Pacific 1042; Sellers v. State (Ark. Sup.), 124 Southwestern 770; Thacker v. State (Okla. Cr. App.), 106 Pacific 986. (&) Remarks calling attention to other irregularities of accused. The remarks of counsel as to other irregularities of the accused are not ground of reversal, where they could not have injured the defendant. Palmer v. People, 138 111. 356. 214 T^he Trial— Evidence. §57 (c) Admission in testimony of improper remark of prose- cuting attorney. Admission of testimony of a prosecuting attorney that his attention was called to the matter by the statement of an attorney, that there. was "crime there that ought to be investigated," is not an error of sufficient import- ance to warrant a reversal. Dean v. State, 130 Ind. 237, 29 Southeastern 911. (d) Prosecuting attorney branding defendant as a reputed hotel thief. While he may refer to a historical fact, such as the burning of the Cincinnati courthouse, it is highly im- proper for a prosecuting attorney to state that the de- fendant is, as he personally knows, a reputed hotel thief; but where there has been an excuse for such a statement, by reason of the remarks of defendant's counsel, and the evidence is such that a conviction would be unavoidable in any event, the court is justified in refusing to reverse it on that ground. Heyl v. State (Supreme Court In- diana), 10 Northeastern 916. (e) Prosecuting attorney stating that counsel for defend- ant and latter's employer were related. Statement of the prosecuting attorney in argument that T (for whom defendant was clerking, and in whose store the offense of keeping a gambling device was al- leged to have been committed) was related to Mr. W, they being counsel for defendant, while improper, is harmless, no injury being shown. White v. State, 37 Ind. App. 95, 76 Northeastern 554. 215 § 57 Errors in Criminal Proceedings. (/) Commonwealth's attorney stating that defendant de- nied everything as in other cases. A statement of the commonwealth's attorney to the jury in opening his case, to the effect that defendant de- nied everything as in other cases, was improper, but was not substantially prejudicial. Railroad Co. v. Common- wealth, 112 Ky. 635, 23 Ky. L. R. 1900, 66 Southwestern 505. (g) Comment or allusion by prosecuting attorney to ac- cused's failure to testify. It was harmless error to permit the prosecuting attor- ney to inferentially comment on defendant's failure to testify as a witness, that he might have informed the jury as to the truth of the alleged false testimony, which was peculiarly within his knowledge; there being no doubt from the evidence that the testimony was false. Cope V. Commonwealth, 20 Ky. L. R. 72, 47 Southwest- ern 436; Lipsey v. People, 227 111. 364; State v. Mat- thews, 119 La. 665, 44 Southern 336; People v. Higgins (Ca!. App.), 98 Pacific 683; Crawford v. United States, 30 App. D. C. 1 ; State v. Dirkey (S. D. Sup.), 118 North- western 1042; Simons v. State (Tex. Cr. App.), 120 Southwestern 208; People v. Luis (Cal. Sup.), 110 Pa- cific 580; State v. Baker (Mo. Sup.), 152 Southwestern 46; Cutler v. State (Ariz. Sup.), 138 Pacific 1048; Har- desty v. State (Neb. Sup.), 146 Northwestern 1007. (h) Prosecuting attorney, in murder trial, indicating motive for the act. The argument of the prosecuting attorney intimating a motive for the killing is not ground for reversal as prejudicial, where the evidence justifies a verdict for mur- 216 The Trial— Evidence. §57 der. Massie v. Commonwealth, 18 Ky. L. R. 367, 36 Southwestern 550. (i) Prosecuting attorney referring to convictions in other cases of homicide. Reference by the prosecuting attorney to the circum- stances of cases of homicide in which there were convic- tions for murder, with a view to persuade the jury that defendant is guilty of the same degree of ofifense, is im- proper, but not ground for reversal where, under the evidence, there was either murder or no ofifense. Dun- can V. Commonwealth, 13 Ky. L. R. 195, 16 Southwest- ern 584. (/) Improper statement of prosecuting attorney cured by court's rebuke. The defense was an alibi, and the testimony of de- fendant and his wife being that they were at his father- in-law's at the time the crime was charged to have been committed, any error in allowing the prosecuting attor- ney to comment on the failure of the defense to call the father-in-law as a witness, was rendered harmless by the court's stating, at the time, that it was an improper sub- ject for his remarks. People v. Smith, 106 Mich. 431, 64 Northwestern 200; People v. Grant, 111 Mich. 346, 69 Northwestern 647, 3 D. L. N. 751; People v. Lueders, 126 Mich. 440, 85 Northwestern 1081, 8 D. L. N. 81. (ife) Prosecuting attorney stating that witness would be corroborated by one who was absent. Where, in a prosecution for embezzlement, the jury found defendant guilty of embezzlement of a certain sum, which sum was not proved by the testimony of a certain witness, the statement of the prosecuting at- 217 § 57 Errors in Criminal Proceedings. torney that such witness would be corroborated by a certain absent witness was not prejudicial to defendant. People V. Messer, 148 Mich. 168, 111 Northwestern 854, 14 D. L. N. 157. (/) Application by counsel to witness of terms, "smart aleck," artd to documents, as prepared by a "shys- ter" or "black-leg." Where counsel for the territory in a criminal trial em- ploys opprobrious terms expressive of contempt for the answer made by a witness, as a "smart aleck," and refers to documents offered in evidence as having been pre- pared by a "shyster" or "jack-leg;" such conduct de- serves the rebuke of the court, but does not necessarily constitute reversible error. Harmon v. Territory, 15 Okla. 147, 79 Pacific 765. (m) Remark by attorney general that defendant was "no geranium." On a prosecution for murder, a witness having testi- fied that the deceased's character was bad, the attorney general remarked that he presumed that he would not be allowed to show the defendant was "no geranium," whereupon the court stated that the law presumed the defendant's character good. Held, that in view of the court's statements the remark was not prejudicial. Ray V. State, 108 Tenn. 282, 67 Southwestern 553. (w) Remark by attorney general that the people would not submit to an acquittal. It is highly reprehensible for the attorney general, in his argument, to suggest that the people would not sub- mit to an acquittal, but it is not reversible error. North- ington v. State, 82 Tenn. (14 Lea) 424. 218 The Trial— Evidence. §57 (o) Excoriation of prisoner by prosecuting attorney. A statement by a prosecuting attorney in his closing argument, after referring to the conviction, imprison- ment and pardon of the Chicago anarchists, that "if you sentence the prisoner to the penitentiary for hfe, it won't be five years 'till he will be let out on some excuse or pretext, and return him to enter on a new course of crime. This is the grand culmination of an epidemic of crimes that have been committed in this county." Held, not reversible error, as the evidence justified the verdict rendered. State v. Shawen, 40 W. Va. 1, 20 Southeast- ern 873; State v. Mooney, 49 W. Va. 712, 39 Southeast- ern 657. Remarks disparaging the character of accused. State V. Hamilton, 124 La. 132, 49 Southern 1004. (/>) Remark of prosecuting attorney incorrectly stating the law. A remark of the prosecuting attorney, in arguing to the jury, the effect of which, standing alone, and segre- gated from the context, was to incorrectly state the law, was not ground for reversal, where the jury were prop- erly instructed by the court, and the court certified that accused was not prejudiced by the language used. Rob- inson V. Commonwealth, 104 Va. 888, 52 Southeastern 690. (q) Remark by state counsel that bad feeling among some of the colored people supplied a motive for the killing. Where, on the trial of a negro for homicide, the evi- dence established a wanton attack on the deceased, in revenge for real or imaginary grievances previously suf- fered by defendant, a statement made by special counsel 219 § 57 Errors in Criminal Proceedings. for the state in argument that the state had not at- tempted to inject racial questions into the case, and had shown that defendant went North and returned with a changed and perverted nature, and that the unfortunate state of feeling which recently existed among some of the colored people show a motive for the killing, though erroneous, was without prejudice. Hooker v. State, 75 Ark. 67, 86 Southwestern 846. (r) Prosecuting attorney's remark against any man who would run a "blind tiger." Where, in a prosecution for unlawfully selling intoxi- cating liquors, the prosecuting attorney, in his closing argument in one case, said, in effect, that he would not believe any man on oath who would deliberately violate the law by running a blind tiger; that if he would violate the law in that respect he would not hesitate to swear a lie to get out of it; and, in another of the cases, stated that "a blind tiger man will swear a lie any time. This man (defendant) is not worthy of belief. Any man who will run a blind tiger will swear to a lie to beat the law," the language, while not commendable, was not reversible error. Reese v. State, 76 Ark. 39, 88 Southwestern 841. (j) Statement by prosecuting attorney that case on trial was unparalleled for cruelty. In a prosecution for murder, a statement by the prose- cuting attorney, in argument, that the case was so cruel and barbarous that it was without a parallel in the his- tory of crime, was merely an expression of his opinion of the gravity of the crime, as shown by the evidence, and was not cause for reversal. Byrd v. State, 76 Ark. 286, 88 Southwestern 974. 220 The Trial— Evidence. §57 (t) Remark by prosecuting attorney deriding accused's counsel, "Why, this child talks to yon as if you were idiots." The prosecuting attorney, in argument to the jury, said, speaking of accused's attorney, "Why, this child talks to you as if you were a band of idiots." Held, that while it was not courteous language, it was not prejudi- cial to accused. People v. Patterson, 124 Cal. 102, 56 Pacific 882. (u) In action for rape, where defense sought to prove un- chastity, district attorney stated he could not do it. Where, on a prosecution for rape, after defendant's attorney had commenced to state what he assumed he could show as to the previous unchastity of the prosecu- trix, the district attorney remarked: "You know very well you could not show any such thing," the remark was no ground for reversal, since it could not have influ- enced the jury. People v. Beng, 130 Cal. 159, 62 Pacific 404. (v) Remark by district attorney that it would have been a good thing for the community had defendant been lynched. Though it was a gross and reprehensible breach of duty for the district attorney to say in argument to the jury, that it would have been a good thing for the com- munity if defendant had been lynched, the remarks were not cause for reversal of a judgment of conviction. Peo- ple V. McRoberts, 1 Cal. App. 25, 81 Pacific 734. (to) Remark by prosecuting attorney that witness should have been permitted to testify in French. On a trial for murder, remark of prosecuting attorney 221 § 57 Errors in Criminal Proceedings. to a state's witness, who had been directed to testify in English, that it was an injustice not to let him testify in French, whether intended as a criticism of the court or by way of sympathy to the witness, was not prejudicial to accused. State v. Halliday, 111 La. 47, 35 Southern 380. (x) Counsel for state telling jury that on former trial jury were out not more than a minute to find a verdict of guilty. Counsel for the state told the jury that on a former trial, the jury "were not out more than one minute in their deliberations, when they returned into court with a verdict of guilty." The district attorney persisted in reading to the jury as evidence against the accused, written evidence of a witness which had not been put in. Held, on appeal, that where the guilt of the accused is clearly shown by his own testimony, a mere error in the proceeding will not call for a reversal. Lamar v. State, 65 Miss. 93, 3 Southern 78; Brown v. State, 81 Miss. 143. 33 Southern 170. (y) Remark by prosecuting attorney that defendant's name was written in the walls of the penitentiary. Where, on a prosecution for crime, the evidence showed that defendant had been formerly convicted of crime, had served a term in the penitentiary, the remarks of the prosecuting attorney that defendant's name was written in the walls of the penitentiary did not constitute prejudicial error. State v. Boyd, 178 Mo. 3, 76 South- western 979. 222 The Trial— Evidence. §57 (s) Remark of county attorney that he was willing the jury should be charged on aggravated assault. In his closing address the county attorney stated that, while he did not believe the evidence or law required it, yet he was willing the jury should be charged on aggra- vated assault, because the court, on criminal appeals, had reversed cases on mere technicalities, and to prevent the possibility in this case, he was willing the charge should be given. Held, not error where the record failed to show gravity of assault. Jones v. State (Tex. Cr. App.), 46 Southwestern 933. {aa) On a trial for robbery, prosecuting attorney stating to the jury that he believed the defendant to be guilty. On a trial for robbery, the prosecuting attorney stated to the jury that he believed the defendant guilty, and that he would not tell that he was guilty if he was not guilty. There was no charge asked of the court to with- draw these remarks or to disregard them. Held, that the remarks, though improper, were not of sufficient im- portance to require a reversal. Hawkins v. State (Tex. Cr. App.), 71 Southwestern 756; Straub v. State, 27 O. C. C. R. 50. Calling God to witness his sincerity in such belief. State v. Baker (Mo. Sup.), 152 Southwestern 46. {bb) Prosecuting attorney telling jury that if they ac- quitted it would cause more murder. In a prosecution for murder, the prosecuting attorney told the jury that if they acquitted defendant it would cause more murders, and, though defendant's counsel objected and requested that the language be withdrawn and the jury be instructed not to consider the same, were 223 § 57 Errors in Criminal Proceedings. overruled, no special charge was requested requiring the jury to disregard the argument. Held, not to be suffi- ciently prejudicial to authorize reversal. Tardy v. State, 46 Tex. Cr. Rep. 214, 78 Southwestern 1076. (cc) In a murder case, prosecuting attorney, pointing to the widow and children of the victim, said, "This is the mob defendant feared." On a prosecution for murder, there was evidence that defendant remained in a corncrib the night of the homi- cide, alleging that his wife feared a mob would come after him if he remained at home, and counsel for the state, during his argument to the jury, pointed to the widow and children who were in the courtroom, said : "There is the mob defendant feared, as the reason for his remaining all night away from his home and con- cealed in the crib." Held, that if such remark was error it was not reversible, no instruction having been re- quested with reference to it. Yancy v. State, 48 Tex. Cr. Rep. 166, 87 Southwestern 693. {dd) Remark of prosecuting attorney that he knew two truthful boys who were witnesses for the state. A remark of a prosecuting attorney that he knew two of the state's witnesses, and that they were truthful boys, is without prejudice, unless they testified to facts mate- rial to the state. Alexander v. State, 40 Tex. Cr. Rep. 395, 49 Southwestern 229, SO Southwestern 716. {ee) Remark of prosectiting attorney that it tvas strange defendant brought no one to impeach a certain witness for the state. Error in the remark of the prosecuting attorney that it was strange that defendant brought no one to impeach 224 The Trial— Evidence. §57 the character of a certain witness for the state, when such witness had testified at a former trial, is not ground for reversal, when it was provoked by remarks of de- fendant's counsel attacking such testimony, and by cross- examination as to whether such witness had not testified at a former trial and been impeached. Matthews v. State, 41 Tex. Cr. Rep. 98, 51 Southwestern 915. {ff) Prosecuting attorney stating to jury that a witness had married the daughter of D. Where a private prosecutor, in the course of his argu- ment to the jury, alluded to the fact that one of the witnesses had married the daughter of D, whom, he re- marked, the jury well knew; such remark was not cal- culated to give any particular weight to the testimony of the witness, and was not therefore, per se, injurious to defendant. Newcomb v. State, 49 Tex. Cr. Rep. 550, 95 Southwestern 1048. {gg) Prosecuting attorney describing offense as "the most tragic crime ever perpetrated in this county," etc. On a prosecution for murder, a reference by the prose- cution in argument to the crime as the "most tragic crime ever perpetrated in this country," and to accused, "He is a murderer," is not cause for reversal, where ac- cused was convicted of manslaughter. Carroll v. State, 71 Ark. 403, 75 Southwestern 471 ; State v. Craine, 120 N. C. 601, 27 Southeastern 72; State v. Horner, 139 N. C. 605, 52 Southeastern 136. {hh) In a homicide case, remark of district attorney, that the society of "Plighbinders" was an "alibi factory." Where, in a homicide case, the theory of the prose- cution was, that the killing was the result of an order of 225 Errors — IS. § 57 Errors in Criminal Proceedings. a Chinese society known as "Highbinders," and there was evidence that a third person belonged to the so- ciety, and that accused was employed by him, and that accused, in attempting to prove the defense of alibi, at- tempted to show that he was with the third person at his residence, the argument of the district attorney that the society was an "alibi factory," and that if another person named had been a member, and accused and his associate "Highbinder" had killed him on the night of the homicide, and they had gone back from the place of the homicide to the residence of the third person, and had reported to him and given an account of what they had done, accused would not be retained in the employ of the third person for other murders, etc., was not re- versible error. People v. Yew Foo (Cal. App.), 89 Pa- cific 450. (ii) Remarks by district attorney to witness to prove the good character of decedent. In a prosecution for homicide, the district attorney stated in his argument, in reference to a witness to prove the good character of the decedent, that witness, after having had occasion to speak and investigate the charac- ter of the deceased, etc. The witness had testified that from his relationship and acquaintance with the deceased, he felt prepared to speak as to deceased's reputation. Held, that error, if any, in the remarks of counsel was not prejudicial. Mitchell v. State (Tex. Cr. App.), 100 Southwestern 930. (;■/) In a prosecution for liquor violation, argument of county attorney that accused made sale and was in the business. In a prosecution for violation of the local option liquor 226 The Trial— Evidence. §57 law, the argument of the county attorney that the evi- dence not only showed that the defendant made the sale in question, but that the defendant was engaged in the sale of intoxicating liquors, was harmless error, though there was no evidence that defendant was engaged in the sale of intoxicating liquors. Henderson v. State (Tex. Cr. App.), 101 Southwestern 208. (kk) Statement by district attorney that handcuffs the sheriff used were not larger than what accused had in his pocket. The statement of the district attorney, in his argu- ment to the jury concerning the handcuffs the sheriff used when he arrested accused, that they were not larger than a good many things that accused carried in his pockets, could not be considered prejudicial error where it did not appear whether the statement was made in reply to criticisms of the sheriff, or in explanation of suggestion by counsel or court. Stoddard v. State (Wis. Sup.), 112 Northwestern 453. (//) Remarks by prosecuting attorney, "Think, gentlemen of the jury, think if it were you, and your wife made a widow," etc. In a prosecution for murder, a prosecuting attorney, in his argument to the jury, said, "It grieves and shocks us when this is a stranger; but think, gentlemen of the jury, think if it was you, and your wife made a widow and your children orphans." Held, that there was no prejudicial error in not excluding the remark from the jury. Kinslow v. State, 85 Ark. 514, 109 Southwestern 524. 227 § 57 Errors in Criminal Proceedings. (mm) Irrelevancy of speech^ or reference to extraneous matters in argument of counsel. Irrelevancy of speech or reference to extraneous mat- ters in argument of counsel not objected to at the time, and not such as to impugn the fairness of the trial, will not require a new trial. Marman v. State, 133 Ga. 76, 65 Southeastern 146. (nn) Comment of state's counsel on excluded testimony that accused had kept a house of ill-fame and a gambling house. In a murder case, where there was no issue of self- defense, and the evidence showed that accused shot and killed decedent, the comment of the county attorney on evidence that accused had kept a nergo house of ill- fame and a gambling house, which evidence had been excluded as incompetent, was not ground for reversal, where the jury gave the accused the minimum punish- ment for manslaughter. Hart v. State (Tex. Cr. App.), 121 Southwestern 508. (oo) Inaccurate statement by state's attorney that proof showed accused tried to cut prosecutor's throat. Where, on a trial for assault with intent to kill by cutting with a knife, the evidence showed that accused cut prosecutor nine times, once after he was down, and continued the assault until a third person interfered, the inaccuracy of the argument of the state's attorney that the proof was, that accused tried to cut prosecutor's throat after he was on the ground, was not ground for reversal. Derrick v. State, 91 Ark. 237, 122 Southwest- ern 506. 228 The Trial— Evidence, §57 (/>/>) In murder trial statement by prosecuting attorney that accused "shot that man deliberately and with malice." In a trial for murder, a statement of the prosecuting attorney in his argument that he believed that accused "shot that man, leaning against that building, deliberate- ly and with malice," was not prejudicial error, where the opinion was drawn from the evidence, and not a mere statement of a belief based upon something outside of the evidence. State v. Kinkley, 81 Kans. 838, 106 Pacific 1088. That killing was deliberate, preconceived and cold- blooded, etc. Davis v. State (Tex. Cr. App.), 124 South- western 104. (qq) In a prosecution for cutting, prosecuting attorney saying in argument that prosecuting witness knew accused was not honest, etc. In a prosecution for malicious cutting with intent to kill, where the cutting occurred in a poker game, during which accused gave prosecuting witness a check for losses, and afterwards told him that he would not pay it, if prosecuting witness refused to continue playing; the court permitted the prosecuting attorney, in argument, to say that when accused said he would not pay the check if the playing was not continued, prosecuting wit- ness knew, from his long acquaintance with accused, that he was not honest or courageous. Held, that if it was improper to permit the remarks, the error was too trivial to be reversible. Oldham v. Commonwealth (Ky. Ct. App.), 125 Southwestern 242. (rr) Statement by district attorney that a certain person assisted accused to commit the robbery. In a robbery prosecution, where the evidence showed 229 § 57 Errors in Criminal Proceedings. and accused admitted that someone ran from behind a car and struck the person robbed, a statement by the district attorney, in argument, that a certain person was the man who assisted accused in committing the robbery, could not have prejudiced accused, it being immaterial whether anyone assisted in committing the robbery, if accused was guilty. Chancey v. State (Tex. Cr. App.), 124 Southwestern 426. (ss) In the proseaition of a negro for carrying a pistol, argument of county attorney not to turn accused loose for certain tvhite men. In a prosecution of a negro for carrying a pistol, where three witnesses impeached the veracity of complaining witness and his wife, who testified, and one witness tes- tified that accused's reputation was very good, and that he was one of the best negroes on the creek, and accused testified that he did not carry the pistol, argument of the county attorney that the jury would not turn accused loose because certain white men wanted him turned loose, that in nine-tenths of the cases defended in the county, the juries were asked to turn the defendants loose, be- cause some white men wanted them turned loose, and as long as they parade white men before the juries for that purpose counsel was going to tell the juries about it, was not ground for reversal, especially where there was no special charge requested to disregard the argu- ment. Jones v. State (Tex. Cr. App.), 125 Southwest- ern 914. {tt) Statement by prosecuting attorney that he had seen defendants convicted on weaker testimony, etc. It was not prejudicial error in a larceny trial for the prosecuting attorney to state in his argument that he had 230 The Trial— Evidence. §57 seen defendants convicted on weaker testimony, and never knew but one to be acquitted on as strong testi- mony, and people said that they did not see how the jury did it. Cravens v. State (Ark. Sup.), 128 Southwestern 1037. (mm) Statement by prosecuting attorney that prosecutrix had been corroborated by the testimony of two witnesses. A statement of the prosecuting attorney, in his argu- ment to the jury, that the prosecutrix had been corro- borated by the testimony of two women, in the state- ment made by her that accused had a dog with him on the occasion of the assault on prosecutrix, was not ground for reversal, though the statement erroneously stated the testimony of the two women. Poe v. State (Ark. Sup.), 129 Southwestern 292. {w) In a prosecution for conspiracy discussion by state's attorney of the insolvency of defendant. In a prosecution of a conspiracy to obtain money by false pretenses, a discussion by the state's attorney of the insolvency of the defendant, as an element in fixing punishment, though error, is harmless. People v. Smith, 147 111. App. 146. (wzw) Argument of prosecution for infliction of death penalty for life imprisonment presented possi- bility of pardon or parole. The argument of the prosecutor that the death pen- alty ought to be inflicted because, in the event of life imprisonment, there was a possibility that accused might in time be pardoned or paroled, while improper, is not ground for reversal where, under the record, there is no 231 § 57 Errors in Criminal Proceedings. reasonable probability that the verdict of conviction would have been otherwise had accused's objection to the argument been sustained. State v. Jenkins (Iowa Sup.), 126 Northwestern 689; Jacobs v. State (Miss. Sup.), 60 Southern 72Z. (a'.t) In a prosecution for attempted arson, statement by state's attorney, that buildings had been burned, and it was his duty to act. In a prosecution for attempting to extort money by threats to burn another's property, the state's attorney stated, in his concluding argument, that fires had oc- curred in the county, buildings had been burned, and that it was his duty to act in this matter. Held, that in the absence of anything in the record showing that the jury was influenced by such remark to accused's injury, it was not reversible. Toomer v. State, 112 Md. 285, 76 Atlantic 118. (■yy) In a trial for rape, remark by district attorney, "You have there that wretched zvretch." Accused, in a trial for rape, was not shown to be in- jured by the remark of the district attorney in argu- ment, "You have there that wretched wretch," there being no statement of facts showing in what connection the remark was made, and whether it was justified or not. Hall V. State (Tex. Cr. App.), 126 Southwestern 573. (22) hi the prosecution of a negro for carrying concealed weapons, remark of counsel that negroes, as a race, are abotit all alike, are unreliable, etc. In the prosecution of a negro for carrying concealed weapons, remarks of counsel that negroes, as a race, are 232 The Trial— Evidence. §57 about all alike; they are unreliable, and that whenever they got into trouble, if you would let them sleep over it and get together, that you could not do anything with them, are not of sufficient importance to require a re- versal, especially in the absence of requested instructions in regard to the matter. Johnson v. State (Tex. Cr. App.), 127 Southwestern 559. {aaa) Remark by district attorney, "If you people want to shroud this in darkness, and refuse to turn on the light, I can't help it." After sustaining an objection to the course of the dis- trict attorney, he remarked to defendant's counsel, and in discussing the matter before the court, "If you people want to shroud this in darkness, and refuse to turn on the light, I can't help it; but I only want to disclose the whole transaction to the jury, and have all the light thereon that can be had." Held, that the remarks were not of such a prejudicial character as to authorize a re- versal of the conviction. Boswell v. State (Tex. Cr. App.), 127 Southwestern 820. {bbb) Statement by prosecuting attorney that case might have been entitled. State against Brewing Com- pany, by accused." On a trial for seUing liquor without a license, argu- ment of prosecuting attorney that case might have been entitled, "State against Brewing Company, by accused." Schindel v. State (Ind. Sup.), 83 Northeastern 67. (ccc) Where both accused and prosecutor were in the liquor business, statement by prosecuting at- torney that they were morally on a parity. Where accused and prosecutor were both engaged in 233 § 57 Errors in Criminal Proceedings. the liquor traffic, the language of the prosecuting attor- ney, in his argument, that accused and prosecutor were, from a moral standpoint, on a parity, was not reversible error. Lee v. Commonwealth, 142 Ky. 742, 135 South- western 315. (ddd) Prosecuting attorney likening accused to a wild beast in quest of prey. Where the evidence showed that accused had armed himself in the manner described by the prosecuting at- torney, in his argument to the jury, a statement of the attorney, in his argument, wherein he likened accused unto a wild beast in search of prey, though a strained illustration, was not reversible error. Lee v. Common- wealth, 142 Ky. 742, 135 Southwestern 315. (eee) In a prosecution for uxoricide, argument of counsel that the jury did not know but that wife had accused defendant of undue intimacy with some other woman. In the prosecution of defendant for killing hi? wife, argument by counsel that the jury did not know but that the wife had accused defendant of being too intimate with some other woman, thus explaining the motive, held not so harmful as to require reversal. Davis v. State (Tex. Cr. App.), 154 Southwestern 550. (///) Prosecuting attorney calling accused a horse thief. Where accused's counsel admitted in the opening state- ment that accused had been convicted of horse stealing, any error of the prosecuting attorney, in argument, in speaking of accused as a horse thief would not justify a reversal. State v. Jones (Mo. Sup.), 155 Southwestern 33. 234 The Trial— Evidence. §57 (999) Impassioned argument of prosecuting attorney. Impassioned argument by a prosecuting attorney was not ground for reversal, unless unwarranted by the evi- dence and probably contributing to the result. People v. Sharp (Mich. Sup.), 127 Northwestern 758, 17 D. L. N. 767. (hhh) Remark by prosecuting attorney, "It is common knowledge that people burn buildings for the insurance." While, in a prosecution for burning property to de- fraud an insurance company, the prosecuting attorney's remark, "It is common knowledge that people burn build- ings for insurance," was reprehensible, yet in view of the court's correction the defendant was not prejudiced thereby. People v. Stewart (Mich. Sup.), 127 North- western 816, 17 D. L. N. 775. (m) Statement by commonwealth's attorney that plea of insanity had been manufactured by accused's counsel. Argument by commonwealth's attorney that in a pros- ecution for homicide, defendant's plea of insanity had been manufactured by his counsel, while improper was not prejudicial. Porter v. Commonwealth, 145 Ky. 548, 140 Southwestern 643. (///) Special prosecutor saying that accused was guilty of embezzlement not charged in the information. In a complicated embezzlement case, where the spe- cial prosecutor remarked, in his opening statement, that accused was guilty of an embezzlement not charged in the information, and no evidence was offered to support 235 § 57 Errors in Criminal Proceedings. the statement, it did not, in the absence of a showing of prejudice, constitute reversible error. State v. Boone (Wash. Sup.), 118 Pacific 46. (kkk) Where accused wished to take his sick mother's testimony at her home, remark by prosecuting attorney, "I hate to call counsel for grand- standing before the jury," etc. It was not reversible error for the prosecuting attor- ney in objecting to accused's request that the jury be permitted to take his mother's testimony at her home, ■where she was confined by illness, to state, "I hate to call counsel for grandstanding before the jury, but he well knows this is improper . . . it is made for no other purpose than to influence the jury," especially in the absence of a request by accused for an instruction as to the efifect upon the jury of such remarks. State V. Mallahan (Wash. Sup.), 118 Pacific 898. (///) Argument of state's attorney arraigning accused based on attorney's opinion of the effect of the evidence. Argument of state's attorney, consisting of a personal arraignment of accused, based on the record and the expression of that attorney's opinion as to the efifect of the evidence, was not prejudicial. Morris v. State (Ark. Sup.), 147 Southwestern 74. (mmm) Remark of district attorney that men sent to the penitentiary seldom serve their sentences. Improper argument of the district attorney, in a homi- cide case, that men sent to the penitentiary seldom serve their sentences, was not ground for reversal. Wachter 236 The Trial— Evidence. §57 V. People (Col. Sup.), 124 Pacific 183; Moore v. State, 10 Ga. App. 805, 74 Southeastern 315. (nnn) Remark of state's counsel that one of the witnesses was an extraordinary man. A remark of counsel for the state to a witness, that the witness was an extraordinary man, though improper, was not reversible error. Williams v. State (Tex. Cr. App.), 148 Southwestern 763. {ooo) Counsel referring disparagingly to defendant's con- duct towards his wife and children. In a prosecution for homicide defendant held not prej- udiced by argument of counsel with reference to defend- ant's conduct toward his wife and children, nor by the court's refusal of an instruction withdrawing such argu- ment as to the wife's divorce. Clayton v. State (Tex. Cr. App.), 149 Southwestern 119. (ppp) Argument of prosecuting attorney assuming that defendant admitted the killing. The argument of the prosecuting attorney assuming that defendant admitted the killing was not prejudicial, where the only defense was insanity of defendant. State V. Olsen, 88 Kans. 136, 127 Pacific 625. {qqq) Prosecuting attorney relating how a band of mountain men shot a judge, attorney, jurors, stenographer, etc. The argument of the district attorney in a homicide case with reference to a band of mountain men arming themselves and shooting a judge, attorney, jury, stenog- rapher, etc., held not prejudicial to accused. Truax v. Commonwealth, 149 Ky. 69, 149 Southwestern 1033. 237 § 57 Errors in Criminal Proceedings. (rrr) State's attorney calling accused a "vile character" and a "whoremonger." That the prosecuting attorney, in addressing the jury, called the defendant a "vile character" and a "whore- monger," was harmless, where the evidence strongly tended to prove that the defendant was guilty of conduct justifying the statement. Leonard v. State (Ark. Sup.), 153 Southwestern 590. {sss) In a prosecution of a state senator for bribery, statement of district attorney that he wished he could tell the jury the advice the governor gave accused. Accused, a state senator, charged with bribery, could not have been harmed by a statement of the district at- torney, in argument, referring to a remark by accused's counsel as to a conversation between the complaining witness and the governor, that he wished he could tell the jury the advice the governor gave to accused, where, on objection, the court stopped the argument and the remark was withdrawn. People v. Stillwell, 142 N. Y. Supplement 628, 81 Misc. Rep. 456. {ttt) Remark of district attorney that there should he speedy trials and prompt convictions or mob law would result. In a prosecution for rape, a remark by the prosecuting attorney that there should be speedy trials and prompt convictions or mob law would result, while improper, held not to require a reversal of the conviction. Valdez v. State (Tex. Cr. App.), 160 Southwestern 341. 238 The Trial— Evidence. §57 (mmm) Statement of district attorney that accused's code- fendant had been convicted of the same offense and sentenced to death. Accused held not prejudiced by an improper statement of the district attorney, in argun^ent, that accused's co- defendant had been convicted of the same offense and had been sentenced to suffer the death penalty. Stewart V. United States, 211 Federal 41. (vvv) Prosecuting attorney making statement in order to make the testimony of a witness clear. An improper statement of the prosecuting attorney, because outside of the record, but made to make the testimony of a witness clear, held not prejudicial to ac- cused. People V. Scott, 261 111. 165, 103 Northeastern 617. {www) Prosecuting attorney stating that accused had served a term of imprisonment. In a criminal prosecution, improper remarks of the district attorney that accused had served a term of im- prisonment is harmless, where a statement to the same effect had inadvertently crept into the case before the argument People v. Moncuso, 23 Cal. App. 146, 137 Pacific 278. {xxx) Argument of county attorney, "Think of awaking in the night and finding a man like that {defend- ant) in your room with a gun like that" {re- volver). In a prosecution for burglary, the argument of the county attorney, "Think of awaking in the night and finding a man like that (defendant) in your room, with 239 § 57 Errors in Criminal Proceedings. a gun like that," (pointing to revolver), while exceeding proper argument, was not prejudicial. ' State v. Perry (Iowa Sup.), 145 Northwestern 56. {yyy) Statement of district attorney that defendants were generally known in their community as desperate men.. A statement of the district attorney, in argument, that defendants were generally known as desperate men in their community, held not prejudicial when provoked by counsel for defendant, and the court properly instructed thereon. State v. Major, 134 La. 774, 64 Southern 710. {z2z) In the examination of jurors, remark of district at- torney that defendant had no case. During the examination of jurors a remark of the dis- trict attorney that defendant had no case, intended only to imply that it was the state's case, and that it had the burden of proving it, together with the statement that he had not meant to insinuate that defendant had no de- fense, held harmless. State v. Campbell, 134 La. 828, 64 Southern 765. (aaaa) Remark by state's counsel that defendant "made that statement, and the defense had the oppor- tunity to deny it, and it stands uncontradicted." A remark of counsel for the state that defendant' "made that statement and the defense had the oppor- tunity to deny it, and it stands uncontradicted," is not a comment on defendant's failure to testify, within the meaning of the General Code, sec. 13661, but refers to the defense, and the court having promptly instructed 240 The Trial— Evidence. § 58 the jury to disregard the remark, and counsel having withdrawn it, no prejudice resulted. Diegel v. State, 33 Ohio Cir. Ct. Rep. 82; judgment affirmed 86 O. S. 310, 99 Northeastern 1125; Davis, C. J. dissenting. (bbbb) District attorney referring disparagingly to a mem- ber of the court of criminal appeals. Misconduct of a district attorney in making disparaging remarks in regard to a member of the court of criminal appeals, in his closing address, was not prejudicial to accused or ground for reversal. McGowen v. State (Tex. Cr. App.), 164 Southwestern 999. (cccc) In a trial for keeping a disorderly house, remark of prosecuting attorney, directing attention to ac- cused's diamonds, every glitter of -which {he said) represented a lost soul. Remark of the prosecuting attorney, in a trail for keeping a disorderly house, directing the attention of the jury to accused's diamonds, stating that every glitter represented a lost soul, held not reversible error. Hearne v. State (Tex. Cr. App.), 165 Southwestern 596. Sec. 58. Limiting counsel's time for argument. (a) Court limiting argument to specified time. Where accused's counsel did not use all of the time given him for argument, he was not injured by the court's action in limiting the argument to a certain time. People v. Van Alstyne, 157 Mich. 366, 122 North- western 193, 16 D. L. N. 392. 241 Errors — 16. § 59 Errors in Criminal Proceedings. Instructions to the Jury. Sec. 59. Miscellaneous instructions to jury, (a) Charge embodying an abstract proposition. The giving of instructions which are but abstract propositions of law, unless it appear that they had some effect on the jury, are harmless. Bate v. People, 3 Gil- man (8 111.) 644; Hays v. People, 127 111. App. 299. (b) Modification of a correct charge. It is no ground of error that the court modified a cor- rect ruling, where it is apparent that there was no error in the modification. Needham v. People, 98 111. 275. (c) Proper cured previous questionable charge. If an instruction, possibly erroneous by itself, be con- sidered as having a tendency to withdraw the attention of the jury from some vital matter, it may be cured by another which clearly and fully states the rule. Duncan V. People, 134 111. 110; Clarke v. State, 32 Ind. 67. {d) Erroneous charge on the doctrine of self-defense. An instruction against the accused as to the law of self-defense is not ground for a reversal, though ab- stractly erroneous, may not afford a ground for a reversal of the conviction, where no case of self-defense is shown by the evidence. Panton v. People, 114 111. 505; State v. Lavin, 64 W. Va. 26, 60 Southeastern 888. In homicide case. Freeman v. Commonwealth, 21 Ky. L. Rep. 639. 103 Southwestern 274. 242 The Trial — Instructions to the Jury. § 59 (e) Erroneous charge not affecting the verdict. Where the court can see from the record that the evidence is so overwhelmingly against an accused that, had the jury been correctly instructed, they must still have found against him, a judgment of conviction will not be reversed for error of instruction. Hoge v. People, 117 111. 35; Zinn v. People, 111 111. 49; Neddy v. State, 16 Tenn. (8 Yergason) 249. (/) Instruction not based on any evidence in the case. Where the accused is not prejudiced by the giving of the instruction not based on any evidence in the case, he can not have a reversal for such error. Carroll v. People, 136 111. 456; Montag v. People, 141 111. 75; State v. Bulling, 105 Mo. 204, 15 Southwestern 367, 16 South- western 830. (g) Subsequent oral instruction as to the form of verdict of manslaughter. The court will not reverse merely because, after giv- ing a written instruction as to the form of the verdict upon a conviction of murder, the court gave an oral instruction as to the form upon a conviction of man- slaughter. Smith V. People, 142 111. 117. (h) Inadvertently confounding defendant for prosecution in charge to the jury. Inadvertence of the court in instructing in a criminal case that the burden is on "defendant" to prove every material averment of the indictment is harmless; the following instructions stating that defendant was pre- sumed to be innocent, and could not be convicted unless the state proves his guilt beyond a reasonable doubt, 243 § 59 Errors in Criminal Proceedings. and reciting the facts which the state must prove to warrant a conviction, covering every material averment in the indictment, such clerical error is harmless. White V. State, 2,7 Ind. App. 95, 76 Northeastern 554. Twice using the word "defendant" when "deceased" was in- tended. Bonds V. State (Tex. Cr. App.) 160 South- western 100. (i) Instruction informing jury that accused stood mute. It is not commendable practice to inform the jury that defendant stood mute, and the court entered a plea of not guilty for him, but such an irregularity will not warrant a reversal on that ground, where the substantial rights of the defendant are not prejudiced. Henning v. State, 106 Ind. 386, 6 Northeastern 803, 7 Northeastern 4; Sample v. State, 104 Ind. 289, 4 Northeastern 40. (/) Instruction on larceny and conviction of burglary. The giving of an instruction, whether erroneous or not, as to larceny, is not available for a reversal of the conviction, where it appears that, while defendant was tried under an indictment charging both burglary and larceny in different counts, he was convicted only of burglary. Hart v. State, 149 Ind. 585, 49 Northeastern 580. {k) Improper testimony which the court instructed the jury to disregard. The admission of incompetent testimony is not ground for reversal, where the court has subsequently instructed the jury that they must not consider it. Jackson v. Commonwealth, 7 Ky. L. Rep. (abstract) 227; State V. McCarty, 17 Minn. 76 (Gil. 54). 244 The Trial— Instructions to the Jury. § 59 (/) Instruction erroneously employing "and" for "or." The fact that the court, evidently by inadvertence, used the word "and" instead of "or," in an instruction, was not prejudicial, as the idea which the court manifestly intended to convey was expressed, with precision, in a number of places in the instructions. Commonwealth v. Stout, 14 Ky. L. Rep. (abstract) 576. (m) Erroneous instruction as to the quantity of liquor sold. The error, if any, in instructing the jury to find de- fendant guilty, if he had sold liquor "in any quantity," instead of specifying a retail quantity, was harmless, as the only proof as to quantity was that defendant had sold one-half pint of liquor. Taylor v. Commonwealth, 23 Ky. L. Rep. 1466, 65 Southwestern 450. (n) Erroneous instruction regarding sale of cider without a license. Where, in a prosecution for selling cider without a license, in violation of revenue laws, c. 100, sec. 1, pro- viding that no person shall sell or expose for sale spirituous or intoxicating liquor, except under certain exceptions prescribed, defendant did not claim to have sold the cider under a license, and did not come within any of the exceptions, an instruction that a sale of all- cider, unless under a license, was prohibited, while erroneous, was not prejudicial to defendant. Common- wealth v. McGrath, 185 Mass. 1, 69 Northeastern 340. (o) Instruction that unanswered questions stand as an- swered in the negative or as though not asked. Where, on a trial for seduction, witnesses for accused 245 § 59 Errors in Criminal Proceedings. declined to answer questions, whether they had ever had sexual intercourse with the prosecutrix, and there was no evidence of such intercourse, a charge that the re- fusal of the witnesses to answer should stand as if the questions had not been asked or as if answered in the negative, though erroneous, standing by itself, could work no harm in the absence of any evidence of the fact of such intercourse. People v. Brewster, 27 Mich. 134. (/>) Charge mentioning prosecutrix as "the little girl." That the court, in its charge, on a prosecution for statutory rape, spoke of the prosecutrix as "the little girl," if error, was harmless. People v. Colbath, 141 Mich. 189, 104 Northwestern 633, 12 D. L. N. 446. {q) Charge inadvertently misstating part of the testimony. A conviction will not be reversed because the court inadvertently misstates a part of the testimony, his statements not being challenged at the time, and not apparently prejudicial. People v. Caldwell, 107 Mich. 374, 65 Northwestern 213. (r) Instruction that the matters for the jury were "cold, plain questions of fact." In an instruction that the matters for the jury were "cold, plain questions of fact," the accused was not prej- udiced by the use of the adjectives. People v. Wells, 112 Mich. 648, 71 Northwestern 176, 4 D. L. N. 141. {s) Additional instruction given in the absence of de- fendant's counsel. The fact that the court recalled the jury and gave ad- ditional instructions in the absence of defendant's coun- sel, is not reveVsible error, where it appears that the ad- 246 The Trial — Instructions to the Jury. § 59 ditional charge was unobjectionable, was taken down by the reporter, and appears of record. People v. Robinson, 86 Mich. 415, 49 Northwestern 260. (f) Abstract instruction inapplicable to the facts of the case. An erroneous instruction as to an abstract proposition, having nothing to do with the matter in hand, is not sufficient ground for reversing a judgment of conviction. State V. Shippey, 10 Minn. 223 (Gil. 178); State v. Gut, 13 Minn. 341 (Gil. 315); Cole v. State, 120 Ga. 485, 48 Southeastern 156; Rodgers v. State (Miss. Sup.), 21 Southern 130; State v. Hartman, 182 Mo. 461, 81 South- western 1272. (m) Charge favorable to the accused. At the trial of an indictment for assault, with intent to do great bodily harm, the court refused a request to instruct the jury that, if they were not satisfied beyond a reasonable doubt that defendant was guilty of the in- tent charged, they might find him guilty of the assault only, and instructed the jury, in effect, that the evidence, if it tended to show anything, of which they were the exclusive judges, it tended to prove the crime charged or nothing. Held that, even if this was wrong, and we are inclined to think it was, defendant could not com- plain thereof, as its effect was to give him a chance of acquittal, to which he was not entitled. State v. Grear, 29 Minn. 221, 13 Northwestern 140. (v) Submitting issue of "giff as well as sale of intoxicat- ing liquors. Where, on a trial for violating the local option law, the evidence of the state showed a sale of intoxicating 247 ? § 59 Errors in Criminal Proceedings. liquors, and there was nothing to show that any liquors were given away, the error in submitting the issue of a gift, in connection with an issue of a sale, was not re- versible. State V. Fleetwood, 143 Mo. App. 698, 127 Southwestern 934. (w) Instruction that newspaper comments be kept from the jury. On the second or third day of a six days' murder trial, and before defendant had opened his case, the jury read newspaper comments adverse to defendant. The court being informed of this immediately gave instructions, in the presence of the jury, that newspaper comments should be kept from them. Held, that there was no ab- solute presumption of prejudice or injury from the re- ceipt of the articles, and that the circumstances showed none. State v. Jackson, 9 Mont. 508, 24 Pacific 213. {x) Instructions that distributions are not necessary to a prise distribution business. An exception to a charge for inconsistency, in effect that a distribution is not necessary to a prize distribu- tion business is not ground for reversal, where it appears from the defendant's evidence that he sold or gave away prize tickets under the promise of a drawing or distribu- tion of prizes. Territory v. Harris, 8 Mont. 140, 19 Pacific 286. {y) Instruction employing the phrase "incriminating cir- cumstances." In an instruction the trial court used this language, "And if the jury find, from the evidence, that all the incriminating circumstances upon which the prosecution relies for a conviction will as well apply to some other 248 The Trial — Instructions to the Jury. § 59 person or persons as to the defendant, or if such facts and circumstances are reconcilable with any reasonable theory or hypothesis other than the guilt of the defend- ant, or if such facts and circumstances, together with the direct evidence offered in this case, do not satisfy the minds of the jury, beyond any reasonable doubt, of the guilt of the defendant, then you should, by your verdict acquit him." Held, applying the rule that in- structions be considered together, that the use by the court of the expression, "incriminating circumstances," if error, was without prejudice to the prisoner. Davis V. State, 51 Neb. 301, 70 Northwestern 984. (s) Erroneous instruction on a point outside of the case. An erroneous instruction on a point entirely outside of the case as made by the evidence, and which could not influence the jury, furnishes no ground for reversal of a judgment otherwise correct. Caw v. People, 3 Neb. 357. {aa) Instruction containing an incorrect statement of a legal proposition. An incorrect statement of a legal proposition in a charge of the court to the jury, afifords no ground for reversal in a criminal case, when it is manifest that the error could not have prejudiced the defendant in main- taining his defense upon the merits, nor have affected the jury to the prejudice of the defendant. State v. Hummer, 73 N. J. L. 328, 65 Atlantic 249. (bb) Inaccurate language of instruction that could not have misled the jury. Whether in a case there should be a reversal for error in giving an instruction depends quite as much upon the 249 § 59 Errors in Criminal Proceedings. evidence before the jury to which the instruction might be appHed as upon the abstract accuracy of the instruc- tion. Hence, if it is apparent that the language of the instruction, though inaccurate, yet when applied to the evidence before the jury could not have misled the jury to believe that its duty was different from what it actually was, the inaccuracy can afford no ground for reversal. Hodge v. Territory, 12 Okl. 108, 69 Pacific 1077; Wickham v. State, 47 Tenn. (7 Coldwell) 525. (cc) Minimum fine cured error in charge to the jury. In a prosecution for practicing as a physician without a license, under acts 1883-4, p. 597, sec. 92, wherein the minimum fine imposed is $30, the court instructed the jury that the case was covered by code, sec. 574, which provides that, if any person engages in any busi- ness or profession, without a license, when a license is required by law, "if specific fine for so doing is pre- scribed, he shall pay a fine of not less than $30," etc. Held, that as the section under which the indictment was found provides a fine for its violation, the instruction was erroneous, but as the jury imposed the minimum fine, which is the same in both sections, the error was harmless. Whitlock v. Commonwealth, 89 Va. 337, 15 Southeastern 893. {dd) Instruction in prosecution for embezzlement upheld. The court instructed the jury that they should find defendant guilty, if he wrongfully and fraudulently used, disposed of, concealed or embezzled any property of the corporation, or "with intent to wrong and defraud said company, and thereby render it unable to meet its obli- gations." Held, that the instruction was not prejudicial 250 The Trial — Instructions to the Jury. § 59 to accused. Wadley v. Commonwealth, 98 Va. 803, 35 Southeastern 452. (ee) In a prosecution for accepting rebates, whether thete was a device to avoid the act of congress. Submitting to the jury, on a prosecution against a shipper for accepting rebates in violation of Elkin's Act, Feb. 10, 1903, c. 708, 32 St. 847 (U. S. Comp. St. Supp. 1907, p. 880), the question, whether or not there was a device to avoid the operation of the act, and to obtain the transportation at less than the published rates, did not prejudice the accused, where, under that act, any device or contrivance, secret or fraudulent in its nature, is requisite to the commission of the offense, by means of which transportation by a concession from the es- tablished rate was had, being sufficient to work a con- viction. Armour Packing Co. v. United States, 209 U. S. 56, affirming judgment 157 Federal 830, 85 C. C. A. 194. {ff) Defendant not prejudiced by the word "impression" in an instruction. • Defendant in a murder case can not be prejudiced by the use of the word "impression" in an instruction. "Moral" certainty is that degree of proof which the law requires of mor^l evidence. Moral certainty is described as a state of impression produced by facts, in which a reasonable mind feels a sort of coercion or necessity to act in accordance with it. It is also declared to be a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. People v. Lew Fook, 141 Cal. 548, 75 Pacific 188. 251 § 59 Errors in Criminal Proceedings- (gg) Instruction using the words "aids or abets" instead of "aids and abets" in the commission of a felony. A charge in a prosecution for homicide that one who aids "or" abets in the commission of a felony is a princi- pal, though erroneous, since he must aid "and" abet, is not prejudicial to defendant. People v. Padille, 143 Cal. 158, 76 Pacific 889. (hh) Miscalling the number of an instruction. Where, in a prosecution for homicide, the court in- structed that, if the jury found defendant guilty, but en- tertained a reasonable doubt as to whether he was guilty of murder or voluntary manslaughter, they should find him guilty of the latter offense only, and fix his punish- ment as defined in instructions 1 to 4, inclusive, while, as a matter of fact, the punishment was defined in in- struction 5, and the jury fixed defendant's punishment according to instruction S, they were not misled by the miscalling of the number of the instruction. Ward v. Commonwealth, 29 Ky. L. R. 62, 91 Southwestern 700. (u) Referring in charge to the trial of the assassin of President McKinley. On a trial for homicide committed in escaping from prison that the court referred to the trial of the murderer of President McKinley, to impress on the jury that a man charged with crime is entitled to a fair trial, is not prejudicial. People v. Flanagan, 174 N. Y. 356, 66 Northeastern 988. (;7) Wrong instruction, but in strict accord with defense relied upon. An instruction, if wrong, will be deemed harmless to 252 The Trial— Instructions to the Jury. § 59 accused, if it be in strict accord with the defense rehed upon by him. State v. Porter, 32 Or. 135, 49 Pacific 964. (kk) Inaccurate use of the words "or innocence" in charge to jury. Where the court warned the jury that they could not convict the defendant, unless satisfied from the proof that he was guilty beyond a reasonable doubt, and that, by reasonable doubt is meant that doubt en- gendered by the investigation of the whole proof, and an inability, after such investigation, to let the mind rest easily upon the certainty of guilt or innocence, with the statement that absolute certainty of guilt is not demanded to convict, but moral certainty is required as to every proposition requisite to constitute the offense, the use of the words, "or innocence," though inaccurate, could not have misled the jury to defendant's hurt. Ware v. State, 108 Tenn. 466, 67 Southwestern 853. (//) Instruction applying inapplicable principles of law. An instruction in a criminal case on principles of law having no application to the case, and which does not prejudice the defendant, is harmless error. Black v. State, 119 Ga. 746, 47 Southeastern 370. {mm) In prosecution for setting up a faro hank, charge extending offense to game by another name. Kentucky Statutes 1899, sec. 1960, makes it a crime to carry on a faro bank, or other contrivance used in bettmg, whereby money may be won or lost.. Sec. 1961 provides that a change of names of the games specified in sec. 1960, shall not prevent a conviction. Sec. 459 provides that there shall be no distinction between the construction of civil or penal statutes, but all shall be 253 § 59 Errors in Criminal Proceedings. construed to carry out the intention of the legislature, and by sec. 460, to promote their object. In a prosecu- tion for setting up a faro bank, the court instructed that a game played according to the rules of faro, unless so modified as to be "generally known or called by some other name than faro." Held, that as defendant could have been convicted, though the game played was bac- carat, if that game is substantially the same as faro, and the court should have charged the game was faro, if played according to its rules, though modified in an im- material particular, the charge given was more favorable to defendant than warranted, and he could not complain. Miller v. Commonwealth, 117 Ky. 80, 25 Ky. L. R. 1236, 77 Southwestern 682. Rehearing denied. 117 Ky. 80, 25 Ky. L. R. 1931. (wm) In a prosecution for larceny, instruction as to em- besslement. In a prosecution for larceny, error in instructing as to embezzlement is not ground for reversal, where defend- ant is convicted of larceny. State v. Soper, 207 Mo. 502, 106 Southwestern 3. (oo) Giving instruction requested by county attorney on paper containing his name and official title. Act, Feb. IS, 1901, sub. 4, provides that special charges requested shall be written and signed by the party, or his attorney, and delivered to the court, and that the court shall give each instruction as requested, or re- fuse to do so, or give the instruction with a modifica- tion, and shall mark or pass on each instruction, so that it shall distinctly appear what instructions were given, in whole or in part, and whether refused or modified, and Sess. Laws 1901, p. 173, requires all instructions 254 The Trial — Instructions to the Jury. § 59 given by the court to be filed, together with those re- fused, as a part of the record. Held, that requested in- structions must be signed merely for the purpose of identification, and used by the court in making up a charge, and the fact that the court permitted the name and official title of the county attorney to be placed on the instructions requested by him and given to the jury, was not reversible error. State v. Martin, 29 Mont. 273, 74 Pacific 725. {pp) Improper remark of prosecuting attorney cured by instruction to disregard it. The presumption is that the prejudicial remark of the prosecuting officer was nullified by the instructions of the court to disregard such remark, unless there was an appeal' to race prejudice or unfavorable comment on the failure of the accused to testify in his own behalf. State V. Easley, 118 La. 690, 43 Southern 279. (qq) Where complaint charged five liquor violations in five different months, instruction confined to one violation per month. Where, on a trial for violation of an ordinance con- cerning intoxicating liquors, under a complaint charg- ing five separate violations on specified days, in five separate months, the court ruled that it would allow evidence of any violation in any of the months, but would confine the jury in the instructions to one viola- tion for each month, error, if any, in the ruling, was without prejudice to defendant, where the evidence, as appearing in the abstract, was confined to the allegations of the complaint. Rice v. People (Col. Sup.), 90 Pacific 1031. 255 § 59 Errors in Criminal Proceedings. (rr) Instruction relating to the keeping and operating of a gaming device. Where, on a trial for operating a gambling device, the evidence showed that the acts constituting the offense were committed in 1906, and prior to Feb. 26 of that year, the time of the filing of the original information, the error in an instruction that the jury, on finding that accused, in the year 1906, and at any time prior to Feb. 26 of that year, kept and operated a gambling device, should find him guilty, operated in favor of accused, in that he might have been convicted of an offense com- mitted within three years of the information, and he could not complain. State v. Davis, 203 Mo. 616, 102 Southwestern 528. {ss) Charge on provoking a difficulty. A charge on provoking a difficulty, not authorized by the evidence, was harmless error, where there was no issue of self-defense. McDougal v. State (Tex. Cr. App.), 103 Southwestern 847. {tt) Charge on false imprisonment other than an assault. Where the information charging the presiding judge of an election with false imprisonment, alleging not only an assault but also actual violence, and the evidence showed an arrest and detention without warrant, the error, if any, in the court charging on the use of other means of false imprisonment than an assault was not pre- judicial. Smyth V. State (Tex. Cr. App.), 103 South- western 899. (mm) Charge substittiting the name of the son for that of the father. Where, on a trial for assault with intent to murder, a 256 The Trial — Instructions to the Jury. § 59 witness testified that the father of the one shot had said that the shooting was accidental, but the court, in its charge, substituted the name of the son for that of the father, and instructed that the testimony of witness as to statements made by the son was not original evi- dence, but could only be considered in passing on the credibility of the son as a witness. The charge was not prejudicial to defendant within Code Criminal Procedure, art. 723, providing that where it appears by the record in a criminal case on appeal by defendant, that certain requirements in respect to a charge of the jury have been disregarded, the judgment shall be reversed. Jack- son v. State (Tex. Cr. App.), 103 Southwestern 927. (vv) Instruction stating the facts necessary for finding an abandonment of a wife by a husband. Where, on the trial of a husband for neglecting to support his wife, the evidence showed that he had a home, and was of sufficient ability to provide for her, the error, if any, in an instruction declaring the facts constituting the basis for a finding of abandonment, arising from the failure to include the fact that the husband had the means or ability to provide a home, was not prejudicial. Spencer v. State (Wis. Sup.), 112 Northwestern 462. (ww) Instruction erroneously referring to information instead of complaint. Where the court refers to the charge as contained in the first count of the information, a verdict finding the defendant guilty as charged in the first count of the in- formation is not reversible error, though accused was tried on a charge before a justice called a complaint. State v. Pugh, 75 Kan. 792, 90 Pacific 242. 257 Errors — 17. § 59 Errors in Criminal Proceedings. (xjr) Instruction that if the jury believed the crime was committed in this instead of in "M county," etc. In a prosecution for rape, the error in the instruction, that if the jury behaved that the crime was committed in "this county," etc., instead of in "M county," etc., was harmless, where the trial occurred in M county, the evidence showed that it was committed there, and there was no claim that it was committed in any other county. Lake v. Commonwealth, 31 Ky. L. R. 1232, 104 Southwestern 1003. (yj) Charge, on a trial for rape, that defendant had been criminally intimate with prosecutrix prior to al- leged offense. A charge, on a trial for rape, that there was evidence tending to prove that defendant had been criminally in- timate with prosecutrix prior to the alleged oflfense, was not prejudicial to defendant, though the court should not have used the word "criminally," as intercourse be- tween an unmarried man and an unmarried woman is not technically a crime. State v. Zempel, 103 Minn. 428, 115 Northwestern 275. {za) Instruction in prosecution for arson, that if house burned was inclosed and a roof on it, it might be regarded as a building. Although an instruction in a prosecution for arson, that if the house burned was inclosed, and a roof on it, might be regarded as a building, was not correct, the judgment in the case will not be reversed for that rea- son, where the effect of the error is not prejudicial to the defendant, because of the undisputed evidence in the case relating to the building. Van Immons v. State, 29 Ohio Cir. Ct. Rep. 681. 258 The Trial — Instructions to the Jury. § 59 (aaa) Charge in murder trial that it was then an hour until Sunday, when the law forbade the transac- tion of legal business. A charge on a trial for murder, that it was then but one hour until Sunday, that the law did not recognize that any business of a legal character could be transacted on Sunday, and that, at the expiration of the hour, the jury should discontinue any further consideration of the case until Monday, was not reversible error as calculated to hasten the jury, though they returned a verdict of guilty within an hour, and before the Sabbath intervened. Moore v. State, 130 Ga. 322, 60 Southeastern 544. (bbb) Charge that if there were twenty-five or thirty people there, that would make it a public place. A charge on a trial for betting at a game played with cards or dice, in a public house, highway, or some other public place containing an erroneous statement of law that if there were twenty-five or thirty people there, that would make it a public place, was harmless, where the evidence, without conflict, showed that the place where the betting was done was a public place. Tatum V. State (Ala. Sup.) 47 Southern 339. {ccc) Instruction that a policeman or a detective is a com- petent witness. An instruction that the jury were the sole judges of the credibility of each witness, but the fact that a wit- ness was a policeman or detective did not render such witness incompetent or furnish ground for arbitrarily rejecting his testimony; that his business was a lawful one, and his testimony should not be rejected through caprice or prejudice alone; that while taking into con- 259 § 59 Errors in Criminal Proceedings. sideration his business, the jury should also consider his testimony with fairness and give it such weight as, un- der all the circumstances, they thought it fairly entitled to, was not prejudicial. People v. Campbell, 234 111. 391, 84 Northeastern 1035. (ddd) Phraseology of certain instruction not commended. Criminal Code Procedure, sec. 340, requires a convic- tion to be reversed for any error of law appearing on the record when on the whole case, the substantial rights of the defendant have been prejudiced thereby. The real issue in a homicide case was, whether the commonwealth's version of the afifair or that of the ac- cused was true. The verdict could have been based on no ground other than an acceptance of the common- wealth's version. The phraseology of certain instruc- tions given was improper, but the jury could not have been thereby misled in determining the real issue. Held, that the error was not reversible. Kennedy v. Common- wealth, 32 Ky. L. R. 1381, 108 Southwestern 891. {eee) In a prosecution for embezzlement, instruction as to the ownership of proceeds of goods sold on credit, etc. In a prosecution for embezzlement, instructions were given as to the ownership of proceeds of goods sold by defendant on credit, as the defendant claimed was made, that he was liable as debtor and not as custodian, by his having assumed personal responsibility therefor; but none of the proceeds of these sales on credit accounts were included in the amount found by the jury to have been embezzled. Held, that the instructions, even if erroneous, had no prejudicial efifect. Gtienther v. State (Wis. Sup.), 118 Northwestern 640. 260 The Trial — Instructions to the Jury. § 59 (///) Instruction upon justification in a trial for assault with a dangerous weapon. Error, if any, in an instruction upon justification on a trial for assault with a dangerous weapon, with intent to do bodily harm, is harmless, where defendant was not justified in shooting. State v. Butterfield (S. D. Sup.), 119 Northwestern 548. (ggg) Instruction that evidence of other transactions could be considered only as bearing on guilt or in- nocence in case on trial. Code Criminal Procedure, 1895, art. 723, provides that though the record in a criminal action may show that some of the requirements of the preceding articles have been disregarded, the judgment shall not be reversed unless the error was calculated to injure the rights of the defendant. In a prosecution for violation of the local option law the jury were instructed that defendant was presumed to be innocent tmtil his guilt was estab- lished beyond a reasonable doubt; that if there was a reasonable doubt as to his guilt they should acquit him, and that they must find beyond a reasonable doubt that the defendant did sell the liquors substantially as charged in the indictment. Held, that the error in also instruct- ing the jury that evidence of any other transaction which may have been ofifered in evidence could not be con- sidered for any other purpose than to assist in determin- ing^ the "guilt or innocence" of the defendant in the case on trial, are harmless. Fields v. State (Tex. Cr. App.), 117 Southwestern 806. 261 § 59 Errors in Criminal Proceedings. (hhh) In a prosecution for keeping a disorderly house and usurious loan business, charge that jury might find third person as part owner a myth. In a prosecution for keeping a disorderly house where- in a usurious loan business was carried on, defendant claimed as manager of a loan company to have repre- sented a third person in making loans at illegal rates, and the court charged that if it was found that there was such a person, and that she was a lender of the money, and did not participate in paying money charged for ex- penses, services rendered in making the loan, they must acquit; but if they found that she was a myth, or that her name was put in the papers to have some other person than the loan company appear as lender, it would be for them to say whether a making of a part of the papers in her name and a part in the name of the loan company, was a mere device or scheme for exacting il- legal interest; held, that if it was meant by the expres- sion "myth" that the jury might find that there was no such person in the whole world, the instruction to the extent that it went beyond a declaration that they might find she was a mythical person, so far as any connection with the transaction under review was involved, was harmless; for, if they found she was a myth so far as the making of such loans were concerned, it was im- material whether such person actually existed or not, and that the fact could not have aflfected the decision. State V. Martin (N. J. L.), 69 Atlantic 1091; affirmed 73 Atlantic 548. (Hi) In a prosecution of a saloon-keeper charge that de- fendant zvas responsible for the acts of his servants. In the prosecution of a saloonkeeper for selling in- 262 The Trial— Instructions to the Jury. § 59 toxicating liquors to a minor, it was not reversible error to instruct that defendant was responsible for the acts of his servants, where the record plainly shows that he was not prejudiced by it. Seele v. State, 85 Neb. 109, 122 Northwestern 686. iiii) Instruction that the jury is to determine whether a man who is innocent will remain silent when accused of a crime. An instruction that the jury is "to determine whether a man who is innocent will remain silent when he is accused of a crime" should not be given; but where, considering the whole evidence, no harm could have re- sulted, the instruction is harmless. Sapp v. State (Fla. Sup.), 52 Southern 2. (kkk) Instruction misspelling "hypothesis" "pypothesis." An instruction on circumstantial evidence, in which the word "hypothesis" in the expression, "It is not enough that the circumstances coincide with, account for, and render probable the guilt of the accused, but they must exclude to a moral certainty every other hypothesis, except the defendant's guilt," was spelled "pypothesis," was not prejudicial error, especially where affidavits by a number of the jurors appeared in the record, in which they stated that they were not misled by the misspelling of the word. Mass v. State (Tex. Cr. App.), 128 Southwestern 394. (///) Instruction correct, hut misapplied to the facts. An instruction which correctly states the law, which is inapplicable to the facts, and which does not prejudice accused, is not cause for reversal. People v. Everett, 242 111. 628, 90 Northeastern 226. 263 § 59 Errors in Criminal Proceedings. (mmm) Instruction that to prove the commission of the offense, it he confined to the time alleged in the indictment. An instruction that it is not necessary to prove the commission of the offense at the time alleged in the in- dictment, but it is enough to prove its commission be- fore the date of the indictment and within the period of limitations, though defective in not stating the period fixed by the statute, is harmless, the whole transaction having occurred within three months before the finding of the indictment. People v. Poindexter, 243 111. 68, 90 Northeastern 261. {nnn) Instruction that if used as a beverage, and when so used in sufficient quantities it would intoxicate, it was an intoxicating liquor. In a prosecution for illegally selling intoxicating liquor, the court charged that if the liquor in question could be used as a beverage, and when so used in sufificient quantities it would produce intoxication, it was an in- toxicating liquor within the meaning of the statute, etc. Held, that if the charge was inaccurate it was harmless error, as it was unnecessary to define the term "intoxi- cating liquor," because it is commonly understood. Pike V. State, 40 Tex. Cr. R. 613, 51 Southwestern 395. (ooo) In a prosecution for rape, instruction that the oral declaration or admission of a witness or party ought to be viewed with caution. In a prosecution for rape, instruction, "I instruct you that the testimony of the oral declaration or admission of a witness or party ought to be viewed with caution," though in conflict with the rule forbidding charges to 264 The Trial — Instructions to the Jury. § 59 charge juries with respect to matters of fact, is harmless, as stating a mere commonplace within the general knowledge of jurors. People v. Davenport (Cal. App.), 110 Pacific 318. iPPP) Instruction containing a mistake in the initials of a name. A mistake in the initials of a person, in an instruction or other part of the record, is not reversiBle error, where it does not mislead. People v. Gordon (Cal. App.), 110 Pacific 469. (QQQ) Instruction as to the effect of drunkenness in its different stages, calling one stage, "Crazy drunk." Where the evidence showed that accused was drunk, the action of the trial judge in charging as to the effect of drunkenness in its different stages, and calling one stage "crazy drunk," was not prejudicial to accused. State V. Crosby, 88 S. C. 98, 70 Southeastern 440. (rrr) Court using paper containing instructions used on a former trial, with part held error by appellate court erased in ink. The trial court in charging used a paper containing the instructions given on the former trial, erasing with ink the part of those instructions held error by the ap- pellate court, and submitting the original paper to the jury. Held, that the jury could not harmfully have been misled thereby, since if they deciphered the erroneous part under the erasure, they must have known that the trial court held that it was not the law. Tilmeyer v. State (Tex. Cr. App.), 136 Southwestern 1060. 265 § 59 Errors in Criminal Proceedings, (sss) Instruction as to the effect of silence when the cir- cumstances required an answer or denial, or other conduct. Where the court particularly charged Penal Code 1910. sec. 1029, providing that acquiescence or silence, when the circumstances required an answer or denial, or other conduct, may amount to an admission, and sec. 1031, that all admissions should be scanned with care, and confessions of guilt received with great cau- tion, and that a confession alone, not corroborated by other evidence, would not justify a conviction, and sec. 1032, that to make a confession admissible, it must have been made voluntarily, without any inducement by an- other, by the slightest hope of benefit or remotest fear of injury, and that before accused could be convicted upon such an admission alone, the said admission must be corroborated by other evidence independent of the admission arising from the silence and acquiescence of accused, or to charge that although the law should find from the evidence that the declaration was made in the presence and hearing of accused relating to what oc- curred in the transaction in which he was an actor, and the circumstances required an answer or denial, or other conduct, and if they found that accused, nevertheless, remained silent, that it is discretionary for the jury to consider the silence or acquiescence of the accused as an admission or not as they might see fit. Wright v. State (Ga. Sup.), 70 Southeastern 1102. (ttt) Court's charge having caption that case was tried in another county, and failing to state offense de- fendant was accused of, or when and where committed, etc. In a prosecution for theft, error in the caption of the 266 The Trial — Instructions to the Jury. § 60 court's charge, in stating that the accused was tried in a county other than that where it was actually tried, and in failing to state the offense the defendant was accused of, or when or where it was committed, or that defend- ant pleaded not guilty, was not prejudicial, as the jury must have known where the trial was held, and with what crime accused was charged, and that he had pleaded not guilty. Frankhn v. State (Tex. Cr. App.), 140 Southwestern 1081. (uuu) Instruction that breaking and entering a store in the daytime was included in the charge of a breaking in the nighttime. Error in instructing that the offense of breaking and entering a store in the daythne was included in a charge of a breaking in the nighttime, was harmless, where accused was found guilty of the offense charged. State V. Neitzel (Iowa Sup.), 136 Northwestern 532. (vvv) In a prosecution for disturbing religious worship, instruction using the term "religious purposes." The words "religious purposes" are so analogous to "religious worship" that, in a prosecution for disturb- ing a congregation assembled for religious worship, a charge using the term "religious purposes" is an im- material variance. Laird v. State (Tex. Cr. App.), 155 Southwestern 260. Sec. 60. Instructions directed to jurors concerning their duty. (a) Cautionary instructions. The giving of cautionary instructions is necessarily a matter very much within the discretion of the trial 267 § 60 Errors in Criminal Proceedings. judge, and unless an appellate court can see from the facts of the case a fair trial was not had, by reason of the refusal to give such instructions, it should not for that cause alone reverse a case. Minor v. State, 55 Fla. 71. (b) Instruction that jury will apply their best common knowledge to the consideration of the evidence. No error is committed in a criminal prosecution by the trial court in giving the following charge : "You will bring to bear upon the consideration of the evidence in this case in addition, all that common knowledge of men and affairs, which you, as reasonable men, have and exercise in the every-day affairs of life." Marshall v. State, 54 Fla. 66. (c) Instructing jury to assess punishment if defendant be found guilty. An instruction directing the jury to assess the punish- ment of defendant, if they found him guilty, is harm- less, the law authorizing them to determine only the question of his guilt or innocence. Davis v. State, 152 Ind. 145, 52 Northeastern 554. {d) Instruction requiring jury to find accused voted in a name other than his own. In a trial for voting in a precinct where accused had no legal right to vote, wherein the jury were required to so find, an instruction requiring a further finding that he voted in a name other than his own. was not error prejudicial to accused. State v. Whalen, 234 Mo. 539, 137 Southwestern 881. 268 The Trial — Instructions to the Jury. § 60 (e) Instruction requiring jury to find that beverage was intoxicatirfg. In a prosecution for violating the local option law, where the instruction required the jury to find that the beverage was intoxicating, it was more favorable to the defendant than the law demanded, and he could not complain. State v. Burk, 234 Mo. 574, 137 Southwestern 969, affirming 151 Mo. App. 188, 131 Southwestern 883. (/) Jury instructed to find against accused solely on the evidence affecting him. AVhere, on a trial of accused as accessory before the fact to false registration committed by a third, person, there was evidence of many offenses of accused's con- nection with them, and the court, while ruling on the evidence, stated that it would charge on the subject of the other offenses, a charge that the jury must con- sider exclusively the guilt or innocence of accused, with- out regard to the probable guilt or innocence of any other person of any crime, except that it might consider the probability of the guilt of any witness, as affecting his credibility, was not prejudicial to the accused. State V. Robinson, 236 Mo. 712, 139 Southwestern 140. (g) Instruction that self-defense and manslaughter are not open for consideration. If at the trial of a person for murder, the undisputed testimony clearly establishes the fact that the defendant is guilty of that crime, it is not error for the court to instruct the jury that the questions of self-defense and manslaughter are not open for consideration. State v. Valentine, 71 N. J. L. 552, 60 Atlantic 177. 269 § 60 Errors in Criminal Proceedings. (h) Instruction that a witness who testifies falsely as to one fact is to be distrusted in other parts of his testimony. An instruction that a witness who testifies falsely as to one fact is to be distrusted in other parts of his testi- mony, merely states a commonplace matter, which the jury would be apt to know without instruction, and was not ground for reversal. People v. Hower (Cal. Sup.), 91 Pacific 507; People v. Fitts, 91 Pacific 536. (i) Instruction to jury to consider the records and pro- ceedings in a prior case as to the falsity of de- fendant's testimony. Where, in a prosecution for perjury, alleged to have been committed in a prior prosecution of defendant, the testimony was ample to establish a case, and the jury assessed the least possible punishment, defendant was not prejudiced by an instruction authorizing the jury to consider the records and proceedings in the former case, in passing on the question as to the deliberate and wil- ful falsity of defendant's testimony. Collins v. State (Tex. Cr. App.), 101 Southwestern 992. (;') Jury admonished to disregard proceedings against defendant for refusal to answer question. On a trial for murder, the defendant refusing to answer a proper question, the court, in the presence of the jury, fined him, but upon defendant consulting with his coun- sel, and answering the question, the court remitted the fine, and, before the jury retired, called their attention to the occurrence, and admonished them that they should not permit themselves to be prejudiced thereby, but should determine the question of the guilt or innocence 270 The Trial — Instructions to the Jury. § 60 of the defendant solely from the evidence. Held, that such admonition was not erroneous, as being in fact an oral instruction, and the defendant was not prejudiced or injured by such occurrence. State v. Osnes, 14 Mon. 555, 37 Pacific 13. (k) Instructions that if jury failed to find defendant gtcilty of rape, then to find him guilty of assault with intent to, on his plea. Where, in a prosecution for rape, the state refused to receive defendant's plea of guilty of assault, with intent to commit a rape, but proceeded with the prosecution for rape, and secured a conviction for that crime, the court's charge to the jury, that if they failed to find him guilty of the rape, then to find him guilty of an assault, with intent to rape, on his plea, was not prejudicial error, though the plea may have been defective, because of the admonition given by the court to defendant be- fore he made the plea, was not in compliance with Code Criminal Procedure, 1895, art. 554. Childress v. State (Tex. Cr. App.), 103 Southwestern 864. (/) Instruction that it required a unanimous vote, instead of eight, to find defendant not guilty of an assault. An instruction that would lead the jury to believe that it required a unanimous vote to find defendant not guilty of an assault in the third degree, when it required only eight of their votes, is harmless error, when nine of the twelve jurors agreed to a verdict finding him guilty of assault in the third degree. State v. Farnham (Mont. Sup.), 89 Pacific 728. 271 § 60 Errors in Criminal Proceedings. (w) Instruction authorising jury to reject all his testimony if witness knowingly and falsely testified as to a material matter, unless corroborated. Where, in a prosecution for homicide, the court re- peatedly charged that the jury were the exclusive judges of the weight to be given the evidence, defendant was not harmed by an instruction that, if the jury were satis- fied that a witness had "knowingly and wilfully testified falsely in any material matter, they might reject all the testimony of the witness, unless corroborated." State V. Penna (Mont. Sup.), 90 Pacific 787; State v. Tracey (Mont. Sup.), 90 Pacific 791. (m) In a trial for violating the local option law, charge that if person prescribed for was not sick the physician was guilty. Where, on a trial for the violation of the local option law by a physician, in that he gave a prescription on which intoxicating liquor was obtained, the evidence showed that the prescription was given without any personal examination of the person prescribed for, though error was committed in charging that if such person was not sick, the physician was guilty, in that the element of knowledge was omitted, yet it was not prej- udicial, since it is also a violation of the law, if a pre- scription be given without a personal examination, and the jury were so charged. Weatherford v. State (Tex. Cr. App.), 102 Southwestern 1146, 103 Southwestern 633. (o) Instruction that jury might convict, if they believed defendant had been twice convicted, though not guilty of offense charged. Where an indictment under Kentucky Statutes 1903, 272 The Trial— Instructions to the Jury. § 60 sec. 1158, for unlawfully taking and detaining a woman against her will, also charged defendant with having been theretofore twice convicted of other felonies, and the verdict which found defendant guilty of taking and detaining the woman against her will, also found that defendant had been twice convicted of felonies before the commission of the crime charged in the indict- ment, was sustained by the evidence, an instruction that the jury might convict if they beheved defendant had been twice convicted of felonies, even though they did not believe him guilty of taking and detaining the woman, though unfortunate in expression, could not have misled the jury. Cragg v. Commonwealth, 31 Ky. L. R. 873, 104 Southwestern 285. (/») In a prosecution of a physician for obtaining patients by hired drummers, instruction that all who stand by and aid, etc., also are guilty. In the prosecution of a physician for obtaining patients by hired drummers, where there was evidence to prove that various persons, who were witnesses, had aided ac- cused in so obtaining patients, an instruction that all persons who stand by and aid or assist, or who, not being present, have advised and encouraged the per- petration of a crime, as well as the person who actually committed it, even if abstract was not prejudicial, where it had reference only to the witnesses who were shown to have aided accused in committing the ofifense charged, was tantamount to telling the jury that they might con- sider the witnesses's interest or bias in determining their credibility. Burrow v. City of Hot Springs, 85 Ark. 396, 108 Southwestern 823. 273 Errors— 18. § 60 Errors in Criminal Proceedings. (5) Instruction that "it is for counsel to argue the case as to such counsel may seem proper," hut it is for the jury to determine what has been proved. The court charged, at the request of the prosecution, that the jury should determine the facts, without de- pending on the opinion of either the court or counsel, if any such opinion has been, in any manner, indicated; that it is for the court to advise the jury as to the law; but "it is for counsel to argue the case as to such coun- sel it may seem proper," but it is for the jury to deter- mine from the evidence what facts have been proven. Held, that though the language quoted is not an ac- ■ curate statement of the law, it does not warrant a re- versal, in the absence of a showing that the prosecutor made improper argument to which the court's approval was thus given. People v. Zajicek, 233 111. 198, 84 Northeastern 249. (r) Instruction that any statement contradictory of a wit- ness could be considered only as to weight and credibility jury would give witness. Any difference between the word "credit," as used in an instruction, that any statement contradictory of a witness should be considered only in determining the weight and "credit" the jury would give the witness, and the word "credibility" was not of sufficient importance to require a reversal. Dooley v. State (Tex. Cr. App.), 108 Southwestern 676. '(.?) In a rape prosecution instruction enjoining the greatest care in considering the evidence of prosecutrix. In a rape prosecution an instruction that the jury should scan the testimony of the prosecutrix with great 274 The Trial— Instructions to the Jury. § 60 care and act upon it with caution, except where it was corroborated by other credible evidence, if error, was favorable to accused, and not prejudicial, since a convic- tion might be had on prosecutrix's testimony alone. People v. Corey (Cal. App.), 97 Pacific 907. (t) Instruction on a trial for theft, that if defendant knew whose money it was, etc., they would be guilty of theft. Error, if any, in an instruction on a trial for theft, that if, when defendants took the money, they knew whose it was, or could have known by reasonable in- quiry, etc., they would be guilty, as not confining the fraudulent intent to the very time of taking, but ex- tending it to the time immediately after the taking, could not have injured defendant, where he unquestionably with his codefendant took immediate possession of the buggy, in which the money was left, and they both knew to whom it belonged. Moxie v. State (Tex. Cr. App.), 114 Southwestern 375. (m) Urging upon the jury the importance of reaching agree- ment by calm discussion, and warning against un- reasonable stubbornness. The court may urge on the attention of the jury the importance of an agreement, and the jurors may be re- quested not to take a position that is beyond further consideration, reasoning and argument, and may be properly warned against stubbornness, as it is the duty of jurors to keep their minds open to every reasonable argument that may be presented by their cojurors, so that they may reach a verdict answering the consciences of the individual jurors. People v. Faber, 199 N. Y. 256, 92 Northeastern 374, 20 Ann. Cas. 879. 275 §60 Errors in Criminal Proceedings. (v) Instruction that if the jury find the alleged decedent is not dead accused shoidd be acquitted. Where the decedent's death was unquestionably shown, charge that if the jury do not find that the alleged de- cedent is dead, and that accused unlawfully killed her. accused should be acquitted, was not prejudicial, in view of the fact, if she was not dead, no conviction could be had. Crowell v. State, 56 Tex. Cr. Rep. 480, 120 Southwestern 897. (w) Instruction that the jury could judge from the wound whether it was inflicted with a glass. An indictment was in three counts, one charging the offense of assault and battery, a second cutting, stabbing and wounding, and a third, assault and battery. De- fendant denied using a knife, and claimed that a cut in the prosecutor's arm was made by a beer glass breaking. His testimony was in no way corroborated, and he would not say whether the glass, which he said that he held, had been broken. No other witness saw the glass in his hand. The court instructed that the jury should disregard the first count, leaving the other two counts, viz., aggravated assault and battery and simple assault and battery, and also charged the theory subsequently suggested, that "I am unable to discover from the testimony in this case any substantial support of that theory, that this wound was inflicted by a glass. You have seen the wound and you can draw your own con- clusions from the appearance of it, whether it was in- flicted with a knife or with a glass. Of course it is for you to say." Held, that the jury must have understood the words, aggravated assault and battery as naming the oflfense charged in the second count, and so their 276 The Trial — Instructions to the Jury. § 60 use could not have harmed the prisoner. Common- wealth V. Radzinowitsz, 39 Pa. Superior Ct. 173. (x) Instruction that any person who knowingly sells or gives intoxicating liquor to one under twenty-one years of age is guilty, etc. In a prosecution for selling and giving whisky to a minor, a charge that any person who knowingly sells or gives any spirituous or intoxicating liquors to any person under the age of twenty-one years, shall be guilty, etc., was not prejudicially erroneous, on the ground that there was no evidence that the whisky was sold, but the evidence was that it was given to the prose- cuting witness. Williams v. State (Tex. Cr. App.), 57 Southwestern 650. (y) In a prosecution under the habitual criminal statute, instruction not requiring a finding that the larceny was committed in the county of the venue. In a larceny prosecution under an information con- taining a count under the habitual criminal statute (Re- vised Statutes 1899, sec. 2379, Ann. St. 1906, p. 1461), error in an instruction submitting the case on that count, for not requiring a finding that the larceny committed in the county of the venue, did not prejudice accused, where she was not convicted under the statute. State V. Payne, 223 Mo. 112, 122 Southwestern 1062. (^r) In a prosecution for selling liquor on Sunday, instruc- tion to find defendant guilty for any offense com- mitted within two years. In a prosecution for selling liquor on Sunday, a charge was objectionable as on the weight of the evidence, and in that it authorized the jury to find defendant guilty 277 § 60 Errors in Criminal Proceedings. for any offense committed within two years prior to the date alleged in the indictment, instead of prior to the filing of the indictment. There was no evidence, how- ever, of any sales made, except during the fall in which the indictment was returned, nor was there any evidence contradicting these sales. Held that, in view of the evi- dence, the error was not prejudicial, and would not war- rant a reversal, Code Criminal Procedure 1895, art. 723, providing for reversal only where an injury to the rights of defendant is made to appear. Hofheintz v. State, 45 Tex. Cr. Rep. 117, 74 Southwestern 310. (aa) Instruction that if defendant struck R, and defend- ant was an adult male, while R was a female, then he would be guilty of aggravated assault. Where, in a prosecution for assault on defendant's wife by striking her, the court charged that if defendant struck R with his hands and fists, as alleged, and de- fendant was an adult male, while R was a female, then he would be guilty of aggravated assault, he was not prejudiced by the court's error in the general definition of what constitutes assault. Reynolds v. State (Tex. Cr. App.), 124 Southwestern 931. {hh) Instruction that before the jury could consider testi- mony as to experiments they must find they were performed under like conditions. Where the court charged that, before the jury could consider any testimony as to experiments, they must find that the experiments were performed under sub- stantially the same conditions, the error, if any, in ad- mitting evidence of experiments made by witness as to the ability to see whether a person was armed with a gun, arising from the failure of the witnesses to select 278 The Trial— Instructions to the Jury. § 60 the proper place, was not prejudicial. State v. Evan (Ore. Sup.), 108 Pacific 1009. (cc) Instruction that in civil cases a preponderance of the evidence is sufficient, but in criminal cases a greater strength of mental conviction is necessary. An instruction that in all civil cases a preponderance of the evidence is sufficient to produce mental convic- tion, but in criminal cases a greater strength of mental conviction is necessary to justify a verdict of guilty, was not harmful to accused. Brundage v. State, 7 Ga. App. 726, 67 Southeastern 1051. (dd) In a prosecution for attempted rape, instruction that if defendant embraced prosecutrix with her con- sent, etc., such acts would not constitute assault. A charge in a prosecution for assault with intent to commit rape, that if defendant embraced prosecutrix, with her consent, or if there was a reasonable doubt as to whether he embraced her with her consent, such acts upon his part, with her consent, would not con- stitute an assault herein defined, while objectionable, as imposing upon defendant the burden of proving certain conduct toward the witness, with her consent, giving undue prominence to such consent, is harmless. Conger v. State (Tex. Cr. App.), 140 Southwestern 1112. (ee) Instruction that it was the jury's duty to attach no significance to the fact that defendant failed to testify in his own behalf. The court charged that it was the jury's duty to care- fully and conscientiously abstain from indulging in every inference, presumption or consideration, in the least unfavorable to defendant from his failure to testify; 279 § 60 Errors in Criminal Proceedings. that there was nothing in that circumstance for the jury to consider in arriving at a verdict; that it will require them to give no consideration at all, and to attribute no significance whatever to the fact, and under no cir- cumstances to permit it to influence their minds, but that defendant entered on his trial with the presumption that he was innocent, and was not bound to prove him- self innocent, it being the jury's duty to act on the pre- sumption of innocence, and lack of intent during their entire consideration of the evidence, and until that had been overcome by evidence of guilt, so strong, material and conclusive as to convince their minds, and the minds, of each of them, to a moral certainty, and be- yond reasonable doubt, that defendant was guilty of the crime charged. Held, that accused not having elected to testify, was not prejudiced by the fact that the court read to the jury Penal Code sec. 1323, providing that accused can not be compelled to be a witness against himself, but if he ofifers himself as a witness, he may be cross-examined as to all matters concerning which he was examined in chief, but his neglect or refusal to be a witness could not in any manner prejudice him, or be used against him on the trial of the proceeding. Peo- ple V. Ruef (Cal. App.), 114 Pacific 54. iff) Where bloodhounds were employed, charge that jury must find the dogs were certain and reliable in following human footsteps, etc. Where, and before the evidence of the conduct of bloodhounds, alleged to have been put upon the trial of defendant, is received, it is made to appear that the dogs in question were able to follow the scent of a person, and the evidence showing the conduct of the dogs has been received, a charge that, before the jury can con- 280 The Trial — Instructions to the Jury. § 60 sider such conduct, they must find the dogs were certain and rehable in following human footsteps, and if they find that to be a fact, then the evidence of their work and its result should be considered, together with all the other evidence, is not prejudicially erroneous. State V. Adams, 85 Kan. 435, 116 Pacific 608. {gg) In a prosecution for keeping liquors on hand, instruc- tion that if defendant rented a portion of the store to another and knew whiskey was kept there, he would he guilty, etc. In a prosecution for keeping liquor on hand at his place of business, an instruction that if defendant rented a portion of the store to another person, and knew that whiskey was being kept there, he would be guilty, though not abstractly correct, is harmless, where the un- disputed evidence inconvertibly supports the inference of defendant's guilt. Phillips v. State, 9 Ga. App. 857, 72 Southeastern 429. {hh) In a prosecution for the murder of a new-horn child, instruction that if defendant, either alone or with the father, unlawfully killed the infant, etc., the jury should find, etc. In a prosecution for the murder of a new-born child, in which accused, while acting as attending physician, was claimed to have killed it in the presence of the father and mother, the court instructed that if defend- ant, either alone or acting together with the father as principal, unlawfully killed the infant child by breaking and dislocating its neck, etc., the jury should find ac- cused guilty of second degree murder, and a further in- struction that all persons were principals who acted together in the commission of the offense pursuant to a 281 § 60 Errors in Criminal Proceedings. common intent, and a previously formed design in which the minds of. all concurred, and that, if they did so, they were principals, but that before one could be held as a principal, he must not only have been present when the offense was committed, but must have, in addition thereto, aided, encouraged, advised, or agreed to the commission of the same, with a knowledge of the un- lawful intent of the person actually committing it. Code Criminal Procedure 1895, art. 723, as amended in 1897 (act 25 leg., c. 21), provides that whenever it appears upon accused's appeal that any of the requirements of the preceding articles relating to instructions have been disregarded, the judgment shall not be reversed, unless the error was calculated to injure accused's rights. Held, that the judgment of conviction would not be reversed because of any technical omissions or misstatements in the instructions, especially where accused requested no charge on the subject. Jones v. State (Tex. Cr. App.), 141 Southwestern 953. (ii) Instruction that actual penetration is necessary, but no particular depth, and hymen need not be rup- tured. The inaccuracy in instructing that actual penetration was necessary, but no particular depth was required, and the hymen need not be ruptured, was not harmful to ac- cused, where prosecutrix's physical condition was fully shown and undisputed. Bailey v. State (Ark. Sup.), 150 Southwestern 1030. (;;) Instruction that if there are circumstances justifying a recommendation of life imprisonment for mur- der jury should make such recommendation. Instruction that if there are circumstances justifving 282 The Trial — Instructions to the Jury. § 60 a recommendation of life imprisonment in case of a verdict of murder in the first degree, it is the jury's right to make such recommendation, held harmless, where a proper instruction would not have produced a different result. State v. Romeo (Utah Sup.), 128' Pacific 530., (kk) Where defendant was charged with mailing certain letters, instruction authorizing conviction if he mailed the letter, etc. Where an indictment charged defendant only with the mailing of certain unmailable letters, he was not prej- udiced by instructions authorizing a conviction if he mailed the letters or "caused them to be mailed." Win- ters v. United States, 201 Federal 845, 120 C. C. A. 175. (//) On a trial for illegally selling liquor, instruction that if transaction detailed by witnesses was a trick or scheme to evade the law, to find defendant guilty. On a trial for selling whisky illegally, an instruction that if the transaction detailed by the witnesses was a trick or scheme to evade the law to find accused guilty, held not substantially prejudicial, as it related only to accused's conduct in that transaction. Salings v. Com- monwealth, 154 Ky. 738, 159 Southwestern 563. {mm) Instruction that jury coidd acquit if defendant was without sufficient mind or reason to know what he was doing. Where the court instructed that the jury should ac- quit if accused did not have mind enough to know right from wrong, a further instruction that they could acquit, if he was without sufificient mind or reason to know what he was doing, was not prejudicial to accused, even 283 § 60 Errors in Criminal Proceedings. if erroneous, merely giving the jury an additional ground for acquittal. Hall v. Commonwealth, 155 Ky. 541, 159 Southwestern 1155. (nn) On a trial for rape, instruction that if the jury were convinced prosecutrix was seventeen years old or more, the verdict must be "not guilty." Where, on a trial for rape, the evidence fixed the age of prosecutrix as under seventeen years, an instruction that if the jury were convinced that she was seventeen years old or more, the verdict must be not guilty, was not prejudicial, as placing on accused the burden of es- tablishing her age at seventeen or over before acquittal. Leonard v. State (Ariz. Sup.), 137 Pacific 412. {oo) Instruction that for the jury to vote time after time according to their first ballot, zvithout trying to agree, was to violate their oaths. Error in instructing that for the jury to vote, time after time, according to their first ballot without trying to agree, was to violate their oaths to return a verdict in accordance with the evidence, and this "each of you can do without doing violence to your consciences as fair minded, conscientious, and intelligent jurymen," held not prejudicial. People v. Whitlow (Cal. App.), 139 Pacific 826. (pp) Instruction that robbery must have been wilfully com- mitted. Accused was not prejudiced by an instruction that the robbery must have been wilfully committed, since such requirements only impose an additional burden of proof on the state. Madrid v. State (Tex. Cr. App.), 151 Southwestern 93. 284 The Trial — Instructions to the Jury. § 60 Sec. 61. Voluminous instructions not scrutinized. (a) Separate propositions excepted to en masse. Where the giving or refusing to give two or more in- structions, announcing separate and distinct propositions of law, are excepted to en masse in a single exception, or are assigned en masse in a single assignment of error, the appellate court will consider such an exception, or such an assignment of error, no farther after discover- ing that one of the instructions so excepted to or as- signed en masse, was properly given or refused. Lewis V. State, 42 Fla. 253; Brown v. State, 42 Fla. 184, 27 Southern 869. (&) Needlessly voluminous charges not scrutinised. If the instructions given to the jury are correct and sufhcient, the court will not scrutinize the requests for instructions of the excepting party, if they are needlessly voluminous, as in the present case. Commonwealth v. DevHn, 141 Mass. 423, 6 Northeastern 64; Harper v. State, 83 Miss. 412, 35 Southern 572. Sec. 62. Instructions relating to the accused. (a) Charge as to the weight to he given to testimony of accused. An instruction that, in weighing the testimony of ac- cused, it is proper to consider the impeaching evidence as to his general moral character, the fact that he is the defendant in a criminal prosecution, and the extent to which such fact detracts from his credibility is not prej- udicial, when coupled with a further instruction that his testimony should not be disregarded on the ground that he is the defendant; that his testimony should be 285 § 62 Errors in Criminal Proceedings. impartially considered with the other evidence; that he is presumed to be innocent until proved guilty beyond a reasonable doubt, and that he should be acquitted if there be a reasonable doubt of his guilt. Randall v. State, 132 Ind. 539, 32 Northeastern 305. (6) Instruction that statements of the prisoner were nega- tived by the information. An introductory remark, in an instruction to the jury, that the statements of the prisoner, as a witness, were substantially negatived by the information, is held un- objectionable, where it could not have misled the jury, and where no improper testimony concerning false state- ments had been admitted. Keator v. People, 32 Mich. 484. (c) In prosecution for murder charge relating to the shooting of Z at the time it was alleged accused shot deceased. In a prosecution for homicide, the court charged that evidence had been admitted relating to the shooting of Z at the time it was claimed defendant shot deceased; that the only relation of such testimony was to illustrate or establish the intent or motive with which the shooting of deceased was done, if any; that before the jury could consider the shooting of Z , they must be satisfied, be- yond a reasonable doubt, that defendant shot Z wil- fully, unlawfully and intentionally; and if they had a reasonable doubt that defendant shot Z wilfully, unlaw- fully and intentionally, and that if they had a reasonable doubt, they should disregard all of the testimony on such question. Held, that such instruction was not prejudicial to defendant. People v. McClure, 148 Cal. 418 83 Pacific 437. 286 The Trial— Instructions to the Jury. § 62 (d) Instruction that jury consider defendanfs demeanor and false statements when accused of the crime charged against him. Where, on a prosecution for rape, the evidence left no reasonable doubt of defendant's guilt, a conviction will not be reversed because the court gave two in- structions authorizing the jury to consider defendant's demeanor and false statements when accused of the crime, which were erroneous, in that one of them con- stituted a comment on the evidence, while the other as- sumed that false statements had been made. State v. Vickers, 209 Mo. 12, 106 Southwestern 999. (^) Instruction that it is for the jury to determine whether accused had been denied a speedy and public trial, etc. Error in instruction, that it is for the jury to decide whether accused had been denied the constitutional guaranty of a speedy and public trial before an im- partial jury was harmless, the court having previously ruled that accused had not been deprived of the guar- anty. State V. Rabens, 79 S. C. 542, 60 Southeastern 442; rehearing denied, 79 S. C. 542, 60 Southeastern 1110. (/) Where accused fled, instruction to consider flight as a circumstance indicative of guilt, if he knew it was an. officer from whom he ran. Where accused fled immediately after the commission of the crime charged, an instruction to consider flight as a circumstance prima facie indicative of guilt, if ac- cused knew, or had reason to know, that the person from whom he ran was an officer, was not prejudicial to accused. State v. Sarenson (Iowa Sup.), 138 North- western 411. 287 § 62 Errors in Criminal Proceedings. {g) Instruction requiring accused's withdrawal from com- bat to be clearly signified to restore his right of self-defense. An instruction requiring accused's withdrawal from combat to be clearly signified in order to restore his right of self-defense, held not prejudicial, where his evi- dence did not show any withdrawal. State v. Young (Iowa Sup.), 138 Northwestern 871. {h) Instruction that hearsay statements by accused had no probative value and should not be considered. Error in charging that hearsay statements made by accused as a part of his statement in defense had no probative value, and should not be considered by the jury, were harmless, where the statements contained nothing in the nature of hearsay that was material. Stanley v. State (Ga. App.), 70 Southeastern 894. (i) Instruction in a prosecution for forgery, that if ac- cused "actually" believed he had authority to sign a check in the name he signed thereto the jury should acquit. An instruction in a prosecution for forgery that if ac- cused "actually" believed he had authority to sign to a check the name which he signed thereto, the jury should acquit, can not be complained of by accused for not being based upon the hypothesis that accused "reason- ably" believed, etc. Davis v. State (Tex. Cr. App.), 156 Southwestern 1171. (/) Instruction in prosecution for robbery, that if accused retook the money under an honest belief if was his, the jury should acquit. Error in a prosecution for robbery in charging that 288 The Trial — Instructions to the Jury. § 62 if accused retook the money under an honest behef it was his property, the jury should acquit, when accused had lost the money at cards and voluntarily gave it to the winner, whom he afterwards robbed, was favorable to ac- cused. Coker v. State (Tex. Cr. App.), 160 Southwestern 366. {k) Instruction that the jury could consider the interest of accused in determining his credibility as a witness. An instruction that the jury could consider the in- terest of the accused in determining his credibility as a witness, held harmless, where it appeared from the ver- dict that the jury must have given the testimony of ac- cused the most favorable efifect to which it was entitled. State V. Kink (La. Sup.), 64 Southern 1007. Applied to accused and his wife. State v. Shaffer, 253 Mo. 220, 161 Southwestern 805. (/) Instruction authorizing conviction if accused assaulted prosecutor with a knife, with intent to kill, maim, or disfigure him. Error in an instruction authorizing a conviction if ac- cused assaulted prosecutor with a knife, with intent to kill, maim or disfigure him, while the information only charged an assault with intent to maim, held not preju- dicial, where the jury found accused guilty as charged in the information. State v. Bunyard, 253 Mo. 347, 161 Southwestern 755. Sec. 63. Instructions upon legal presumptions and the burden of proof. (a) In a prosecution for embezzlement, instruction that balance on hand was presumed to be lawful money. In a prosecution for embezzlement by a county treas- 289 Errors— 19. § 63 Errors in Criminal Proceedings. urer, the information charged the embezzlement of the amount named, lawful money of the United States, the same being public funds of that county received by de- fendant for the use of the county. The uncontradicted evidence showed that, at the time of the official counts of the money in the county treasury made preceding the disclosure of the shortage, there was on hand, as a por- tion of the balance in place of coin, certificates of deposit, checks and money orders, which had been received as money by the treasurer from the tax collector, and which were apparently carried as money by him, and counted as money by the auditing board. Held, that an instruction that if the sworn statement made by the defendant showed a balance of money on hand, the presumption was that the balance was lawful money of the United States, and that the county treasurer was not authorized to accept checks or certificates of deposit in payment of taxes, though given without good reason therefor, was not prejudicial. People v. Amer (Cal. Sup.), 90 Pacific 698. (b) Instruction in a prosecution for libel placing the bur- den on defendant to prove justification by a pre- ponderance of the evidence. An instruction, in a prosecution for libel, placing the burden on defendant to prove justification by a pre- ponderance of the evidence was harmless, where the un- disputed facts show that the publication was false. Judgment 141 111. App. 374 affirmed. People v. Fuller, 238 111. 116, 87 Northeastern 336. 290 The Trial — Instructions to the Jury. § 63 (c) Instruction that innocence was presumed until estab- lishment of guilt "beyond a reasonable . . . .by legal evidence." A written instruction that accused's innocence was pre- sumed until establishment of his guilt "beyond a reason- able ... by legal evidence," was not prejudicial error, for omitting "doubt" after "reasonable," especially where the word was not omitted when the judge read the charge to the jury. Hester v. State (Tex. Cr. App.), 116 Southwestern 1150. (d) Instruction that unexplained possession of recently stolen property raises a presumption of guilt. An instruction that the unexplained possession of re- cently stolen property is sufficient to raise a presump- tion of guilt, though incorrect in language, yet having been frequently announced is not reversible error, es- pecially where a correct concrete instruction was given in the case. State v. Clark (Iowa Sup.), 122 North- western 957. (e) Instruction that a witness is presumed to speak the truth, but such presumption may be repelled by the manner in which he testified, etc. The court instructed that a witness is presumed to speak the truth, but such presumption may be repelled by the manner in which he testified, the character of his testimony, or by contradictory evidence; but that the jury were the sole judges of his credibility, and that, "if any witness examined before you has wilfully sworn falsely as to a material matter, you may disregard the entire evidence of such witness." Held, that the court's failure to add to the above quoted, the qualification, 291 § 63 Errors in Criminal Proceedings. "except in so far as it is corroborated by other credible evidence," could not have prejudiced accused, in view of the fact that the great preponderance of the evidence showed guilt, the instruction as given not precluding the jury from considering the weight of a witness's testimony, though they believed him to have sworn falsely in a material matter. State v. Martel (Nev. Sup.), 108 Pacific 1097. (/) Charge that the presumption of innocence is the pre- sumption that every man performs his duty until the contrary appears. Where the court, on a trial for murder, charged that the burden of proving every fact essential to a convic- tion beyond a reasonable doubt rested on the people, that accused is presumed innocent until proved guilty, that the presumption of innocence must be overcome, the error in charging that the presumption of innocence is the presurtiption that every man performs his duty until the contrary appears, and that it is a presumption that applies to accused, and to every citizen who goes on the witness stand, equally with accused, and it is not a presumption that the accused is innocent, and that every one testifying is conspiring to testify against him, was not ground for setting aside a conviction of man- slaughter, indicating that the jury gave accused the bene- fit of every presumption and every reasonable doubt. People V. Lumsden, 125 N. Y. Supplement 1079, 141 App. Div. 158. {g) In a prosecution for transporting liquor, instruction that burden was on accused to show that liquor conveyed by him was a lawful purchase. In a prosecution under Compilation of Laws 1909, sec. 292 The Trial— Instructions to the Jury. § 63 4180, making it an offense to convey certain kinds of liquor from one place in the state to another place therein, except the conveyance of a lawful purchase, as authorized in a different section, a charge to relieve ac- cused of liability for the conveyance, on the ground that it was a lawful purchase, he is required only to produce evidence sufficient to raise a reasonable doubt thereof, an erroneous instruction that the burden was on ac- cused to show by a preponderance of evidence that the liquor conveyed by him was a lawful purchase, was not prejudicial, where the evidence of neither party tended to show that the liquor conveyed was a lawful purchase. Scheve v. State (Okla. Cr. App.), HI Pacific 962. (h) In a trial for bigamy, instruction that accused had the burden of showing a divorce from his former wife. Where, on a trial for bigamy, there was no pretense that accused had obtained a divorce from his former wife, and the evidence of his guilt was overwhelming, the error, if any, in an instruction that accused had the burden of showing a divorce from his former wife was not reversible. Lesener v. State (Ind. Sup.), 95 North- eastern 239. (i) Instruction that, until the contrary is shown, a woman is presumed chaste. The jury having been clearly warranted in finding prosecutrix was chaste, prior to her alleged seduction, there being no evidence contrary to her testimony, any error in charging that, until the contrary is shown, a woman is presumed chaste, was harmless. State v. Holter (S. D. Sup.), 138 Northwestern 953. 293 § 64 Errors in Criminal Proceedings. (/) Instruction that when one is charged with the commis- sion of a crime the law presumes him to be of average character. In an instruction that, when a person is charged with the commission of a crime, the law presumes that he is a man of "average" character, and that a failure to call witnesses to prove his general good character casts no presumption against it, the use of the word "average" in place of the usual adjective "good" was not prejudi- cial. State V. Munhinney (Utah Sup.), 134 Pacific 632. {k) In a prosecution for assault with intent to kill, in- struction that every sane man is presumed to in- tend the natural and probable consequences of his acts. Error in instructing, in a prosecution for assault, with intent to kill, that every sane man is presumed to in- tend the natural and probable consequences of his acts, was not prejudicial to accused, while he admitted that he, in fact, shot prosecutrix with intent to kill, for the purpose of protecting his own life. Coulter v. State (Ark. Sup.), 161 Southwestern 186. Sec. 64. Assumptions in instructions given. (a) Instruction - assuming the good character of the ac- cused. An instruction which assumes that accused was of good -character, when the evidence was conflicting, though erroneous, is not prejudicial to defendant. State v. Priest, 215 Mo. 1, 114 Southwestern 949. (b) Instruction assuming that "blow" killed the deceased. A judgment of conviction for murder will not be re- 294 The Trial — Instructions to the Jury. § 63 versed because of an instruction which assumes as true, that the "blow" mentioned therein "killed the deceased," where it appears from the evidence that the fact that the blow inflicted by defendant killed the deceased is tacitly admitted. State v. Douglass, 28 W. Va. 297. (c) Charge assuming that certain written testimony of a witness was a true copy of that given on the ex- amining trial. It is not prejudicial to accused for the court to as- sume in its instructions that certain written testimony of a witness given on the examination trial, and which was introduced in evidence was a true copy of such testi- mony, where the evidence showing it to be a correct copy, was not disputed by accused. Wilkins v. State, 68 Ark. 441, 60 Southwestern 30. {d) Charge assuming that defendant assaulted prosecuting witness. Where the uncontroverted evidence in a prosecution for assault, with intent to kill, shows that defendant first attacked and knocked down the prosecuting witness, who was rendered unconscious by the blow, and that, while the witness was lying on the ground, the defendant kicked him twice, an instruction assuming that defend- ant assaulted the prosecuting witness, thereby invading the province of the jury, is not sufficiently prejudicial to warrant a reversal of a judgment of guilty. Braxton v. State, 157 Ind. 213, 61 Northeastern 195. {e) Charge assuming conceded facts. In a criminal trial, the assumption in the charge of conceded facts is not prejudicial. Bennett v. State, 72 295 § 64 Errors in Criminal Proceedings. Ark. 398, 81 Southwestern 382; Delehoyde v. People, 212 111. 554, 72 Northeastern 732. (/) Charge assuming that girl under age of 14 years can not give consent. Under constitution, art. 3, sec. 2>d>, providing that "no unmarried woman shall legally consent to sexual inter- course who shall not have attained the age of fourteen years," it was not prejudicial error to charge, on a trial for rape, under an indictment which did not allege that the woman was unmarried that, "if you come to the con- clusion that this girl is under the age of fourteen, then she can not give her consent," where there was no com- plaint that the judge assumed as true any fact in issue up to the verdict and motion for a new trial, there was nothing to suggest that the fact that she was unmarried was in issue. State v. Hadden, 49 S. C. 308, 27 South- western 194. {g) Instruction assuming the guilt of the accused. On a trial for murder, an instruction as to temporary insanity, which assumes that the accused did the killing, when he had pleaded not guilty, can not have prejudiced him, when he, himself, testified that he did it. Brewer v. Commonwealth, 11 Ky. L. R. 601, 12 Southwestern 672. {h) In a prosecution for perjury charge assuming that defendant made the alleged false statement. In a prosecution for perjury, an instruction that, if at the time defendant made the alleged false statement un- der oath, he believed the facts stated to be true, then he could not be guilty of the offense charged, and should be 296 The Trial — Instructions to the Jury. § 64 acquitted, was a charge in defendant's favor to which he could not object on the ground that it erroneously as- sumed that he made the alleged false affidavit. Adams V. State, 49 Tex. Cr. Rep. 361, 91 Southwestern 225. Sec. 65. Instructions defining words and phrases. (a) Erroneous definition of "embezzlement." In a prosecution for embezzlement, where the court in a general charge used the following language : "As the state's attorney said in his argument, embezzlement is the twin brother of larceny, the only difiference being the manner in which the money comes into the posses- sion of the party charged with one or other offenses." Such reference to the argument of the state's attorney is not approved; but, where no complaint is made as to the correctness of the distinction drawn between the two offenses, it does not constitute reversible error. Lewis V. State, 55 Fla. 54. (&) Instruction defining larceny as a "taking and carrying." A charge defining larceny as a "taking and carrying," omitting the word "away," is harmless, when the as- portation is admitted. Flowers v. State (Fla. Sup.), 52 Southern 11. (c) Instructions departing from established technical defi- nitions. A slight departure from technical definitions estab- lished by time and usage, and given a well-defined legal meaning, is not ground for reversal of a judgment, un- less it appears to have been prejudicial. State v. Milam, 88 S. C. 127, 70 Southeastern 447. 297 § 66 Errors in Criminal Proceedings. (d) Instruction defining "reasonable doubt." An instruction in a prosecution for murder defining "reasonable doubt," as "such a doubt as will create in the mind a feeling of unrest or misgiving on the part of the jury, and which will not permit their minds to rest upon a verdict of guilty," was not prejudicial, es- pecially where the undisputed evidence, including the statements of defendant, clearly showed guilt. Wilson V. State, 109 Tenn. 167, 70 Southwestern 57. As one for which a reason could be given on the evidence or Want of it. Territory v. Ayers (N. M. Sup.), 113 Pacific 604. Sec. 66. Instructions upon the subject of reasonable doubt. (a) Charge correctly defining reasonable doubt. A portion of a charge that, "The defendant is entitled to every reasonable doubt arising from the evidence or from the whole evidence in the case; a reasonable doubt being such a doubt as a reasonable man would enter- tain, not a mere possible or speculative doubt," is not erroneous when taken with other portions of the charge that correctly state the law. Sims v. State, 54 Fla. 100. A reasonable doubt is that state of a case which, after an entire comparison of all the evidence and instructions of the court, leaves your minds in doubt and uncertainty as to the guilt of the defendant. Stehr v. State, 92 Neb. 755, 139 Northwestern 676. (&) Charge correct when the several propositions are col- lectively considered. As to what is reasonable doubt is liable to be miscon- 298 The Trial — Instructions to the Jury. § 65 ceived by a jury instruction telling them what it is, at some length, may be excused when the several proposi- tions are correct. Bear v. People, 124 111. 576; Dunn v. People, 109 111. 635. (c) One defective instruction cured by other properly stating the rule. That one instruction omits to state that the belief of the jury must be "beyond a reasonable doubt," does not require a reversal, where the law of reasonable doubt is fully laid down in other instructions. Deilks v. State, 141 Ind. 23, 40 Northeastern 120. (d) Not error to charge that the jury should not hunt for doubts. Where the court had instructed the jury that a rea- sonable doubt which entitles the accused to an acquittal, is a doubt of guilt reasonably arising from all the evi- dence in the case, or from want of evidence, it was not error to charge further, that the jury should not go be- yond the evidence or want of evidence to hunt for doubts, merely chimerical, whimsical, or based on groundless conjecture. Voght v. State, 145 Ind. 12, 43 Northeastern 1049. {e) Charge that reasonable doubt does not require strict proof of each link in the chain of evidence relied upon. A charge embodying the statement that the doctrine of reasonable doubt does not require the jury to be satisfied beyond a reasonable doubt of "each link in the chain of evidence rehed upon to estabHsh the guilt of the defendant," while incorrect, is not prejudicial, when read with accompanying charges, that the rule extends 299 § 66 Errors in Criminal Proceedings. to every material allegation of the indictment, and may arise either from the evidence or lack of evidence. Rains V. State, 152 Ind. 69, 52 Northeastern 450. (/) Charge applied to circumstantial evidence. An instruction defining "reasonable doubt," as applied to cases of positive or circumstantial evidence, is free from error in a case where all the evidence v^ras circum- stantial, where a subsequent instruction defines it as applicable to cases of circumstantial evidence. Suther- lin V. State, 148 Ind. 695, 48 Northeastern 246. '{g) Instruction where all the facts point to guilt. Instruction on reasonable doubt that, "If, however, all the facts established necessarily hold the mind to the conclusion that the defendant is guilty, though there be a fair possibility that he is innocent, you should find him guilty," is not error, where there are other clear instruc- tions on the subject favorable to the defendant, and all the instructions on the subject requested by defendant were also given. Mcintosh v. State, 151 Ind. 251, 51 Northeastern 354. (h) Additional unnecessary charge on the subject. In addition to a charge that embodied the true doctrine of reasonable doubt, the court charged that a reasonable doubt is one based on reason, and which is reasonable, in view of all the evidence, and that if, after an impartial consideration of all the evidence, the jury could candidly say that they were not satisfied of accused's guilt, they had a reasonable doubt; but that if, after such consider- ation, they could truthfully say, that they had an abiding conviction of his guilt, such as they would be willing to 300 The Trial — Instructions to the Jury. § 66 act on in the more weighty matters as to their own af- fairs, then they had no reasonable doubt. Held, that this last charge was entirely unnecessary, but that it was not prejudicial to the accused. State v. Nerzinger, 220 Mo. 36, 119 Southwestern 379. (i) Instruction to acquit if there is any doubt of the guilt of the accused. Where all the evidence upon the question of character is in favor of defendant, and the court charges that this proof should lead the jury to acquit, if there be any doubt as to his guilt, such charge, although incorrectly stating the law, as the evidence was all in favor of de- fendant's good character, was not prejudicial to him. Territory v. Burgess, 8 Mont. 75, 19 Pacific 558. (/) Instruction that every fact and circumstance relied on to establish guilt must be proved by evidence beyond a reasonable doubt. Where other instructions clearly charged that it was the people's duty to prove beyond a reasonable doubt all the elements of the criminal charge, defendant was not prejudiced by an instruction that every fact and circumstance relied on by the prosecution to establish defendant's guilt must be proved by evidence beyond all reasonable doubt; and if the jury were not satisfied be- yond all reasonable doubt that each fact and circum- stance had been so proved, it was their duty to find de- fendant not guilty. People v. Jones (Cal. App.), 90 Pacific 561. (fe) Instruction unnecessarily employing the word "license." An instruction that the jury should find defendant 301 § 66 Errors in Criminal Proceedings. guilty if they found a reasonable doubt that he sold liquor within five miles of a grading camp, unless they further found, "beyond a reasonable doubt," that the sales were made under a certain kind of license, though erroneous, a defendant being entitled to acquittal if the evidence leaves a reasonable doubt of his guilt, is harm- less, there being no proof of any license. Langan v. People, 32 Col. 414, 76 Pacific 1048. (/) Instruction that, "unless the evidence fails to impress your minds beyond a reasonable doubt of de- fendant's guilt, you should acquit hint." An instruction that, "unless the evidence fails to im- press your minds beyond a reasonable doubt of defend- ant's guilt, you should acquit him," was not prejudically erroneous because of the use of double negatives. Hedger v. State (Wis. Sup.), 128 Northwestern 80. (m) Charge more favorable to the accused than to the prosecution. In a murder case, there was no error as to accused in a charge that, "by reasonable doubt," as used in the in- struction, was meant an actual subsisting doubt of guilt arising in the jury's minds from the evidence, or want of evidence, and that if, after careful consideration of the evidence, the jury had an abiding conviction of accused's guilt, and were fully satisfied to a moral certainty of the truth of the charge made against him, they would be satisfied beyond a reasonable doubt, such charge being more favorable to accused than to the state. Johnson v. State (Neb. Sup.), 130 Northwestern 282; Clark v. State (Tex. Cr. App.), 136 Southwestern 260. 302 The Trial — Instructions to the Jury. § 66 (m) Meaningless instruction upon reasonable doubt. In a prosecution for assault and battery, giving mean- ingless instruction on reasonable doubt is not ground for reversal. Malchow^n v. State (Ala. App.), 59 Southern 342. (o) Instruction that one accused of crime is presumed to be innocent "unless" the contrary is proved beyond a reasonable doubt. In an instruction stating that everyone accused of crime is presumed to be innocent unless the contrary is proved beyond a reasonable doubt, etc., the incorrect use of the w^ord "unless," instead of "until," will not wrongfully inform the jury as to the application of the pi^esumption of innocence, when the jury could not have understood from the language of the entire instruction that it limited the application of the presumption to a narrower scope than authorized by law. People v. War- field, 172 111. App. 1. (/)) Charge bearing on the testimony of one who has turned state's evidence. An instruction in regard to a witness who has turned state's evidence, to the effect that if the jury believe be- yond a reasonable doubt that his testimony has been corroborated by competent witnesses or by facts and circumstances appearing in evidence, the jury has a right to give it the same degree of weight as that of other witnesses, though improper, is not reversible error. People V. Darr, 179 111. App. 130. 303 § 67 Errors in Criminal Proceedings. Sec. 67. Instruction upon the possession by accused of the stolen property. (a) Instruction that possession by defendant of the stolen property is evidence of guilt. An instruction to the jury that the faikire of the ac- cused to account for stolen property found in his posses- sion is evidence of guilt, though erroneous, is not ground for reversal, where it appears not to have been prejudi- cial, v^^hen considered in connection vi^ith other instruc- tions and the evidence. v. Commonwealth, 2 Ky. L. R. (abstract) 321. (&) Instruction making a general reference by an accused to the possession of the stolen property. On a prosecution for larceny of five horses, pursuant to a prearranged plan to collect a band of horses and sell them, an instruction referring to the possession of the stolen property generally, and not to that alleged in the information is not prejudicial, though erroneous, where the evidence tended to show that the whole band, including the five horses described in the information is not prejudicial, though erroneous, where the evidence tended to show that the whole band, including the five horses described in the information, went into the actual possession of the accused. State v. Stevenson, 26 Mont. 332, 67 Pacific 1001. (c) Instruction that possession was not sufficient, but if defendant claimed ownership it tended to show guilt. In a trial for larceny, it appeared that a claim of ownership of the stolen property was made by defendant, when in actual possession or shortly after a sale of the 304 The Trial — Instructions to the Jury. § 68 property by him. The court instructed that unexplained possession of stolen property was not sufficient to justify a conviction, without corroborating testimony; but that, if it was found in his possession claiming ownership, it tended to show guilt. Held, that while the language employed was too broad, and there are conditions under which a mere claim of ownership should not, in any de- gree, tend to establish guilt, yet, under the rule that con- victions will be reversed for alleged errors in instructing, only when, from the testimony, it appears that the jury may have been misled to defendant's prejudice, there was no ground for reversing a conviction. People v. Horton (Cal. App.), 93 Pacific 382. Sec. 68. Instructions relating to confessions. (a) Submission to jury of question of the voluntary char- acter of the confession. Where, in a prosecution for homicide, the state's case showed that certain confessions admitted in evidence were voluntary, but accused, on his examination, made a somewhat dififerent statement as to the inducements or statements made to him before the confessions were made, he was not prejudiced by the submission of the question of the voluntary character of the confessions to the jury. Hintz V. State, 125 Wis. 405, 104 Northwestern 110. (&) Charge enjoining care in considering verbal confessions. Where defendant's confession was admitted in evi- dence, on a prosecution for crime, he could not com- plain of a charge, that the law says that verbal confes- sions should be received and weighed with great caution, because liable to misconstruction, and great care should 305 Errors— 20. § 69 Errors in Criminal Proceedings. be exercised lest, either in the mode of obtaining a con- fession or in the use made of it, injustice may be done to accused, the same being favorable to him. Griffin v. State, 49 Tex. Cr. Rep. 440, 93 Southwestern 732. Sec. 69. Instruction upon conspiracies and conspira- tors. (a) Charge that conspiracy may be shown by circumstan- tial evidence. One indicted with another for murder can not com- plain because the court, in charging that conspiracy may be shown by circumstantial evidence, and as to what de- gree of same is necessary to establish conspiracy, did not instruct that the elements of conspiracy must be shown beyond a reasonable doubt, still the import of other in- structions was that the conspiracy, in the particular case, if found, must be proved beyond a reasonable doubt. Musser v. State, 157 Ind. 423, 61 Northeastern 1. (&) Instruction that a conspiracy might be inferred from the facts and circumstances. The general statement in an instruction that the con- spiracy may be proved by testimony that it was actually entered into or might be "inferred" by the jury from the facts and circumstances in evidence, was not preju- dicial to defendant, as the jury were, in effect, directed by the subsequent part of the instructions, that they must believe, beyond a reasonable doubt, or from the facts and circumstances in evidence, that a conspiracy existed. Wait v. Commonwealth, 113 Ky. 821, 24 Ky. L. R. 604, 69 Southwestern 697. 306 The Trial — Instructions to the Jury. § 69 (c) On a trial for conspiracy, charge that all alike are guilty as principals. On the trial of one of two conspirators for assault with intent to commit murder, where the evidence showed that the accused was present when it was committed, and handed his confederate the weapon used, it was harm- less error to charge that all are aHke guilty as principals, whether in point of fact all were actually bodily present on the groimd when the offense was committed or not. Henry v. State (Tex. Cr. App.), 54 Southwestern 592. (d) Charge in prosecution for homicide, that if one parent entered into the conspiracy both did. In a prosecution for homicide committed by reason of a conspiracy between defendant and his father and mothef to resist the execution of a writ of possession, a charge that if defendant entered into the conspiracy with either his father or his mother to resist the writ of possession, the jury would not consider the acts and declarations of the father against defendant, was not prejudicial, where the evidence showed that if defendant entered into a conspiracy with one of his parents, he entered into a conspiracy with both ; and the court further charged that mere knowledge of the existence of the conspiracy on the part of the defendant did not make him a party, but the evidence must show that he knew of the conspiracy and participated therein, and that otherwise the acts and declarations of his father and mother should not be considered against him. Smith V. State, 48 Tex. Cr. Rep. 233. 307 § 69 Errors in Criminal Proceedings. (e) Charge that a common design and unlawful purpose by two or more persons are the essence of con- spiracy. In a prosecution for conspiracy, the first instruction correctly defined that offense, and also charged that if defendants did unlawfully and feloniously agree, con- spire and cooperate to do the act alleged, etc., and the jury were also repeatedly told that the design and pur- pose formed by the conspirators, must have been the commission of the offense mentioned in the indictment, defendants were not prejudiced by an instruction that a common design and unlawful purpose by two or more persons is the essence of the charge of conspiracy, which did not define, with certainty, what was meant by com- mon design. Imboden v. People (Colo. Sup.), 90 Pacific 608. (/) Charge directing the jury not to consider declarations made before the formation of the conspiracy. Where there was evidence that a third person had entered into a conspiracy with accused to commit the crime charged, and a witness, on direct examination, testified to threats made by the third person after the formation of the conspiracy, and on cross-examination stated that he did not remember the time the threats were made, and counsel for accused failed to move to strike out the testimony, on the ground that the threats were made prior to the formation of the conspiracy, and the court directed the jury not to consider any declara- tions made before the formation of the conspiracy, the error, if any, in admitting the testimony of the witness was not prejudicial. State v. Bobbitt (Mo. App.), 128 Southwestern 953. 308 The Trial — Instructions to the Jury. § 70 (g) Instruction in a prosecution for conspiracy against four persons, that a verdict might be against one only. Error, if any, in a charge by a trial court, in a criminal prosecution for conspiracy against four persons, to the effect that, as some evidence was admitted as against each defendant, which was not admitted against the others, the verdict might be against one only, is not prejudicial and reversible error, where two of the accused were found guilty. Hyde v. United States, 35 App. D. C. 451; writ of certiorari granted, 218 U. S. 681. (h) Instruction that one may he criminally liable as a conspirator without having a pecuniary benefit in the matter. An instruction that a person may be criminally liable as a conspirator, without having any pecuniary benefit in the matter is not harmful, when there is evidence that the conspirator participated in the conspiracy with a view of obtaining pecuniary benefit. People v. Warfield, 172 111. App. 1. Sec. 70. Instructions confused, involved, conflicting and ambiguous. (a) Ambiguous charge in a prosecution for larceny. A defendant convicted of grand larceny can not com- plain of an ambiguous instruction in regard to the man- ner of deliberating upon the question of his guilt or in- nocence of the crime of petit larceny, where the in- structions as to grand larceny were perfectly plain. State V. Mofifat, 20 Mont. 373, 51 Pacific 823. 309 § 70 Errors in Criminal Proceedings. (b) Instruction naming contiguous mine for one intended. In a trial of an indictment for murder growing out of dispute over the "Florence mine," a verbal mistake in instructing the jury that "if they believed from the evi- dence that there was a struggle between O (deceased), on the one side, and defendant on the other side, to gain sole possession of the 'Josephine mine,' each de- termined to drive the other off, and that defendant shot and killed deceased, O, in furtherance of such struggle, he could not be justified on the ground of self-defense." The Josephine mine joined the Florence mine and hav- ing been constantly mentioned in the testimony could not have misled the jury, and is not prejudicial. Terri- tory v. Burgess, 8 Mont. 74, 19 Pacific 558. (c) Correct conflicting with incorrect instruction. Where, in a criminal prosecution, an instruction cor- rectly stating the law is in conflict with an erroneous one in defendant's favor, he can not complain of the er- roneous instruction, or of the conflict between the two. State v. Jones, 32 Mont. 442, 80 Pacific 1095. (d) Involved instruction probably conveying no meaning to the jury. An instruction so involved that it probably did not in any reasonable probability impress the minds of the jury with any idea is harmless error. Miller v. State (Wis. Sup.), 119 Northwestern 850; Bromley v. State, Id. {e) Confused instructions favorable to accused. Accused can not complain that instructions were con- fusing to the jury, where such confusion operated to his benefit. People v. Bradbury, 155 Cal. 808, 103 Pacific 215. 310 The Trial — Instructions to the Jury. § 71 Sec. 71. Instructions relating to insanity as a defense. (o) Charge that burden was on defendant to prove in- sanity by a preponderance of the evidence. In a criminal prosecution in which the evidence of in- sanity was sHght, an instruction that the burden was on defendant to prove his insanity by a preponderance of the evidence, though not accompanied by an explanation that he was not required to establish it beyond a rea- sonable doubt, was not reversible error. Stanfield v. State, 50 Tex. Cr. Rep. 69, 94 Southwestern 105. (&) Where accused pleaded insanity, charge that such defense was sometimes simulated as a dernier resort. Where accused pleaded insanity, a provision of the charge calling the jury's attention to the fact that such defense was sometimes simulated and interposed because the facts rendered it hopeless by other means of avoid- ing punishment, was a mere abstract statement, and not prejudicial to accused. People v. Vaughn (Cal. App.), Ill Pacific 620. (c) Instruction that plea of insanity is an admission of the commission of the act charged, though not of the criminal nature. Any error in an instruction that the plea of insanity is an admission of the commission of the act charged, though it does not admit the criminal nature of the act, is harmless, where the defense set up by the evidence of the accused was, in substance, that the doing of the act charged together with the indifference of the defendant to the threatened consequences, was proof of insanity. State v. Jackson, 87 S. C. 407, 69 Southeastern 883. 311 § 72 Errors in Criminal Proceedings. (d) Instruction limiting , where insanity was the only defense. Where insanity was the only defense, and instruction, if objectionable as limiting the defense under the plea of not guilty to insanity alone, was without prejudice. People V. Ashland (Cal. App.), 128 Pacific 798. {e) Instruction that if one accused of burglary pleaded insanity, and was incapable of understanding the act was a violation of the law of God and society, he should be acquitted. An instruction that if one accused of burglary and larceny, who pleaded insanity, was incapable of under- standing that the act was "a violation of the law of God and society," he should be acquitted, was not prej- udicial to accused because of the words quoted. De Rinzie v. People (Col. Sup.), 138 Pacific 1009. (/) Failure to charge that temporary insanity produced by the use of ardent spirits might be considered in mitigation of the penalty. Failure to charge that temporary insanity produced by the use of ardent spirits might be considered in mitiga- tion of the penalty, pursuant to Penal Code, 1911, art. 41, held harmless, where the jury fixed the lowest penalty prescribed by law for the ofifense charged. Drysdale v. State (Tex. Cr. App.), 156 Southwestern 685. Sec. 72. Instructions upon the defense of alibi. (a) Instruction describing an alibi as part of the defense. Where an alibi and its efifects were correctly stated in an instruction, no harm will be presumed from the fact that in referring to it, the court descriptively said that an 312 The Trial— Instructions to the Jury. § 72 alibi is a part of the defense. McVey v. State, 57 Neb. 471, 77 Northwestern 1111. (&) Charge assuming, on defendant's plea of alibi, that house in question was burglarised. Where, in a prosecution for burglary, the court re- quired the jury to find the essential facts constituting burglary before they would be authorized to find defend- ant guilty, the fact that the charge, on defendant's ahbi, assumed that the house accused was charged with en- tering was burglarized, was not prejudicial. Davis v. State, 45 Tex. Cr. Rep. 166, 74 Southwestern 919. (c) Charge giving advantage of alibi, not claimed, to defendant. Tn a prosecution of two defendants for grand larceny, the court charged that if "the defendant were elsewhere than at the place of alleged larceny, at the time the same was committed," they should be acquitted. No efifort had been made by one of the defendants to prove an alibi. The other had admitted he was on- the train where the larceny occurred at the time, but introduced evidence pointing to contradict the prosecuting witness's testi- mony that he had been with witness for some time prior thereto. Held, that the instruction was, if anything, too favorable to defendants, and they could not object on the ground that it did not permit the jury to acquit one and convict the other defendant. State v. Thornhill, 174 Mo., 364, 74 Southwestern 832. (d) Instruction in homicide case commingling alibi with a charge on manslaughter. An instruction held not prejudicial to accused in a homicide case, on the ground that it commingled a 313 § 73 Errors in Criminal Proceedings. charge on alibi with a charge on manslaughter. Banks V. State (Tex. Cr. App.), 150 Southwestern 184. Sec. 73. Instructions superfluous, inconsistent, im- material, irrelevant, and erroneous. (a) Erroneous hut unpre judicial instruction. The court will not reverse a judgment for an erroneous instruction, where it appears that the jury could not have been misled nor the defendant prejudiced. Hellems V. State, 22 Ark. 207; McArthur v. State, 59 Ark. 431; Clemons v. State, 48 Fla. 9. (6) Charge immaterial if guilt well established. Alleged errors in giving or refusing charges or in- structions, and in the admission or rejection of testimony, which do not weaken the effect of the admitted testi- mony, and which do not reach the legality of the trial itself, will not be considered grounds for reversal, where the evidence leaves no room for reasonable doubt of the defendant's guilt. Hopkins v. State, 52 Fla. 39; Travers V. State, 90 Tenn. 499; Railroad Co. v. Satterwhite, 119 Tenn. 185, 79 Southwestern 106. (c) Instruction not bearing on the case. A judgment will not be reversed because of an instruc- tion which states merely a ruling of law having no bear- ing on the case, being tried where it was not calculated to mislead the jury. Bandalow v. People, 90 111. 218. {d) Instruction, where a witness has testified falsely, to disregard his testimony without regard to its materiality. A judgment will not be reversed in a capital case be- 314 The Trial — Instructions to the Jury. § 74 cause of an instruction that the testimony of a witness who has testified falsely, knowing and intentionally, may be disregarded, leaving out of view its materiality, where it appears that the only contradiction of the testimony of any witness was upon facts material to the issue. It was held that the error could work no harm. Dacey v. People, 116 111. 555. (^) Superfluous instruction. The giving of a needless instruction concerning user by the public, in an action for obstructing a highway, was held to be without prejudice to the defendant. State V. Horlacher, 16 Wash. 325, 47 Pacific 748; People v. Griffith, 146 Cal. 339, 80 Pacific 68. (/) Irrelevant unprejudicial instruction. An irrevalent instruction given, at the request of coun- sel for the accused, is not ground for reversal, especially where it appears that such instructions was not prejudi- cial to the accused. Barnett v. State (Ga. Sup.), 70 Southwestern 868. {g) Inconsistent instructions. Inconsitent instructions held harmless error, in the absence of any evidence that accused was in danger of an attack. Farris y. State (Tex. Cr. App.), 144 South- western 249. Sec. 74. Instructions upon circumstantial evidence. (a) Instructions guarding the consideration of circumstan- tial evidence by the jury. An instruction in regard to the proof of facts by in- 315 § 75 Errors in Criminal Proceedings. ferences from other facts and circumstances in evidence, was not objectionable as telling the jury to convict, if the state had proven its case by a preponderance of the evidence, where a proper instruction on reasonable doubt had been given, and the court had charged that defend- ant is presumed to be innocent until proven guilty be- yond a reasonable doubt; that the presumption prevails until the close of the trial; and that the jury should weigh and reconcile the evidence in the light of this presump- tion, if they could. Shields v. State, 149 Ind. 395, 49 Northeastern 351. (&) Instruction which argued in support of circumstantial evidence. Where an instruction which improperly argued in sup- port of the strength of circumstantial evidence, also in- formed the jury there was no direct evidence, it can not be assumed the prosecution was based on direct evidence, and the instruction is favorable rather than prejudicial to defendant. People v. Rowland (Cal. Sup.), 109 Pacific 894. Sec. 75. Instructions regarding impeached witnesses. (a) Instruction that if the jury believe any witness has been impeached they may consider such fact in weighing his testimony. Any error in the use of the word "may" in an instruc- tion, that if the jury believe any witness has been suc- cessfully impeached they may consider such fact in de- termining the weight to be given his testimony is harm- less, where, taking the instructions on the subject to- gether, it is clear that the jury following such instruc- 316 The Trial — Instructions to the Jury. § 76 tions must have determined the credibiHty to be given the testimony of the witness and his explanation of in- consistent statements, and given it such weight as they believed it to be entitled to under all the circumstances. State V. Whitbeck (Iowa Sup.), 123 Northwestern 982. (b) Instruction that if an impeached witness has been cor- roborated his testimony should be considered. Even if an instruction that "if the impeached witness be corroborated, his testimony should be taken and con- sidered, notwithstanding his impeachment," invades the province of the jury, it is harmless, the testimony of the impeached witness being the same as that of others, and there being no contradiction of the testimony. Bower- man V. State (Ark. Sup.), 129 Southwestern 80. Sec. 76. Instructions relating to motive and intent. (a) Instruction on sufficiency of mental power to form an intent. Where the court charged that it was proper for the jury to consider evidence of intoxication, in determining whether defendant, in view of his intoxication, "had suf- ficient mental power to kill," and therefore charged that, though defendant may have been intoxicated, if he "had sufficient mental power to form an intent to kill," and committed the act in manner and form as charged, his intoxication would not excuse him, etc., the inaccuracy in the sentence requiring defendant to have sufficient mental power to kill was cured by the subsequent sen- tence requiring that such mental power should be suf- ficient to form an intent to kill. Starr v. State, 160 Ind. 661, 67 Northeastern 527. 317 § 76 Errors in Criminal Proceedings. (&) Instruction upon the question of intent. Where the judge instructed a jury that a count in the indictment described a substantial offense, independently of the intent charged in it, and that, if they were not satisfied of the intent they should find a verdict against defendant negativing the intention, but if they were satisfied that all the allegations had been proved, they should find a general verdict, and the jury returned a general verdict on both counts in the indictment, finding the intent charged, such ruling, if error, is harmless, and therefore not subject to exception. Commonwealth v. Turner, 44 Mass. (3 Mete.) 19. (c) Instruction that a motive proven against one accused is a "strong" circumstance pointing to guilt. An instruction that a motive proven against one ac- cused of murder is a "strong" circumstance pointing to guilt, and that failure to prove one is a "strong" cir- cumstance in his favor, was not prejudicial error. State V. Stratford, 149 N. C. 483, 62 Southeastern 882. {d) Instruction on motive, referring to prejudicial admis- sion by counsel for one of the defendants. Where the prosecution, in a trial for murder, seeks to show defendant's motive, by showing his relations with another defendant tried at the same time for the same murder, an instruction on motive, referring to a prejudi- cial admission made by counsel for the other defendant, is harmless, where the jury, from letters in evidence, could see that the claim of the prosecution was sup- ported by evidence. State v. Kritchman (Conn. Sup.), 79 Atlantic 75. 318 The Trial — Instructions to the Jury. § 77 Sec. 77. Instructions upon accomplices and accessories. (a) Instruction confounding principal with accessory. In a prosecution for murder, where defendant is in- dicted as principal, and not as accessory, an instruction which charges the jury that, if they find that defendant, though not present at the killing, has counseled and ad- vised the killing, then they should find him guilty, is not prejudicial error, where the evidence is uncontro- verted that defendant was present. Brown v. United States, 2 Ind. Ter. — , 52 Southwestern 56. (b) On the trial of an accessory , instruction that record of conviction of the principal was conclusive. Where, on the trial of an accessory to murder, the court charged that the record in evidence, showing the conviction of the principal, were conclusive proof of the guilt of such principal, instead of prima facie proof, and defendant introduced no evidence to controvert the prin- cipal's guilt, the mistake in the instruction is harmless error. Dent v. State, 43 Tex. Cr. Rep. 126, 65 South- western 627. (c) Instruction that certain of state's witnesses were ac- complices of accused. Any error in charging that certain state's witnesses were accomplices of accused was favorable to him, since, if they were not, their testimony would not, as a matter of law, have to be corroborated to sustain the conviction. Joy v. State, 57 Tex. Cr. Rep. 93, 123 Southwestern 584. (d) Submitting to the jury the question, whether a witness is an accomplice. It is not reversible error to submit to the jury the 319 § 77 Errors in Criminal Proceedings. question whether a witness is an accomplice, though, where the evidence, without conflict, shows that he is an accomplice, the better practice required the court to so charge. Vails v. State (Tex. Cr. App.), 128 South- western 1117. (e) On a trial for seduction, instruction that prosecutrix was an accomplice. Where the testimony of prosecutrix, on a trial for se- duction, testifying unequivocally to the promise of mar- riage, to accused's act, and to her consent thereto, by reason of the promise of marriage, and her devotion to accused, was corroborated by proof that accused called on prosecutrix at her home, accompanied her frequently to different gatherings, and by letters written by accused to prosecutrix, in which he spoke of his love for her and of their coming marriage, the error in the charge that prosecutrix was an accomplice, and that the jury could not convict on her testimony, unless they believed that her testimony was true, and that it tended to show guilt; and that there was other testimony tending to connect accused with the commission of the offense, arising from the fact that it required a less degree of proof than the law contemplates, was not prejudicial to accused, and must be disregarded by Code Criminal Procedure, art. 723. Thorp v. State (Tex. Cr. App.), 129 Southwestern 607. (/) In a prosecution for lewdness, instruction that deals with the subject as though claimed accomplice was an adult. In a prosecution for lewdness with a boy under four- teen an instruction that deals with the subject as though the claimed accomplice was an adult is not prejudicial 320 The Trial — Instructions to the Jury. § 77 to the defendant, as it might have stated sec. 26 of the Penal Code, which provides that children under fourteen, in the absence of clear proof of knowledge of its wrong- fulness, are incapable of committing crimes. People v. Harrison (Cal. App.), 112 Pacific 733. (g) Where accused was prosecuted as a principal, instruc- tion defining accomplice. Where accused was prosecuted as a principal, an in- struction defining accomplices, which was conflicting only in that it required too high a degree of proof on the part of t"he principal was not prejudicial to accused. People V. Kosta (Cal. App.), 112 Pacific 907. (/i) In a prosecution for assault, with intent to murder, instruction charging accused as a principal although he did not do the act. In a prosecution for assault, with intent to murder, where accused was prosecuted as a principal, though he did not do the act, and the court fully charged as to the defense, and no errors in the charge were pointed out in the motion for a new trial, any error in charging the law as to principals will, in view: of White's Annotated Code Criminal Procedure, art. 723, providing that a judg- ment shall not be reversed, unless the error was prejudi- cial to defendant, which error shall be excepted to at the trial or on motion for a new trial, be considered harm- less. Johns V. State (Tex. Cr. App.), 140 Southwestern 1093. {i) Instruction, in a prosecution for cattle stealing, that if accused's brother did not aid him, the brother would not be a principal. One accused of cattle theft, was not prejudiced by an 321 Errors— 21. § 78 Errors in Criminal Proceedings. instruction that if accused's brother did not aid him, the brother would not be a principal, and the jury could not consider any declaration made by him when accused was not present. Fillington v. State (Tex. Cr. App.), 140 Southwestern 1102. (/) Instruction as to principals, not requiring both parties to have been present. Error, if any, in an instruction as to principals, in not requiring both parties to have beten present, held not re- versible, where the undisputed evidence showed beyond doubt that they were both present. Johnson v. State (Tex. Cr. App.), 149 Southwestern 165. Sec. 78. Instructions as to corroborative testimony. (a) Instruction on the effect of corroborating evidence. An instruction as to the efifect of corroborating evi- dence, on an attempt to impeach a witness, is not ground for reversal, in that there was no corroboration of the state's witness, where it was manifest that accused was in no way prejudiced thereby. Catchings v. State, 6 Ga. App. 790, 65 Southeastern 815. (&) Instruction that if any witness testified falsely, the jury may disregard his testimony except as cor- roborated by credible testimony. The giving of a charge that, if any witness has testi- fied falsely, the jury may wholly disregard his testimony, except so far as corroborated by other credible testimony in the case, was not prejudicial error, because in further stating that corroboration might be given by facts and circumstances occurring at the trial. State v. Winney (N. D. Sup.), 128 Northwestern 680. 322 The Trial — Instructions to the Jury. § 81 Sec. 79. Instructions relating to the reading of re- ports, etc. (a) Reading extracts from opinion of supreme court as a part of the charge. The reading of extracts from opinions of the supreme court, as a part of the charge in a criminal case, is un- wise, but is not ground for reversal, where it appears that the extracts are of a very general character, and could not possibly have misled the jury. State v. Quick, 150 N. C. 820, 64 Southeastern 168. Sec. 80. Instructions cured by striking out and with- drawing erroneous evidence. (a) Improper evidence withdrawn and jury instructed to disregard it. A charge which declares that certain documentary evi- dence may be stricken out, and that the jury are not to consider it, fully cured error in admitting it. People v. Thompson (Mich Sup.), 126 Northwestern 466, 17 D. L. N. 311; Hopt v. Utah, 120 U. S. 430; State v. Ray, 104 Tenn. 33, 54 Southwestern 978. Sec. 81. Instructions upon character and reputation. (a) Erroneous charge as to good reputation cured by sub- sequent charge. A charge that defendant's good reputation may be con- sidered by the jury, if proved to their satisfaction, may possibly be erroneous; but if erroneous it is cured by a subsequent charge, that if the defense of good reputa- tion, taken in connection with the other evidence, raises 323 § 81 Errors in Criminal Proceedings. in the minds of the jury a reasonable doubt as to the guilt of the defendant, the jury can not find the defend- ant guilty. Wotha v. State, 14 O. C. C. n. s. 145, 24 O. C. D. 60; WilHams v. State, 66 Ark. 264, 50 Southwestern 517. (b) Instruction that character of house kept may be proved by reputation. An instruction in a prosecution for keeping a house of ill-fame, that the character of the house may be proved by reputation, although incomplete and inapplica- ble, is not prejudicial, where there was no testimony in- troduced to prove such reputation, and the law was fully and correctly stated elsewhere in the charge. State V. Hendricks, 15 Mont. 198, 39 Pacific 93. (c) Instruction that evidence of previous good character should he considered with great caution. Where guilt is conclusively proved, an instruction that evidence of previous good character should be con- sidered with great caution, although erroneous, is harm- less. People v. Piner, 11 Cal. App. 542, 105 Pacific 780. {d) Instruction that good character of defendant ought to he considered with all the other facts in evidence. Where the court, in a criminal case, instructed the jury that, "The previous good character of defendants ought to be considered, together with all the other facts in the case." Held that, while the instruction was er- roneous, in assuming that previous good character was proven, the error was not prejudicial to defendant. Garst V. United States, 180 Federal 339, 103 C. C. A. 469. 324 The Trial — Instructions to the Jury. § 82 (e) Instruction that accused's previous good character neither justifies not "mitigates" the offense. Where, under the statute, the jury were only author- ized to find a verdict, without assessing punishment, any error in using the word "mitigates" in an instruction that accused's previous good character neither justifies nor mitigates the offense was harmless to accused. Bader v. State (Ind. Sup.), 94 Northeastern 1009. Sec. 82. Instructions upon the grade and degree of crimes. \a) Instruction defining degrees of homicide, where ac- cused indicted for murder was convicted of man- slaughter. Where, under an indictment for murder defendant is convicted of manslaughter, error in defining the higher degrees of homicide is not prejudicial to defendant. Rogers v. State, 60 Ark. 76. (&) Convicted of lower, error in instructions applicable to higher degrees immaterial. Where one is tried for a crime, which is divided into degrees, and the court commits error in instructing the jury on the law applicable to the higher degree, but properly instructs as to the lower degree, and accused is found guilty of the lower degree, he can not complain of errors which did not injuriously afifect him. Jouder- back v. Territory (Okla.), 91 Pacific 1030. (c) Where evidence clearly points to murder in the first degree, instruction on lesser unnecessary. On a trial for murder in the first degree, if the evi- 325 § 82 Errors in Criminal Proceedings. dence clearly points to murder in the first degree, the court is not required to instruct on the distinction be- tween murder in the first and murder in the second de- gree. Jones V. State, 40 Tex. 188. (d) When convicted of higher degree, error in instruction as to lozver immaterial. Where defendant is convicted of the highest degree of crime, and there is evidence to sustain the verdict, error in instructions as to lower degrees is not prejudi- cial. Jordan v. State, 50 Fla. 94, 39 Southern 155; State V. Moffat, 20 Mont. 371, 51 Pacific 823; State v. Winters, 81 Kan. 414, 105 Pacific 516. {e) Instruction stating minimum hut not maximum penalty correctly, where jury found a legal punishment. In a criminal case, an instruction stating the minimum penalty correctly, but not stating the maximum penalty correctly was not reversible error, where the jury found a legal punishment, and in a subsequent portion of the charge, where the court applied the law to the facts, the penalty was correctly stated. Choran v. State, 49 Tex. Cr. Rep. 301, 92 Southwestern 422. (/) Instruction that, under the law of commutation for good conduct, the term of imprisonment woidd amount to a certain period of time. Where the judge, on request for instructions, informs the jury as to the penalty following a verdict of guilty, without capital punishment, and adds that, under the law of commutation for good conduct the term of im- prisonment would amount to a certain period of time,, is not such error as requires reversal, where defendant is 326 The Trial — Instructions to the Jury. § 82 found guilty, without capital punishment. State v. Satcher, 124 La. 1015, SO Southern 835. (g) Instruction that robbery in the thifd degree was when accomplished by instilling fear of injury in the future. Where defendants, who were convicted of robbery in the second degree, did not request any charge relating to robbery in the third degree, and there was nothing in the evidence indicating that defendants were charged with robbery in the third degree, they were not preju- diced by an instruction that robbery in the third degree was simply when the crime was accomplished by the use of fear of injury in the future. People v. Thompson, 198 N. Y. 396, 91 Northeastern 838, affirming judgment 120 N. Y. Supplement 1141, 135 App. Div. 919. {h) On returning a verdict of guilty the court instructed the jury that they should state whether they found him guilty of simple or aggravated assault. Accused was charged only with aggravated assault. The verdict was, "We, the jury, find accused guilty as charged," and the court then charged the jury that, if they convicted defendant, they should state in their ver- dict whether they found him guilty of simple or ag- gravated assault. The same punishment was assessed in both cases. Held, that, as the original verdict would have been sufficient, and as the court might, under the direct provisions of Code Criminal Procedure, 1895, art. 753, have with the consent of the jury, corrected the verdict, the giving of this additional instruction and or- dering the jury to reconsider their verdict was harm- less, if erroneous. Noland v. State (Tex. Cr. App.), 140 Southwestern 100. 327 § 83 Errors in Criminal Proceedings. (i) Though two larcenies can not be added together to make grand larceny, instruction that accused be found guilty if he stole articles aggregating in value, twenty dollars. Though two larcenies can not be added together to make grand larceny, where the evidence showed that ac- cused stole two automobile tires worth forty dollars each, and he was not shown to have stolen anything worth less than twenty dollars, and instruction directing that the accused be found guilty, if he stole articles of an aggregate value of twenty dollars, without limiting it to one occasion, was not prejudicial. Woodford v. Com- monwealth, 154 Ky. 818, 159 Southwestern 567. Sec. 83. Instructions relating to counts of the indict- ment. (a) Jury warned to disregard evidence under abandoned count. Where, under authority of statute 1887, c. 435, an in- dictment for felony charges it under separate counts with being a habitual criminal, the fact that the case was not allowed to go to the jury on that count, after evidence to support allegations therein of former conviction and sentence has been put in, will not, as depriving defend- ant of his constitutional right to put his character in is- sue, be prejudicial to him, where the jury were warned not to regard any of the evidence under that count. Commonwealth v. Cody, 165 Mass. 133, 42 Northeastern 575. (&) Erroneous instruction as to two cured by conviction on third item. Where, under an indictment for embezzlement, the bill 328 The Trial—Instructions to the Jury. § 83 of particulars contained three items, each of a distinct, independent and indivisible transaction, an erroneous in- struction as to two, where the conviction rested on em- bezzlement of money covered by the third, was error without prejudice. State v. Kartgard, 62 Minn. 7, 64 Northwestern 51. (c) Where court instructed there was no evidence to sup- port two counts, and general verdict returned. In an indictment, in four counts, for passing and hav- ing in possession, with intent to pass, counterfeit bank bills, the court instructed the jury that there was no evidence to support two of the counts, and that the respondent could not be convicted thereon. The jury re- turned a general verdict of guilty. Held, that this did not warrant the supreme court to set aside the verdict and grant a new trial. State v. Wheeler, 35 Vt. 261 ; State V. Bugbee, 22 Vt. 32. {d) Instruction relating to counts ignored by the jury. Where two defendants, jointly indicted, were both con- victed under proper instructions on five separate counts, of violations of the oleomargarine act, August 2, 1886, c. 840, sec. 6. 24 st. 210 (U. S. Comp. St. 1901, p. 2230), and each was sentenced to pay a fine of $1,000. and to be imprisoned for six months, which was less than might have been imposed under any one of such counts, they could not be prejudiced by instructions given on the trial relating solely to other counts. Hartman v. United States, 168 Federal 30, 94 C. C. A. 124. 329 § 84 Errors in Criminal Proceedings. (e) Error in the charge relating to counts upon which de- fendants were found not guilty. An appeal in a criminal case will not be reversed be- cause the court committed error in the portion of its charge relating to certain counts of the indictment upon which the defendants were fotmd not guilty. Common- wealth V. Hann, 27 Pa. Superior Ct. 33. Sec. 84. Instruction relating to punishment. (a) Instruction as to punishment where jury not author- ised to determine same. If an instruction as to the punishment which could be meted out to a person committing a crime is erroneous, in view of the fact that the jury are not authorized to determine the penalty, it is without prejudice. State v. Egland (S. D. Sup.), 121 Northwestern 798. (&) Instruction for the jury to fix the punishment not requested by the defendant. Although an instruction to fix the punishment on con- viction, when not requested by defendant, is improper, the verdict will not be set aside for that reason, where the punishment was not excessive, and defendant was not injured. Chandler v. State (Okla. Cr. App.), 105 Pacific 375 ; rehearing denied, 107 Pacific 735. (c) Instruction directing jury to assess punishment. An instruction directing the jury to assess the punish- ment of defendant, if they found him guilty, is harm- less, the law authorizing them to determine only the question of his guilt. Davis v. State, 152 Ind. 145, 52 Northeastern 754; City of Topeka v. Regnor, 8 Kan. App. 279, 55 Pacific 509. 330 The Trial— Instructions to the Jury. § 86 Sec. 85. Placing undue stress upon a particular in- struction. (o) Instruction dwelling upon a particular portion of the evidence. It is generally improper in an instruction to call special attention, by way of argument, to particular portions of the evidence; but where it has been, done, it will not work a reversal unless it appears that injury resulted. Gistavenson v. State, 10 Wyo. 300, 68 Pacific 1006. (b) Court instructing the law too emphatically. That the court, in instructing the jury in a criminal case, merely stated the law too emphatically, is not ground for reversal. People v. Perry, 144 Cal. 748, 78 Pacific 284. (c) Instruction singling out one circumstance and focusing the jury's attention thereon. While, in a criminal case, the giving of an instruction singling out one circumstance and directing the jury's attention to it, without reference to the other facts and circumstances in the case, does not necessarily constitute prejudicial error, it is better practice not to give an in- struction in that form, and the case will not be reversed for failure to do so. Quertermons v. State (Ark. Sup.), 127 Southwestern 951. Sec. 86. Instructions submitting questions of law to the jury. (a) Erroneously charging that the fury are the fudges of the law. It does not constitute reversible error in a criminal 331 § 87 Errors in Criminal Proceedings. case for the court to charge erroneously that the jury are the judges of the law, as well as of the evidence, if this court can see that no injury resulted from such error, and is satisfied with the verdict. Hannum v. State, 90 Tenn. 647, 18 Southwestern 269. (&) Submitting to the jury the question of the materiality of perjured testimony. Though the materiality of perjured testimony is for the court, yet, where the testimony was material, a sub- mission of the question of materiality to the jury and their affirmative finding was without prejudice. Thomp- son V. People, 26 Col. 496, 59 Pacific 51 ; Grissom v. State (Ark. Sup.), 113 Southwestern 1011. (c) Erroneously submitting a question of law to the jury. An instruction, on a trial for abandonment of wife, that a good cause for abandonment was such as would have afforded defendant sufficient cause for separation and divorce, though erroneous in submitting to the jur)?- a question of law, is harmless, defendant not relying on a cause as justification, but denying abandonment. State V. Vollenweider, 94 Mo. App. 158, 67 Southwestern 942. Sec. 87. Instructions invading the province of the jury. (a) Instruction which did not invade the province of the jury. In a prosecution under Revised Statutes, 1881, sec. 2079, making it penal to rent premises for gaming, an in- struction that defendants could have used certain legal proceedings against the tenant to prevent him from further using the premises for illegal purposes, and con- cluding with the declaration that the court would not 332 The Trial — Instructions to the Jury. § 87 say that it was defendant's duty to take such steps, as it was for the jury to determine whether they had taken measures sufficient to exculpate themselves, does not in- vade the province of the jury. Morgan v. State, 117 Ind. 569, 19 Northeastern 154. (6) Instruction invading the province of the jury. Where the uncontroverted evidence in a prosecution for assault with intent to kill shows, that the defendant first attacked and knocked down the prosecuting witness, who was rendered unconscious by the blow, and that, while the witness was lying on the ground, the defendant kicked him twice, an instruction assuming that defendant assaulted the prosecuting witness, thereby invading the province of the jury, is not sufficiently prejudicial, as taking from the jury defendant's right of self-defense, to warrant a reversal of guilty. Braxton v. State, 157 Ind. 213, 61 Northeastern 195. (c) Court in its charge arguing the facts of the case. That the court, in charging the jury, argues the facts of the case, or gave a partial view of the evidence against the prisoner, constitutes no legitimate ground of error. Donnelly v. State, 26 N. J. L. 463, 601. (d) Charge relating to expert testimony which encroached on the province of the jury. The court charged in relation to the testimony of cer- tain medical experts, that such testimony was to be viewed with scrutiny and received with great caution, and that the value of such testimony depended on the truth or falsity of the hypothetical facts on which they founded their opin- ions. Held, that the charge was only objectionable as an 333 §87 Errors in Criminal Proceedings. encroachment on the province of the jury, and was not prejudicial. People v. Barthelman, 120 Cal. 7, 52 Pacific 112. (e) Where accused pleaded former acquittal and jeopardy, and court charged that pleas were not sustained. Penal Code. 1901, sec. 894-5, provide that issues of fact arising on pleas of former acquittal and once in jeopardy- must be tried by the jury. Sec. 971 provides that on a plea of former acquittal is either for the territory or for the accused. Sec. 1174 declares that any departure from the transcript made of proceedings, or any error, shall not affect the result, unless accused was prejudiced thereby. Accused pleaded former acquittal and once in jeopardy. The facts on the issues were not in dispute, and the court charged that the pleas were not sustained, and stated that the sole question was whether accused was guilty. The jury rendered a verdict of guilty. Held, that the defect in the verdict resulting from the failure of the jury to return a verdict on the pleas of former ac- quittal and once in jeopardy was not prejudicial to ac- cused. Storm V. Territory (Ariz. Sup.), 94 Pacific 1099. (/) Instruction commenting on the employment of armed men by defendant. Where, in a trial for employing armed men, the de- fendant and all his witnesses testified that some of the men had firearms, and that shooting occurred between them and persons on the schooner to which the men went to intimidate the master, comment on these facts in instructing was harmless. State v. Gohl (Wash. Sup.), 90 Pacific 259. 334 The Trial— Instructions to the Jury. § 88 (g) Instruction that evidence tended to shoiv certain facts. There was no prejudicial error in instructing that the evidence tended to show certain facts, when the state- ments were correct in fact. Dill v. State (Wis. Sup.), Ill Northwestern 1109. (/i) Instruction improperly commenting on the evidence. An instruction which improperly comments on the evi- dence is improper because giving one of the elements which, by argument from the court, unduly influenced the jury, and the conviction will be set aside, where the court, on appeal, can not say that accused did not suffer thereby, though such a reversal does not necessarily fol- low. State V. Fleetwood, 143 Mo. App. 698, 127 South- western 934. Sec. 88. Instructions to be considered as a whole. (a) Inapplicable instructions which inflicted no injury. Though an instruction be inapplicable and calculated to mislead, it is not prejudicial if, upon the whole case, appellant was not injured. Fitzpatrick v. State, 37 Ark. 238. (fc) Correct instructions, as a whole, cure defect in a par- ticular instance. Where instructions, taken as a whole, contain a cor- rect statement of the law, an objection to a particular instruction as being too general will not warrant a re- versal. People V. Tomlinson, 66 Cal. 344, 5 Pacific 509. (c) The whole charge should he considered in judging as to the effect of alleged error in a part. When separate paragraphs, or parts thereof, of a 335 § 88 Errors in Criminal Proceedings. charge to a jury are excepted to, the whole charge should be considered, and, if considered as a whole, the charge is free from the defects alleged, the exceptions should be overruled. WiHingham v. State, 21 Fla. 761 ; Kirland v. State, 43 Ind. 146; Ercook v. State, 169 Ind. 488, 82 Northeastern 1039; Colee v. State, 75 Ind. 511; Parrish v. State, 14 Neb. 60, 15 Northwestern 357. (d) If instructions as a whole are correct, isolated am- biguous one is harmless. All instructions given upon the same subject should be considered together, and when read in connection with each other, if no error appears, an exception based upon an isolated one will not avail, although, standing alone, the one excepted to may be ambiguous. Starke v. State, 49 Fla. 41. (^) Defect in one instruction reconciled by another. An instruction set out the information against accused charging him with feloniously breaking and entering a storehouse in the night-time and taking away certain property. A full instruction defined the offense charged, and set out its ingredients, and concluded by stating that, if the jury found all the elements to exist beyond a rea- sonable doubt, they should find accused guilty. Held, that the second instruction was not defective in authoriz- ing a conviction without proof that it was accused who committed the crime, when considered with the first in- struction. Hutchins v. State, 151 Ind. 667, 52 North- eastern 403. 336 The Trial— Instructions to the Jury. § 88 (/) Separating words or phrases from the other parts of the instruction is unfair. An instruction should be examined as a whole. All that the instruction contains should be looked to, for the purpose of determining whether the party complain- ing of it was prejudiced by it. To single out a phrase, a word, or a sentence from an instruction, and to ex- amine such word or phrase separately from the other parts of the instruction is not a fair method of criticism. Davis V. State, 51 Neb. 301, 70 Northwestern 984. (g) Two paragraphs of a charge, one following the other, will be considered together. Two paragraphs of a charge to the jury, one im- mediately following the other, will be treated together, and treated as one, when they relate to a particular phase of the law, and each is plainly complemental of the other. Dunn v. State, 58 Neb. 807, 79 Northwestern 719. {h) Objectionable features immaterial when instructions as a whole are correct. When the instructions, though containing some ob- jectionable statements, taken as a whole, could not have misled the jury, and are favorable to defendant, they will not be held prejudicial. Martin v. Territory, 18 Okla. 370, 90 Pacific 13. (i) Charge partly by the clerk, partly by the court, and partly by commonwealth's attorney. The fact that the charge to the jury was given partly by the clerk, partly by the court, and partly by the com- monwealth's attorney, is not ground for reversal, when the defendant is not harmed thereby, and the jury were 2>2,7 Errors — 22. § 89 Errors in Criminal Proceedings. fully informed as to their duties. Porterfield v. Com- monwealth, 91 Va. 801, 28 Southeastern 352. (/) Minor inaccuracies in a charge which are not cal- culated to mislead the jury. Minor verbal inaccuracies in the charge not calculated to mislead the jury was not ground for a new trial. Moody V. State, 1 Ga. App. 772, 58 Southeastern 262. (k) Where conflicting instructions considered as a whole fairly state the law. Where there are two instructions, submitting two con- flicting theories of the law, the result may be such as to require a reversal, but where an instruction, considered as a whole, and in the light of other instructions fairly states the law, an appellate court will not detach the sentences or paragraphs which, when considered alone, might be prejudicial, and reverse a case for that reason. State V. Letice (Wash. Sup.), 112 Pacific 748. Sec. 89. Instructions refused. (fl) Refusal to give instruction when a substantially simi- lar one was given. A judgment will not be reversed for refusal to give an instruction asked if afterwards the court gives sub- stantially the same insti-uction. Parkman v. State, 13 Ark. 705; Pleasant v. State, 15 Ark. 624; Fort v. State, 52 Ark. 180. (b) Refusal of instruction where jury found state of facts to which it was inapplicable. Error in rejecting prayer for an instruction is not prej- 338 The Trial — Instructions to the Jury, § 89 udicial where the jury found a state of facts to which it was inappHcable. Ferris v. State, 54 Ark. 4; Rogers v. State, 60 Ark. 76. (c) Where instruction refused embodies both a correct and an incorrect proposition of law. Where an instruction embodying both a correct and an incorrect proposition of law is requested, it is not error to refuse to give it. Wooten v. State, 24 Fla. 335. {d) Refusal of instruction on the question of reasonable doubt. The trial court did not err in refusing to give the fol- lowing instructions requested by defendant: "The court instructs the jury that upon the trial of a criminal case, that if a reasonable doubt of any facts necessary to convict the accused is raised in the minds of the jury by the evidence itself, or by the ingenuity of counsel upon any hypothesis reasonably consistent with the evidence, that doubt is decisive in favor of the prisoner's acquittal." Strobher v. State, 55 Fla. 167. If any juror should enter- tain a reasonable doubt of defendant's guilt, it was his duty not to vote for a verdict of guilty. People v. Perry, 144 Cal. 748, 78 Pacific 284; Jones v. State, 105 Ga. 649, 31 Southeastern 574. {e) Refusal to charge that it is unsafe to convict on the uncorroborated testimony of an accomplice. A conviction will not be reversed because of the re- fusal to charge that it is generallly unsafe to convict on the testimony of an accomplice, where such testimony was corroborated, and the court charged that the ac- complice had turned state's evidence to avoid the con- 339 § 89 Errors in Criminal Proceedings. sequences of his part in the affair, and that the jury were to take the circumstances into consideration in weighing its testimony. Commonwealth v. Bishop, 165 Mass. 148, 42 Northeastern 560. (/) Refusal to instruct that defendant was not hound to burn anthracite coal. Where, in a trial for discharging smoke into the open air, in violation of Annotated Statutes, 1906, sec. 6208-19 (laws, 1901, p. 7Z, sec. 1), testimony that there was no difference in the smoke when anthracite or hard coal is burned, and that anthracite would not make as much smoke as bituminous coal was stricken, it was not prejudicial error to instruct that defendant was not bound to use anthracite instead of bituminous coal, nor adopt any particular kind of fuel. State v. Dower, 134 Mo. App. 352, 114 Southwestern 1104. (gr) Refusal to charge on circumstantial evidence. There was no prejudice to accused in refusing to charge on circumstantial evidence, where the court fully instructed the jury on reasonable doubt. State v. Ner- zinger, 220 Mo. 36, 119 Southwestern 379. {h) Refusal to charge regarding family of accused. Where accused, charged with murder, had a wife and children, some of whom were young, the refusal to charge that the jury should not permit any sympathy for or against the prosecution or accused to influence the con- sideration of the evidence, but the verdict must be based on the evidence, was not prejudicial to accused. State v. Heath (Mo. Sup.), 141 Southwestern 26. 340 The Trial— Instructions to the Jury. § 89 ■(i) Refusal to charge that there is but one assignment of perjury. Where perjury is assigned in several dififerent forms, it is not error in the court to refuse to charge that there is but one assignment of perjury. Dodge v. State, 24 N. J. L. 456. (/) Refusal to charge that defendant is entitled to a "reasonable doubt upon every and any question of fact in the cause/' It is not error for the court to refuse to charge that the defendant is entitled to a "reasonable doubt upon every and any question of fact in the cause." Acker v. State, 25 N. J. L. 25, 19 Atlantic 258. (k) Refusing instruction that the testimony of an ac- complice requires corroboration. Accused with two others, was jointly indicted for lar- ceny and receiving stolen property. The indictment as to the other defendants was dismissed, and they testified against accused on the charge of larceny, but gave no evidence as to his guilty knowledge in receiving the property. Accused was convicted of larceny. Held, that it was not error to refuse an instruction relating to the corroboration of the testimony of accomplices. Harless V. United States, 1 Ind. Ter. 447, 45 Southwestern 133. (/) Refusal to charge that the evidence of guilt must be so strong as to exclude every reasonable hypothesis of innocence, etc. The action of the court in refusing defendant's re- quests for instructions on a trial for murder, that "the 341 § 89 Errors in Criminal Proceedings. evidence of his guilt must be so strong as to exclude every reasonable hypothesis of his innocence," and that "mere suspicion, however strong, is not sufficient, the law re- quires proof to the exclusion of all reasonable doubt," was without prejudice in view of the finding of murder in the first degree. Hall v. Commonwealth, 89 Va. 171, 15 Southeastern 517. (w) Refusal to charge that jury might find defendant guilty or innocent of some offenses, and disagree as to others. The refusal of the court in a criminal case to instruct the jury, as requested, that they might find the defendant guilty or innocent of some of the offenses charged in the indictment, and return a verdict of disagreement as to the others, can not be held error prejudicial to the defendant, where he was found guilty upon one count and acquitted upon the others. It must be presumed that the verdict would have been the same had such instruction been given. Rieger v. United States, 107 Federal 916, 47 C. C. A. 61 ; writ of certiorari denied, 181 U. S. 617. (n) Refusal to give charge based on the testimony of one witness. On trial for hog theft, where it appeared that the only difference between the marks of defendant and of the adverse claimant, was the fact that defendant's mark included a hole in one ear, and that the hogs alleged to have been stolen had been recently marked in such re- spect, defendant was not prejudiced by the refusal of a charge based on testimony of a witness that he found defendant in the adjoining county in possession of one of the hogs in question the mark on which had not been 342 The Trial— Instructions to the Jury. § 89 changed. Areole v. State, 40 Tex. Cr. Rep. 51, 48 South- western 195. (o) Refusal to charge the presumption of innocence that the wife did Hot intend to poison defendant. Where one charged with murdering his wife defended on the ground that he was possessed of an insane delu- sion that she was poisoning him, and it was taken for granted by everyone that the charge against her was groundless, a refusal to instruct that it must be pre- sumed in favor of innocence, that the wife did not at- tempt to poison the defendant, was harmless, as the delusion, if it existed, did not constitute a defense. People V. Hubert, 119 Cal. 216, 51 Pacific 329. (p) On a trial for allowing his wife to remain in a house of prostitution, refusal to charge that there must he a union of act and intent. On a trial of accused for allowing and permitting his wife to remain in a house of prostitution, a refusal to charge that there must be a union of act and intent is harmless error, in view of a charge given which defined the legal significance of the words, "allow" and "permit." People v. Streuber, 121 Cal. 431, 53 Pacific 918. (g) Refusal to charge that if jury should reject the testi- mony of the state's only witness they must find for defendant. Where the jury are plainly charged as to the degree of evidence necessary to convict, a refusal to charge that if they should reject the testimony of the state's only witness, they must find for defendant, is harmless. State V. Sherman, 106 Iowa 684, 77 Northwestern 461. 343 §89 Errors in Criminal Proceedings. (r) Refusal to charge as to the lower grades of petit larceny. On trial for assault and robbery, defendant asked in- structions as to the various verdicts that could be given in all grades of petit larceny. The court instructed as to the law^ of robbery, and that, if the money was taken without force or violence, the jury could render a verdict of petit larceny, but refused to charge on the lower grades of petit larceny, and on conviction of robbery, de- fendants assigned such refusal as a ground for a new trial. Held, not error to deny a new trial, as, if the jury had returned a verdict of petit larceny, it was within the power of the court to have sent it back to designate the degree of petit larceny which they intended to cover. State v. Pastor, 111 La. 717. (s) Refusal to instruct that each juror should base his ver- dict on the law and evidence, etc. Where there was proof of breaking in and entering, defendant's possession of the stolen property, his flight, his plea of guilty at the preliminary trial, and his volun- tary confession, refusal of an instruction that each juror should base his verdict on the law and evidence, and should not consent to a verdict, merely because it is the verdict of another, or the majority of the jurors, which is a mere truism, is not ground for reversal. Lawson v. State, 87 Miss. 562, 40 Southern 325. {t) Refusal to charge that to convict the jury must find that defendant, at the time he received the money, formed an intent to steal it. Under Code Criminal Procedure, sec. 542, requiring the court to give judgment, without regard to technical 344 The Trial — Instructions to the Jury. § 89 errors or defects, a refusal to charge that the jury, to convict, must find that defendant at the time he received the money formed an intent to steal it, is not ground for reversal, where the court charged that he was guilty if he formed such an intent at any time prior to receiving the money. 72 N. Y. Supplement 253, 64 App. Div. 450, 16 N. Y. Cr. R. 67; reversed. People v. Miller, 169 N. Y. 339, 62 Northeastern 418. (m) Refusal of court to instruct to disregard remarks of prosecuting attorney that defendant made like representations to another to obtain money. Refusal of the court, on a prosecution for larceny, to instruct the jury to disregard the remarks of the prose- cuting attorney, in his opening argument, that defendant made like representations to another to obtain money from her, will not be held prejudicial, subsequent evi- dence of such representation having been stricken out, they being immaterial on the issue as submitted, and de- fendant not having renewed his motion as to the remarks. Judgment 81 N. Y. Supplement 718, 82 App. Div. 86 affirmed. People v. Hackett, 175 N. Y. 504, 67 North- eastern 1087. {v) In homicide trial, refusal of court to instruct as to who was the first aggressor. Where defendant testified that deceased attacked him, without cause or notice, and that he shot the deceased in self-defense, and deceased, in his dying declaration, stated exactly the contrary, and the jury returned a verdict of manslaughter, exceptions to the refusal of the trial judge to give instructions as to who was the first aggressor will be overruled on appeal, since the jury must have be- 345 § 89 Errors in Criminal Proceedings. lieved defendant's statement, and the error complained of, if any, was harmless. State v. Stuckey, 56 S. C. 576, 35 Southeastern 263. (w) Refusal to submit to jury plea of former conviction, where there was no testimony to support it. It is harmless error to refuse to submit a plea of former conviction to the jury, where there was no testi- mony to support it. Benson v. State (Tex. Cr. App.), 44 Southwestern 168. (x) The refusal of court to charge that confession that defendant killed deceased, will not convict unless the corpus delicti is otherwise established. The refusal of the court to specifically charge that the confession of defendant that he killed deceased is insuffi- cient to support a conviction, unless the corpus delicti is otherwise established, is not reversible error, where the corpus delicti is abundantly established, so that there is no controversy thereon. Gallegos v. State, 49 Tex. Cr. Rep. lis, 90 Southwestern 492. (3/) Refusal to charge that the mere presence of accused, without participation, would not make him a principal. In a prosecution for assault, where the court charged that the mere presence of a party at the commission of an ofifense does not make him a principal; but such presence, in connection with his companionship and his conduct at, before, and after the commission of the act, are circumstances from which participation may be in- ferred, refusal of instruction that the mere presence of accused, without some actual participation, would not 346 The Trial— Instructions to the Jury. § 89 constitute him a principal, was not error. Whittle v. State (Tex. Cr. App.), 95 Southwestern 1084. (s) In a prosecution for receiving stolen goods, refusal to charge that defendant did not have to explain how the goods came to he where they were. In a prosecution for receiving stolen goods, the refusal of a charge that certain facts did not cast upon defendant the burden of explaining how the goods came to be in the place where they were, was not prejudicial, where defendant did not ofifer any explanation, and denied all knowledge of the goods or their concealment. Curran V. State, 12 Wyo. 553, 76 Pacific 577. {aa) Refusal to charge that abusive and indecent language never justifies an assault. Where, in a prosecution for assault to do great bodily harm, the state's witnesses testified that though abusive and indecent language was used, prosecutor was struck first, while defendant's witness testified that no such language was used, refusal to charge that abusive and in- decent language never justifies an assault, and if em- ployed by defendants, or any of them, would not excuse prosecutor, or any of his companions, for assaulting de- fendants, was not prejudicial to them. State v. Krug (Iowa Sup.), 113 Northwestern 822. {bb) In a prosecution for seduction, refusal of charge as to insufficiency of conduct of parties to show en- gagement to marry. In a prosecution for seduction, refusal to charge that slight particulars, such as would attend an engagement of marriage, are not sufificient to show an engagement, 347 § 89 Errors in Criminal Proceedings. nor mere personal attention, unless from its duration and the conduct of the parties it is reasonably sufficient to show an engagement,, and that such attention must be more than reasonably to be expected from a gentle- man toward a lady whose society is agreeable, and not merely such as might be expected between two young people having illicit intercourse with each other, and that the corroboration of the prosecutrix as to the promise of marriage must be something more than suf- ficient to overcome accused's oath and the legal presump- tion of his innocence, is not reversible error, where the jury is charged that they can not find a promise of mar- riage on the prosecutrix's testimony alone, and she must be corroborated by other testimony, which may consist of proof of accused's statements in relation thereto, preparations of prosecutrix for marriage, continuous courtship from which an engagement may be presumed, and that the corroboration must be strong enough, when taken with the testimony of the prosecutrix to overcome accused's oath and the legal presumption of his inno- cence, and that the prosecutrix's evidence must be sup- ported by that of witnesses, or by corroboration of acts or circumstances sufficient to show the truth of the testimony in that respect. State v. Fogg, 206 Mo. 696, 105 Southwestern 618. (cc) Refusal of requested instruction concerning motive and intent, and the effect of advice of counsel. The refusal of requested instructions in a criminal case concerning motive and intent, and the eflfect of the advice of counsel, can not prejudice the case, where the trial judge, in instructing the jury on the subject, went as far in favor of the accused as it was possible for him 348 The Trial— Instructions to the Jury, § 89 to go consistently with right. WilHamson v. United States, 207 U. S. 425, 28 Supreme Court 163. (dd) Refusal of charge that to find defendant guilty, you must find, beyond a reasonable doubt, that at the time he used or afforded to use violence, etc. In a prosecution for aggravated assault, that any un- lawful violence to the person of another, with intent to injure him, whatever the means or degree of violence, was an assault and battery, any error in refusing a special charge that before you can find defendant guilty of an assault, you must find, beyond a reasonable doubt, that at the time he used or offered to use violence, it was his intention to injure such person, was harmless, the issue being sufficiently submitted. Stone v. State (Tex. Cr. App.), 123 Southwestern 582. {ee) Refusal of charge that if a witness has wilfully sworn falsely, the jury were at liberty to disregard his entire testimony. Defendant was not prejudiced by the court's refusal to charge that if a witness had wilfully sworn falsely the jury were at liberty to disregard his entire testimony, not shown by other' evidence to be, or which the jury did not believe to be true, where the court improperly, but to defendant's benefit charged that if a witness had wilfully sworn falsely as to any material matter, "it was the jury's duty" to distrust his entire testimony. People v. Delucchi (Cal. App.), 118 Pacific 935; People v. Martinez (Cal. App.), 128 Pacific 952. {ff) Refusal to give a cautionary instruction to the jury. While it is proper in certain cases to give instructions 349 § 89 Errors in Criminal Proceedings. of a cautionary character, it is not reversible error to refuse a cautionary instruction, although it could very properly have been given. People v. Baum, 159 111. App. 315. (gg) Refusal to charge that the jury should not permit any sympathy for or against the prosecution or accused to influence their consideration of the evidence. Where accused, charged with murder, had a wife and children, some of whom were young, the refusal to charge that the jury should not permit any sympathy for or against the prosecution or accused to influence the consideration of the evidence, was not prejudicial to accused. State v. Heath, 237 Mo. 255, 141 South- western 26. {hh) Where it was undisputed a hoy of 16 knew it was wrong to steal, refusal of instruction that he coidd not he convicted unless he understood the nature and illegality of his act. Where the accused, a boy of sixteen 3'^ears of age, knew it was wrong to steal, error in refusing an instruction that he could not be convicted unless he understood the nature and illegality of his act, v\ras harmless. Wind- ham V. State (Tex. Cr. App.), 150 Southwestern 613. {ii) Refusal to instruct that each juror shoidd make up his verdict for himself, and not surrender his own conviction because other jurors entertained dif- ferent opinions. A refusal to instruct that each juror should make up his verdict for himself, and not surrender his own con- victions because other jurors entertained different opin- 350 The Trial— Instructions to the Jury. § 89 ions, was not reversible error, where there was little conflict in the evidence, and the evidence conclusively showed guilt. Thomas v. State, 60 Southern 781. {jj) Refusal of requested charge that the testimony of witnesses employed to find evidence against de- fendant should be received with caution. Any error in refusing a requested charge that the testimony of witnesses employed to find evidence against defendant should be received with caution, was not prej- udicial to accused, where the evidence, as a whole, de- manded his conviction. Salt Lake City v. Robinson (Utah Sup.), 125 Pacific 657. {kk) Refusal to charge that the confession of accused must he disregarded if not voluntarily made. A refusal to charge that the confession of accused must be disregarded if not voluntarily made, or without a full understanding of the nature of it, held not prej- udicial in view of the evidence. Lopez v. State (Tex. Cr. App.), 166 Southwestern 154. (//) Refusal to instruct that counsel for the state should not apply degrading epithets to accused. It was not reversible error to refuse to instruct that counsel for the state should not apply epithets to ac- cused, and should not have called him a brute or a fiendish criminal, and that the jury should not consider such arguments, where the trial judge did not hear the argument, having been engaged in preparing instructions at the time, and where the prosecuting attorney denied having made the remarks attributed to him. McCline V. State (Tex. Cr. App.), 141 Southwestern 977. 351 § 90 Errors in Criminal Proceedings. Sec. 90. Instructions omitted. (a) Failure to fully charge upon the question of justifiable or excusable homicide. When the testimony upon a charge of homicide is so strong and clear as to preclude the conclusion that the killing was excusable or justifiable, and that a verdict of manslaughter in the third degree is fully sustained by the evidence, the verdict should not be set aside upon the ground that the judge did not instruct the jury fully upon the question of justifiable or excusable homicide. Brown v. State, 18 Fla. 472. (&) Failure of the court to charge on the question of reasonable doubt. In the absence of a request for a proper instruction defining the phrase "reasonable doubt," the failure of the court to define these words is not error. Bynum v. State, 46 Fla. 142. And as to the presumption of in- nocence. Gonger v. State (Tex. Cr. App.), 140 South- western 1112. And to acquit if in doubt. Ridens v. State, 41 Texas 199. (c) Omission to define "concealed weapons" and "disturb- ance of the peace." The mere omission of the court to define the phrases, "concealed weapons" and "disturbance of the peace," as used in a charge, in the absence of the presentation of correct definitions in a requested instruction, does not constitute error. Johnson v. State, 51 Fla. 44. {d) Failure to charge as to murder in the third degree. Where the evidence does not call for a charge upon 352 The Trial— Instructions to the Jury. § 90 murder in the third degree, the mere failure to give such a charge is not error. McDonald v. State, 55 Fla. 134. (e) Omitting to mention the venue in the charge. Charges of the court have reference to and should be considered in connection with the evidence in the case; and, where the venue is clearly proven as laid, it is not error to merely fail to refer to the venue in the charge to the jury, when no request for a charge upon the venue is made. McDonald v. State, 55 Fla. 134. (/) Failure to instruct the jury that they might recommend to mercy. The mere failure of the court to charge the jury that the statute authorizes a majority of the jury, in capital cases, to recommend to the mercy of the court, is not error. Webster v. State, 47 Fla. 108. (^r) The court may omit to give numerous instructions in detail. A court may properly omit the consideration of numer- ous instructions in detail, where it can see from the en- tire series read together that the jury were fully and fairly advised as to the law appliable to the facts in the case. Gilmore v. People, 124 111. 380. {h) Omitting from a charge the words, "if the evidence, warrants it." I An instruction that the jury might find defendant guilty of manslaughter under certain conditions, which omits the words, "if the evidence warrants it," is not er- roneous, where another instruction, practically the same, 353 Errors — 23. § 90 Errors in Criminal Proceedings. but including two degrees of murder, contained such words, and by another the jury were instructed that be- fore defendant could be convicted of any offense, his guilt must appear from the evidence beyond a reason- able doubt, as instructions must be taken together and considered as a whole. Shields v. State, 149 Ind. 395, 49 Northeastern 351. (i) Failure to charge that jury might agree as to one and disagree as to the other defendant. To instruct that the verdict might be guilty as to one and not guilty as -to the other defendant, and that, if both were guilty, the fines might differ in amount, as the jury should think proper from the evidence, is not er- roneous for failing to charge that the jury might agree as to one and disagree as to the other, as the defendants should have requested a special instruction on that point. It is not error for a court to fail, on its own motion, to instruct a jury on the subject of a contingency so re- mote as to find one defendant guilty and disagree as to the guilt of his codefendant. Morgan v. State, 117 Ind. 569, 19 Northeastern 154. (/) Failure to instruct upon involuntary manslaughter. Where, in a prosecution for homicide, the court gave an instruction on voluntary manslaughter, the defendant failed to ask for further instructions, defendant could not complain on appeal from a conviction of man- slaughter that the court failed to instruct on involuntary manslaughter. Fisher v. State, 77 Ind. 42; Barnett v. State, 100 Ind. 171; Williams v. State, 59 Tenn. (3 Heiskel) 376. 354 The Trial— Instructions to the Jury. § 90 {ky Omitting to define "subsidiary facts, evidentiary facts" and "essential elements of the crime charged." Objection to an instruction because of not defining the terms, "subsidiary facts, evidentiary facts" and "essential elements of the crime charged" used therein, is not available, an instruction covering the meaning not having been tendered and refused. Hinshaw v. State, 147 Ind. 334, 47 Northeastern 157. (/) Failure to instruct that certain evidence coidd be con- sidered only for the purpose of impeaching de- fendant as a witness. Where witnesses testified that from defendant's gen- eral moral character he could not be given full credit, defendant's substantial rights were not prejudiced by the failure to instruct the jury that such testimony could be considered only for the purpose of impeaching the de- fendant as a w^itness, as there was no doubt that de- fendant did attempt to commit an abortion, and sub- stantially the only defense was, that deceased did not die from the injuries he inflicted upon her. Wilson v. Com- monwealth, 22 Ky. L. R. 1251, 60 Southwestern 400; Jones v. United States, 14 Okla. 356, 78 Pacific 100. (m) Failure to reduce instructions to writing: Defendant has no ground of exception to a mere omis- sion of the court to reduce his instructions to writing and file them with the clerk before the retirement of the jury, as required by Statutes 1863, c. 180, sec. 1, where such omission has worked no harm to him, and the de- fendant not having requested him to do so, reduce his exceptions to writing, and file them with the clerk. Com- monwealth V. Barry, 93 Mass. (11 Allen) 263. 355 § 90 Errors in Criminal Proceedings. (m) Instruction failing to define "directly or indirectly." Where an instruction authorized conviction of defend- ant if he "directly or indirectly" sold whisky, error in not defining the meaning of these words was harmless, where the evidence clearly showed a sale to have been made by defendant passing his liquor to the purchaser and receiving from him the money therefor. State v. Bowerman, 140 Mo. App. 410, 124 Southwestern 41. (o) Failure to instruct on petit larceny. Failure to instruct on petit larceny was harmless, de- fendant having been convicted of burglary and larceny from the burglarized house, the larceny from the burg- larized house being grand larceny. State v. Moss, 216 Mo. 436, 115 Southwestern 1007. (/>) Failure to instruct that prosecuting witness consenting to the commission of sodomy made him an ac- complice. Where, in a prosecution for sodomy, the prosecuting witness was corroborated by two other witnesses, and defendant failed to request an instruction that if the prosecuting witness wilfully consented to the commission of the crime he was an accomplice, and his testimony would need corroboration, defendant could not, on ap- peal, complain that no such instruction was given. State V. Wilkens, 221 Mo. 444, 120 Southwestern 22. {q) Omission to instruct the jury as to the rules of law governing the disposition of the case. Where there is an omission to instruct the jury as to the rules of law governing the disposition of the case, but it is clear that the jury has formed a right conclu- 356 The Trial— Instructions to the Jury. § 90 sion, and no prejudice has resulted from the omission, it is not error which calls for a reversal of the judgment. Piarrou v. State, 47 Neb. 294, 66 Northwestern 422. (r) Nondirection where proper instruction not requested. Mere nondirection by the court below afifords no ground for reversal, where a proper instruction covering the point was not requested. Reynolds v. State, 53 Neb. 761, 74 Northwestern 330. {s) Omitting to instruct jury if they found defendant guilty of simple assault. Upon the trial of a defendant, under an indictment for felonious assault, the court charged the jury correctly, that they might convict him of simple assault, and that, if they did so, and if the offense merited a fine of more than fifty dollars, they should so assess it. The court omitted to instruct the jury as to their duty, if they found the defendant guilty of simple assault and that this offense merited a fine of less than fifty dollars. Held, this omission constitutes error, but not reversible error in the case, where the defendant is convicted of a felon- ious assault, with intent to commit manslaughter and sentenced to the penitentiary. Morton v. State, 91 Tenn. 435, 19 Southwestern 225. (t) In a prosecution for rape, failure to charge that jury might convict of simple assault. In a prosecution for rape, the failure of the court to charge that if the jury did not find defendant guilty of that offense, they might find him guilty of a simple as- sault, is not prejudicial to defendant, when the charge given permitted his acquittal, unless the jury found him 357 § 90 Errors in Criminal Proceedings. guilty of the greater offense. State v. Hanlon, 62 Vt. 334, 19 Atlantic 772>; Lofton v. State (Tex. Cr. App.), 128 Southwestern 384. Assault with intent to murder. (w) On a trial for robbery, omission in charge of word "fraudulent" before the word "taking," in de- fining robbery. Where the accused is shown to have taken the money from the prosecutor, as alleged in an indictment for rob- bery, and there is no claim of right on the part of the accused to such money, the omission of the word "fraud- ulent," in connection with the taking, by the court, in defining "robbery," was not calculated to injure the ac- cused's rights before the jury, so as to warrant a re- versal of an adverse verdict, within Code Criminal Procedure, sec. 723. Murphy v. State, 43 Tex. Cr. Rep. 515, 67 Southwestern 108. {v) Failure of the court to number and sign instructions. Failure of the court to number and sign the instruc- tions given in a criminal case, as required by Code Civil Procedure, sec. 3644, was without prejudice, there being no suggestion that any of the instructions which were given escaped, or that others crept into the record. Keffer v. State, 12 Wyo. 49, 72, Pacific 556. {w) Failure to charge as to the effect of the prisoner's statement. Where there is no request to charge as to the effect of the prisoner's statement, failure to do so is not ground for reversal, where no prejudice is shown. Cul- ver V. State, 124 Ga. 822, S3 Southeastern 316. 358 The Trial— Instructions to the Jury. § 90 {x) Failure to caution the jury when considering the evi- dence of alleged confessions. On a prosecution for homicide, where there was evi- dence by witnesses, almost wholly disinterested, of con- fessions by the defendant of his guilty participation in the alleged crime, and no attempt was made to impeach them or to contradict their testimony by proof of facts contrary to what they had sworn, and the statements were, in no sense casual, but were the direct and posi- tive statements of the defendant, fully corroborated by facts in evidence outside of his admissions, the refusal and failure to give cautionary instructions as to the duty of the jury in considering the evidence of the alleged confessions was not cause for reversal. State v. Hender- son, 186 Mo. 473, 85 Southwestern 576; People v. Ward- rip, 141 Cal. 229, 74 Pacific 744. (y) Failure of the court to tell the jury that they are the judges of the law. Failure to tell the jury, in a criminal case, that they are the judges of the law, is not reversible error, unless the defendant might have been prejudiced thereby. Ford v. State, 101 Tenn. 454, 47 Southwestern 703. \z) Failure to define "accident," where accused not en- titled thereto. Failure to define "accident," after charging that the killing, if accidental, was excusable under the law, is not error, where accused was not entitled to an instruc- tion as to accidental killing. Ewalt v. State, 100 Ga. 80, 25 Southeastern 846. 359 § 90 Errors in Criminal Proceedings. (aa) Failure to instruct that jury disregard statement of county attorney as to improper relations of de- fendant with another daughter. In a prosecution for incest with a daughter, the court struck out an answer by a witness to the effect that defendant had sexual intercourse with another daughter, whereupon the county attorney stated that he understood that to show sexual intercourse of the defendant with any other daughter was corroborative of the fact that he had sexual intercourse with the complaining witness. Held, that, in the absence of any showing that the county attorney did not make the statement in good faith, an omission by the court to instruct the jury to disregard the statement, as requested by the defendant, is not reversible error. State v. Kouhns, 103 Iowa 720, 73 Northwestern 353. (bb) Failure to instruct that fury could not convict if they believed deceased was killed by his father, and not by one of the defendants. As the jury could not properly have convicted, under the instructions, if they believed that deceased was killed by his father, and not by one of the defendants, the failure to specially instruct the jury to that effect was not error. Mcintosh v. Commonwealth, 23 Ky. L. R. 1222, 64 Southwestern 951. (cc) Omission to instruct that if defendants made separate sales they should be acquitted. Where defendants, being licensed merchants, were charged with selling liquor, without a license therefor, the omission of the court to instruct that, if defendants 360 The Trial— Instructions to the Jury. § 90 made separate sales they should be acquitted, was not prejudicial error where defendants were each admittedly guilty, and could not have been convicted under separate indictments. State v. Stock, 95 Mo. App. 65, 68 South- western 579. (dd) Failure to instruct on the question of good character. Failure to instruct on the question of evidence of good character, in the absence of a request for a particular in- struction stating the law, is not reversible error. Sweet v. State, 75 Neb. 263, 106 Northwestern 31; Common- wealth V. Caraffa, 222 Pa. 297, 71 Atlantic 17; Morris v. Territory (Okla. Cr. App.), 99 Pacific 760; rehearing denied, 101 Pacific 111. {ee) Omission to charge as to the purpose for which cer- tain evidence was admitted. The omission to instruct with reference to the purpose for which certain evidence was admitted, was not ground for reversal, where no prejudice was shown. Brown v. State (Tex. Cr. App.), 43 Southwestern 986. {ff) In a prosecution for attempted rape, failure to in- struct that prosecutrix must be shown to have vigorously resisted. Under Code Criminal Procedure, art. 723, providing that a judgment of conviction shall not be reversed for error in disregarding any of the eight preceding articles, which relate to instructions, unless such errors are cal- culated to injure the defendant, error in failing to in- struct in a prosecution for assault, with intent to rape, that prosecutrix must be shown to have resisted with all her power, is harmless, when the resistance made is 361 § 90 Errors in Criminal Proceedings. shown to have been successful. Barnett v. State, 42 Tex. Cr. Rep. 302, 62 Southwestern 765. {gg) Failure in charge to limit the effect of evidence by a witness who had been convicted of perjury. Failure to limit in the charge the effect of evidence as to a witness having previously been convicted of perjury is not error, where the testimony could not possibly have been used to the defendant's injury or considered by the jury for any purpose except as affecting the wit- ness's credibility. Chavarria v. State (Tex. Cr. App.), 63 Southwestern 312. {hh) Failure to charge that jury could not convict if game -of "craps" was played at private residence. In a prosecution for playing craps, where the only evidence in the case showed that the game, if played, was in a pasture, and "not near any house," failure to charge that the jury could not convict, if the game was played at a private residence, was not prejudicial. Nicholson v. State, 44 Tex. Cr. Rep. 434, 71 South- western 969. (m) Failure to define perjury in the language of the statute. In a prosecution for perjury, where the court charged the jury as to what it was necessary for them to find, beyond a reasonable doubt, in order to convict, and in so doing pointed out all the essential elements of the crime, failure to define the crime in the statutory language was harmless. State v. Douette, 31 Wash. 6, 71 Pacific 556. 362 The Trial — Instructions to the Jury. § 90 (//) Failure to give instructions on admissions or state- ments by accused. Failure to give the jury the usual instructions on ad- missions or statements made by accused, to the effect th^t what he stated against himself should be taken as true, in relation to certain letters written by him, which tended to show admissions on his part, was not prejudi- cial to accused. State v. Oakes, 202 Mo. 86, 100 South- western 434. {kk) Plea of former conviction, failure to charge not to consider same if found not guilty. Where defendant, charged with robbery and former conviction, was found guilty of the robbery, he was not prejudiced by the court's failure to charge the jury positively not to consider the question of former con- viction, in case they found defendant not guilty of the robbery. State v. Gordon (Mont. Sup.), 90 Pacific 173. (//) Failure to charge that if defendant committed as- sault as a defense jury should find him not guilty. Where, in a prosecution for assault to murder, the evidence conclusively showed that no one participated in the difficulty except defendant and prosecutor, defendant was not prejudiced by the court's failure to charge that if defendant committed the assault as a means of defense against prosecutor and others acting with him, the jury should find hirri not guilty. Holmes v. State (Tex. Cr. App.), 102 Southwestern 408. (mm) Omission to instruct upon the necessity of cor- roboration. Where the testimony is fully corroborated, and the 363 § 90 Errors in Criminal Proceedings. evidence as to the identity of the accused is sustained by evidence in corroboration, it is not prejudicial error to omit to instruct as to the necessity of corroboration, when the only instruction requested by the defendant does not fully and correctly state the lavir. Younger v. State (Neb. Sup.), 114 Northv^^estern 170. (mm) Omission to charge that the state must disprove ac- cused's statements to secure a conviction. Accused having testified fully as to the manner of the killing, so that the state's case did not rest entirely on statements of accused as to the killing, proved by the state by other witnesses, the court's omission to charge that the state must disprove the accused's statements to secure a conviction, if error, was not reversible. Casey v. State (Tex. Cr. App.), 113 Southwestern 534. (oo) Failure to charge that defendant's connection with the burglary must be shown. An instruction which, after defining burglary, charged that, if such force were used and such injuries inflicted, the jury would be authorized to convict, but if not, they should acquit, must have been understood by the jury to mean that they could not convict without proof that de- fendant broke and entered the house, error in failing to charge that the connection of defendant with the burglary must be shown was harmless. Petersen v. State, 6 Ga. App. 491, 65 Southeastern 311. (pp) Omission of the word "not" before "guilty" in an instruction. A conviction will not be reversed for a clerical omis- sion of the word "not" before the word "guilty" in an 364 The Trial— Instructions to the Jury. § 90 instruction, where it is manifest that the jury was not thereby misled. Wilhams v. State (Miss. Sup.), 49 Southern 513. (qq) Instruction upon flighty without adding that it should not be considered unless induced by conscious guilt. Failure in an instruction upon flight to state that it should not be considered, unless induced by conscious guilt, is harmless, where guilt is manifest. Middleton V. State, 7 Ga. App. 1, 66 Southeastern 22. (rr) Failure to charge that the jury have power to recom- mend that a felony be punished as a misdemeanor. While the judge should charge that the jury have power to recommend that the felony be punished as a misdemeanor, in cases where Penal Code, 1895, sec. 1436, authorizing such recommendation is applicable, the fail- ure to so charge is not reversible error, where the jury recommended defendant to the mercy of the court. Ripley v. State, 7 Ga. App. 679, 67 Southeastern 834. (ss) On a trial for burglary, failure to charge on explana- tion for possession of recently stolen property. Where, on a trial for burglary, with intent to steal, the evidence showed an entry and the larceny of a harness, and that accused offered to sell a harness, and explained that his father had given it to him to sell, and that at the time of his explanation he was not sus- pected of the crime, and that the harness belonged to the prosecutor, and the father of accused, as a witness for him, testified that he had not owned a harness and had not given any harness to his son to sell, the failure to charge on explanation of recently stolen property was 365 § 90 Errors in Criminal Proceedings. not prejudicial to accused, since a charge on the subject would have been injurious to him because making prom- inent the testimony of his father. Jones v. State (Tex. Cr. App.), 132 Southwestern 476. Omission of word "recent" from charge. Rayfield v. State (Ga. App.), 72 Southeastern 515. (tt) Instruction in prosecution for robbery omitting to re- quire the commission of an assault or violence on the person robbed, or putting him in fear, etc. Error in an instruction in a prosecution for robbery, in failing to require, as an element of the offense, the commission of an assault or violence on the person robbed or putting him in fear of life or great bodily harm, as required by Penal Code, 1895, art. 856, held not prejudicial, where violence was shown. Johnson v. State (Tex. Cr. App.). 150 Southwestern 623. (till) Failure to define the word "wantonly" in a prosecu- tion for arson. N Failure to define the word "wantonly," as used in re- vision, 1905, sec. 3338, in a prosecution for arson, held not prejudicial. State v. Millican, 158 N. C. 617, 74 Southeastern 107. (vv) Failure to instruct upon circumstantial evidence. In the trial of one for knowingly permitting gaming on premises under his control, where the evidence was positive, except upon the question of knowledge by the accused, and the court instructed that accused was not guilty, if he rented a room to be used as a barber shop, and it was used for gaming purposes, without his knowl- edge, failure to instruct on circumstantial evidence was 366 The Trial — Instructions to the Jury. § 90 harmless. De Los Santos v. State (Tex. Cr. App.), 146 Southwestern 919. (ww) Instruction failing to define "prostitution" and "pros- titute." In a prosecution for pandering, defendant was not prejudiced by the court's assumption that the house to which defendant took prosecutrix was a house of prosti- tution, and in faiHng to define "prostitution" and "prosti- tute." Stevens v. State (Tex. Cr. App.), 150 South- western 944. {xx) Instruction submitting question of breaking without specific reference either to a daytime or night- time burglary. Instructions submitting questions of breaking without specific reference to either a daytime or night-time burglary, held not error, where the evidence would sup- port a conviction of one but not of the other, and the verdict was general. Shornwebber v. State (Tex. Cr. App.), 156 Southwestern 222. iyy) Failing to instruct that it was for the jury to deter- mine whether the interval between the provocation and the homicide was sufficient for the voice of reason to be heard. Failure to instruct that it was for the jury to de- termine whether the interval between the provocation and the homicide was sufficient for the voice of reason to be heard, held harmless, where, under the evidence and the statement of the accused, he could not have been injured thereby. Warner v. State, 139 Ga. 613, 77 Southeastern 808. 367 / § 91 Errors in Criminal Proceedings. (sz) Failure to instruct that accused was not guilty of assault, with intent to murder, unless actuated by, malice and intent to kill. Failure to instruct that accused was not guilty of as- sault, with intent to murder, unless actuated by malice and intent to kill, if error, was harmless, where he was convicted only of shooting at another. Reddingfield v. State (Ga. App.), 79 Southeastern 581. Sec. 91. The verdict. (a) Verdict clearly sustained and nothing calculated to mislead the jury. The judge charged the jury upon the subject of in- toxication and insanity. There was no testimony as to the prisoner being a drunkard or that he had been drink- ing, or was at the time of the killing under the influence of liquor, or as to any insanity or mental aberration or delusion, and nothing calculated to raise a reasonable doubt as to his being sober and free from such mental affliction. Held, that the refusal of a new trial should not be reversed, even if there was error in the charge, the verdict being clearly sustained by the evidence, and nothing appearing calculated to mislead the jury or to operate unjustly to the prisoner in view of the facts of the case. Willingham v. State, 21 Fla. 761. (&) Conviction of murder in the second degree, lesser de- gree than indicted for. There being credible evidence of murder in the first degree, a verdict of murder in the second degree will not be disturbed. Stone v. State, 57 Fla. 28. 368 The Trial— The Verdict. § 91 (c) On a trial for robbery error cured by verdict for the lightest punishment. On a trial for robbery, an instruction with regard to the larger offense of threatening to kill or maim can not be regarded as having operated to the prejudice of ac- cused, and is not ground for reversal, where the verdict is for the least possible punishment under the statute. Needham v. People, 98 111. 275. Minimum penalty shows absence of prejudice. Gay v. State (Tex. Cr. App.), 45 Southwestern 573; Elliott v. State, 39 Tex. Cr. Rep. 242, 45 Southwestern 711; Wilkerson v. State (Tex. Cr. App.), 57 Southwestern 966; Stripling v. State, 47 Tex. Cr. R. 117, 80 Southwestern 376. {d) Verdict not received in open court. According to the principles of the common law, in all capital cases the verdict must be received in open court and in the presence of the prisoner. The rule, however, did not apply to a case of inferior misdemeanor. Holli- day v. People, 4 Oilman (111. Supreme) 111. {e) Absence of defendant when the verdict is returned. Where the fact of the presence of the accused in court when the verdict was returned and the sentence was pronounced can, by any fair intendment, be gathered from the record, aided by recitals in the bill of exceptions as a part of the record, the judgment will not be re- versed for the absence of the defendant. Padfield v. People, 146 111. 660. (/) Failure to give form of verdict of acquittal to the jury. A conviction will not be reversed because in giving 369 Errors — 24. § 91 Errors in Criminal Proceedings. forms of verdict to the jury, the court gave none for acquittal, no such form having been asked by the ac- cused. Hodge V. State, 85 Ind. 561 ; Long v. State, 95 Ind. 481. (g) Failure of verdict to show on which count convicted. Defendant can not complain because the verdict does not show under which count he was found guilty, where the indictment contains two counts, under one of which, if he were found guilty, the fine would be greater than under the other, and the verdict is general, and the fine assessed is the lowest that could be assessed under the indictment. Taylor v. State, 49 Ind. 555. (h) Where the evidence is conflicting the verdict is con- clusive. Where the evidence is such that the jury, in the ex- ercise of their discretion, could have properly found the verdict rendered, it will not be reversed upon appeal, merely because of a conflict in the evidence. State v. Maher, 74 Iowa 82; Gamble v. State, 5 Tex. App. 421; Brown v. State, 2 Tex. App. 189. (t) Consistency between conviction of higher crime and acquittal of lesser. The jury were instructed, if they found defendants guilty of "breaking and entering," as charged in the first count of the indictment, to find for defendants on the third count, which charged one defendant with lar- ceny in a building, and the other with inciting commis- sion of that offense. The jury found defendants guilty on both counts, but the court directed a verdict for de- fendants on the third count. Held that, as the facts neces- 370 The Trial— The Verdict. § 91 sary to sustain the verdict on the first count charging the higher offense were consistent with those charged in the third, defendants were not prejudiced by such direc- tion. Commonweakh v. Lowrey, 158 Mass. 18, 32 North- eastern 940. (/) Any evidence sufficient to uphold verdict. Where there is any evidence to support a verdict in a criminal case, it will not be reversed. Vowells v. Com- monwealth, 83 Ky. 193, 7 Ky. L. R. 176; Hinkle v. Commonwealth, 23 Ky. L. R. 1988, 66 Southwestern 816. (k) Claim that guilt was not proved to the exclusion of a reasonable doubt. Where there is testimony tending to show the guilt of the accused, there can be no reversal upon the ground that his guilt was not proved to the exclusion of a rea- sonable doubt. Hess v. Commonwealth, 9 Ky. L. R. 590, 5 Southwestern 751 ; Williams v. Commonwealth, 13 Ky. L. R. 753, 18 Southwestern 364. (/) Entering of verdict a mere matter of form. If the jury find the substance of the charge, the man- ner of entering the verdict, whether upon one count or upon four, if erroneous, can only be regarded as an im- perfection or lack of form not prejudicing the defense upon the merits, and constitutes no ground of reversal. Donnelly v. State, 26 N. J. L. 463; State v. Wells, 1 N. J. L. 424. (m) General verdict on indictment charging larceny and false pretenses. A general verdict upon an indictment charging larceny 371 § 91 Errors in Criminal Proceedings. and false pretenses, in different counts, is good, although one of the offenses charged is infamous, and the other is not, and the law, in such case, refers the verdict to the higher offense; and, while it is contrary to the better practice, yet it is not reversible error for the trial judge to instruct the jury, in such case, to return a general verdict, if this court can say the defendant was not prejudiced thereby, the evidence clearly establishing his guilt of the higher offense. Davis v. State, 85 Tenn. 522, 3 Southwestern 348. (n) Good and bad counts will sustain a general verdict. When an indictment embraces some good and some bad counts a general verdict of guilty will be sustained, since the law imputes the verdict to the good count. Henderson v. State, 2 Tex. App. 89. (o) Verdict not disturbed when clearly right. A verdict will not be disturbed unless wrong, oppres- sive or unjust. Thompson v. State, 1 Tex. App. 56; Leverett v. State, 3 Tex. App. 214; Lockhart v. State, 3 Tex. App. 567. {p) Where transcript showed a verdict of "guilty." A cause was reversed because it appeared from the transcript that the jury found the defendant "guity." On error, the corrected transcript sent up showed that the word "guilty" was used by the jury, and not "guity." The case was affirmed. Taylor v. State, 5 Tex. App. 569. {q) Verdict failing to contain the name of the defendant. Where the record shows conclusively that defendant was the prisoner who was found by the jury "guilty of 372 The Trial— The Verdict. § 91 murder in the first degree, as charged in the indictment," the judgment entered thereon will not be reversed, al- though the verdict did not contain the name of the de- fendant. Thornton v. Commonwrealth, 65 Va. (24 Grat- tan) 657. (r) General verdict on several counts upheld if one sus- tains judgment. A general verdict and judgment on an indictment con- taining several counts, can not be reversed on error, if any one of the counts is good and warrants the judgment. Woods V. United States, 174 Federal 651, 98 C. C. A. 405; writ of certiorari denied, 216 U. S. 620; Kalan v. United States, 196 Federal 888, 116 C. C. A. 450; Hotel- ling v. State, 2 O. C. D. 366, 3 O. C. C. 630. {s) Where verdict clearly shows that no weight was given to improper evidence. A judgment will not be reversed because of the admis- sion of improper evidence, where the verdict clearly shows that no weight was given to it by the jury. Litton V. Commonwealth, 101 Va. 833, 44 Southeastern 923. ( / ) Improper insertion in blank left in the instruction of sum assessed by the jury as the value of the property robbed. On a prosecution for robbery, the court embodied in an instruction a form of verdict, in which a blank was left for the assessment of the value of the property, if de- fendant was found guilty. A verdict was returned in the form indicated, but on a separate sheet the value of the property being assessed at a certain sum, and it appeared 373 § 91 Errors in Criminal Proceedings. that someone had written the same sum into the blank left in the instruction. It did not appear when such writing was made, but it was conceded that the blank was not filled when the charge was delivered to the jury. Held, that it could not be assumed that the act of writ- ing the sum in the instructions worked any prejudice to defendant. State v. Matto (Iowa Supreme),, 98 North- western 600. (ii) An average or quotient verdict. A verdict in a criminal case, assessing the punishment of the defendant at a certain number of years imprison- ment, will not be set aside upon proof that each member of the jury wrote down the number of years which he thought proper, and that the several numbers thus writ- ten down were added up and the sum divided by twelve, when there is no proof that the jurors agreed beforehand to be bound by the result thus obtained, and when, in fact, the number of years finally determined upon was slightly different from such result, the jury having taken several votes after going through the process of addi- tion and division. In order to vitiate a verdict de- termined by lot, the proof must show that the jury, be- fore drawing lots, agreed to be bound by the result. Cravens v. State, 55 Tex. Cr. Rep. 519, 16 Anno. Cases 907. {v) The rights of accused are not assumed to he prejudiced by formal defects in a verdict. The presumption will not be indulged that the rights of the accused are prejudiced because of formal defects in the verdict. Williams v. Commonwealth, 140 Ky. 34, 130 Southwestern 807. 374 The Trial— Findings §92 (w) Verdict signed "Ira A. Stout" as foreman, when his name on the jury list was "Ira Stout." Where a verdict was signed by "Ira A. Stout," as fore- man, while his name in the jury list was "Ira Stout," but no question was raised as to the identity of the juror, the error in the verdict was not reversible. State v. Rogers (Iowa Sup.), 137 Northwestern 819. {x) Submission of form of verdict which contained the name of a particular penitentiary. The submission of a form of verdict to the jury which contained the name of the particular penitentiary was not reversible error. People v. Stein, 23 Cal. App. 108, 137 Pacific 271. Sec. 92. Findings submitted to the jury or omitted. (a) Failure to find on material issue which would have been adverse to appellant. Failure to find on a material issue will not work a re- versal of a judgment, if the findings omitted must have been adverse to appellant. People v. Center, 66 Cal. 551. (b) Failure of jury to find on an issue not sustained by the evidence. Failure to find on issue not shown to be sustained by the evidence is harmless, especially when it is not shown that evidence was submitted in relation to such issue. People V. McCue (Cal. Sup.), 88 Pacific 899. 375 § 92 Errors in Criminal Proceedings. (c) Failure to require a finding that accused was not mar- ried to the girl. In a prosecution for taking a female under eighteen years old from her father for purposes of concubinage, error in not requiring a finding that accused was not married to the girl, was not reversible, where accused practically admitted that they were not married, and no issue was raised as to their marriage. State v. Baldwin, 214 Mo. 290, 113 Southwestern 1123. 376 CHAPTER IV. Proceedings After the Verdict — Variances. Sec. 93. Variances. 94. Alleged errors in the record and in omissions therefrom. 95. The judgment. 96. The sentence. 97. Motion for a new trial. 98. Other rulings. Sec. 93. Variances. (a) Unpre judicial variance. Where the essential elemepts of crime are correctly stated, and it does not appear that a variance is prejudi- cial to the defendant, it will, under the express, provi- sions of Revised Lav^^s, c. 218, sec. 35, be held harmless. Commonwealth v. Graustein, 209 Mass. 38, 95 North- eastern 97. (b) Variance in Christian or surname, or both. Under Revised Statutes, 1899, sec. 2534 (Annotated Statutes, 1906, p. 1508), providing that whenever there shall appear to be any variance between the indictment or information and the evidence, in the Christian or surname, or both, of any person therein described, it shall not be deemed ground for an acquittal, unless the court shall find that the variance is material to the merits of the case and prejudicial to the defense; it is for the trial court to determine whether any variance between the pleadings and proof as to a name is material. State V. O'Brien, 228 Mo. 404, 128 Southwestern 732. 377 § 93 Errors in Criminal Proceedings. (c) Variance hetzveen the information and the proof as to the character of beer. In a prosecution for selling intoxicating liquor, in vio- lation of the local option laws (Laws, 1887, p. 179), any variance because the information charged the selling of "intoxicating liquor, to wit, one bottle of beer," while the proofs show that the liquor sold was a very light beer, which might not be intoxicating, was not of itself prejudicial to accused, and, in view of Revised Statutes, 1909, sec. 5115, in the absence of any circumstances showing that he was surprised thereby, or otherwise in- jured, was not reversible error. State v. Burk, 151 Mo. App. 188, 131 Southwestern 883; judgment affirmed. 234 Mo. 574, 137 Southwestern 969. (d) Variance must he upon some essential element of the offense. The word "obtain" as used in sec. 13104, General Code, is not limited to getting, securing or appropriating money or property as owner. It includes as well the getting or securing of money by way of loan. Mere matter of unnecessary particularity or immaterial de- scription contained in an indictment is not sufficient upon which to base a charge of variance between pleading and proof. Such variance must be based upon some essential element of the ofTense, or some essential part of such element. A mistrial should not be ordered in a cause simply because some error has intervened. The error must prejudicially affect the merits of the case and the substantial rights of one or both of the parties, and this is true of the temporary absence of the judge, as of any other departure from due process of law, during the trial of a cause. Tingue v. State, 90 O. S. 368. 378 Proceedings After the Verdict — Variance. §93 (e) Variance between indictment and the proof. Under Code Criminal Procedure, sec. 482 (Wilson's Revised and Annotated Statutes, 1903, sec. 5618), provid- ing that, on an appeal, the court must give judgment without regard to technical errors or defects, not affect- ing the substantial rights of the parties. Where the in- dictment charges that the check was deHvered to K. Bros., a firm doing business as K. Bros., that the check was in fact passed to K. Bros., a corporation doing busi- ness under such corporate name, of which I. K. & J. K. were stockholders and officers, the variance is immaterial. Wells V. Territory (Okla. Cr. App.), 98 Pacific 483. (/) Variance in the number of weapons employed in mak- ing the assault. In a prosecution under an information charging assault with a deadly weapon, evidence that the assault was committed with two weapons is not a prejudicial vari- ance. People V. Oppenheimer, 156 Cal. 733, 106 Pacific 74. {g) Variance in the name of the cattle company owner of the cattle stolen. In a prosecution for stealing cattle alleged to belong to the "E. Ranch & Cattle Co. of New Mexico," any variance between the name of the owner alleged and that in the certificate of the brand put in evidence, which was "E. Land & Cattle Co. of Richardson, county of Lincoln, New Mexico," was not reversible error, where there was but one one cattle company of that name in the territory, and accused identified the cattle killed by him, and claimed to have been stolen, as belonging to Z79 § 94 Errors in Criminal Proceedings. the company named in the indictment. Territory v. Leslie (N. M. Sup.), 106 Pacific 378. (h) Variance in the middle initial of the name of the fore- man of the jury. Variance in the verdict and the record in the middle initial of the foreman of the jury, was harmless. State V. Moffitt (Iowa Sup.), 136 Northwestern 908. Sec. 94. Alleged errors in the record and in omissions therefrom. (a) Failure of the record to show that the grand jury presented the indictment to the court. Where the record shows an indictment properly in- dorsed and filed, an arraignment, plea, trial and motion in arrest of judgment; held, that it was too late on the hearing in this court, for the first time to object that the record does not show that the grand jury presented to the court the indictment upon which the trial was held. Gallagher v. State, 17 Fla. 370. (&) Record of evidence excluded shows same was in fact received. If it appears from the record that the evidence in- tended to be elicited by the excluded question was in fact received, so that no prejudice was done, the error is cured. Gondolfo v. State, 11 O. S. 114. (c) Record not chronicling plea of not guilty. Defendants assign for error that the record fails to show a plea of not guilty. This is true, but it does show that the jury were sworn "to try the issues joined," 380 Proceedings After the Verdict — ^The Record. § 94 the necessary inference from which is, that this plea was interposed. In this respect the case differs from Lynch V. State, 99 Tenn. 124, 41 Southwestern 348; which is relied on by plaintiff in error. There the entry on the minutes failed to show a plea, or anything from which its existence could be implied. For this reason the case was reversed. Here, however, it being clearly im- pliable that such plea was filed, the statute forbids a reversal because the clerk of the court omitted to file or enter it of record. Muse v. State, 106 Tenn. 181, 182, 61 Southwestern 80. (d) Record prevails over motion contradicting it. Where the record shows that the verdict assessed "five years" imprisonment, and the motion in arrest omitted the word "years," the record prevails. Long v. State, 1 Tex. App. 710. (^) Admission of record of former conviction of like of- fense. The improper admission of a record of former con- viction of a like offense under Revised Statutes, 1889, sec. 3959, which imposed the maximum penalty on a second conviction is not prejudicial where the verdict shows the minimum penalty. State v. Waters, 144 Mo. 341, 46 Southwestern 173. (/) Complaint charging accused with a misdemeanor not made a part of the record. Where an information charging accused with a misde- meanor was based on an affidavit, which was made a part of the record, the conviction will not be disturbed be- cause a complaint charging accused with the misde- 381 § 95 Errors in Criminal Proceedings. meaner did not become a part of the record in the case, owing to the lack of a file mark by the clerk. Golden v. State (Tex. Cr. App.), 146 Southwestern 945. Sec. 95. Judgment. (a) Correct judgment not disturbed though error appears upon the record. The court will not reverse a judgment which is right upon the whole case, though error appears upon the record. State v. Lawson, 14 Ark. 114. '(&) Where sufficient reason exists judgment should he sustained. A judgment should be affirmed, if among the defenses interposed there was neither one that was valid nor, if there is, any other sufficient reason, under the law, for sustaining the judgment. State v. Williams, 10 O. C. C. n. s. 530. (c) Acquittal on erroneous evidence will not reverse con- viction on other grounds. Erroneous evidence on a question on which defendant was acquitted is not ground to reverse a conviction on other grounds. Mamson v. State, 24 O. S. 590. (d) Incompetent evidence not effecting conviction. A letter written by the accused to the prosecuting wit- ness is not competent evidence against him, but where he failed to take the stand and deny its authenticity, and his guilt was established beyond a doubt by compe- tent testimony and his own admission, the judgment finding him guilty will not be reversed. Smith v. State, 15 O. C. C. n. s. 223. 382 Proceedings After the Verdict — ^The Judgment. § 95 (e) When conviction on circumstantial evidence upheld. Where circumstantial evidence points strongly to the defendant as the guilty agent in causing the death of a party who is clearly shown to have met a violent death, and is without material conflict, this court can not say that the jury were not warranted in concluding that the defendant was guilty beyond a reasonable doubt. Hous- ton V. State, SO Fla. 90; Alderson v. Commonwealth, 25 Ky. L. R. 32, 74 Southwestern 679. (/) When conviction will not be disturbed. Where there is evidence from which all the elements of the crime of which the defendant stands convicted may be legally inferred, and it does not appear that the jury were not governed by the evidence adduced at the trial, the appellate court will not disturb the verdict. Adams v. State, 56 Fla. 1 ; McDonald v. State, 56 Fla. 74. {g^ Where evidence failed to show death was caused by gunshot wound. Where there is no hint of another cause of death, the appellate court will not reverse for lack of proof on this point, where it is proven that the person shot suffered great agony and died two days thereafter, and a non- expert witness testifies to the location of the wound, and that the bullet went through the body. Bellamy v. State, 56 Fla. 43. (h) Direct conflict in the evidence insufficient to set aside the judgment. A direct conflict as to a question of fact in a criminal proceeding, submitted to the court substantially upon the 383 § 95 Errors in Criminal Proceedings. testimony of the complaining witness and the defendant is not sufficient to warrant the setting aside of the judg- ment of the trial court, for the reason that the trial court had the opportunity of seeing the witnesses, observe their conduct, etc., and had better opportunity of reaching a just conclusion and determining where the truth lies, than a court that knows nothing about the case except what appears in the written record. Neifeld v. State, 3 O. C. C. n. s. 551, 13 O. C. D. 246; Breeze v. State, 12 O. S. 146. (i) Judgment for violating the Sunday closing law upheld. In an action for the violation of an ordinance for Sun- day closing, a judgment will not be reversed upon the ground that there was no evidence showing that the per- son convicted before the mayor kept open the place on Sunday, there being evidence to support the proposition, and no evidence offered to rebut it. Emery v. Elyria, 8 O. N. P. 208, 11 O. D. n. p. 316. (/) When improper cross-examination insufficient to re- verse the judgment of conviction. If the state be permitted upon the cross-examination of a witness for defendant to interrogate him respecting a supposed prior statement supposed to be inconsistent with his present testimony, and the witness denies mak- ing the remarks attributed to him, and no offer is made by the state to prove such former prior statement, no ground of reversal exists on account of such cross-ex- amination, even though defendant's objections thereto ought to have been sustained. Myers v. State, 43 Fla. 500. 384 Proceedings After the Verdict — ^The Judgment. § 95 (&) Judgment rendered before motion for a new trial was filed. A conviction will not be reversed because the court rendered judgment before a motion for a new trial was filed and passed on, where it does not appear that ac- cused was in any way prejudiced by the action of the court. Reed v. State, 147 Ind. 41, 46 Northeastern 135. (/) Rioters convicted^ errors as to one not available to others. Where it is charged that two defendants, with many others unknown, committed a riot, and they are several- ly convicted, though tried together, an error that affects only one of them will not reverse the conviction as to the other defendant. State v. McQueen, 69 N. J. L. 522, 55 Atlantic 1006. (ot) Forfeiture erroneously made a part of the judgment of conviction. Upon a motion for a writ of error in the supreme court by a defendant who had been convicted and sentenced for burglary, it was urged that the lower court had erred in making it a part of the sentence that the defendant's goods and chattels should be forfeited, and that his lands and tenements should be forfeited for Hfe. Held that, though the judgment would have been better without the addition of the forfeiture, yet as the law would have implied the forfeiture, though not made a part of the judgment, the defendant had not suffered any injury by the form of the judgment, and the motion was denied. Commonwealth v. Pennock, 3 Sergeant & Rawle (Pa.) 199. 385 Errors — 25. § 95 Errors in Criminal Proceedings. (m) Five witnesses for state, six for accused, judgment sustained. Where five witnesses for the state testified to one State of facts, and six for the accused to another, the conviction will not be disturbed by the appellate court. Brown v. State, 1 Tex. App. 154. (o) Conviction under void ordinance, but judgment author- ised by general law. Where a person was convicted under an ordinance which was void, as providing a penalty for selling in- toxicating liquors without a license, in conflict with the general law of the state, but the judgment was in terms authorized by the general law, it is valid. Ex parte Sweetman (Cal. App.), 90 Pacific 1069; Ex parte Huil- lade (Cal. App.), 90 Pacific 1071. (p) Conviction, after motion of defendant for peremptory instruction is overruled. If, after accused's motion for a peremptory instruction, at the close of the commonwealth's evidence, is er- roneously overruled, he introduces evidence which, to- gether with the commonwealth's evidence, is sufficient to take the case to the jury, judgment of conviction will not be reversed because of the overruling of the motion for a peremptory instruction, the rule being the same in a criminal case as in a civil action. Gordon v. Common- wealth, 146 Ky. 61, 141 Southwestern 1186. 386 Proceedings After the Verdict— The Sentence. § 96 Sec. 96. The sentence. (a) Lowest punishment cures exclusion of evidence in mitigation. The exclusion of evidence in mitigation of punishment in a criminal case is not prejudicial, where the jury as- sessed the lowest punishment for the offense prescribed by law. Crampton v. State, 37 Ark. 108; Bennefield v. State, 62 Ark. 365. (b) Conviction on two counts and punishment less than might have been imposed on one. On the trial of an indictment containing five counts, the trial judge directed the jury that they must disre- gard all the counts except two; there was a verdict of guilty, and judgment was rendered for punishment less than might have been imposed for one of the counts submitted to the jury. Held, that under Acts 1888, p. 915, sec. 136, providing that a judgment given on an indictment shall not be reversed for imperfection in form, or for any error, except such as may have prejudiced de- fendant in maintaining his defense upon the merits ; nor does it appear that there was any error at the trial prej- udicial to defendant. The judgment will therefore not be reversed on appeal. State v. Baum, 64 N. J. L. 410, 45 Atlantic 806; State v. Mount, 72 N. J. L. 365, 61 At- lantic 259; B.aird v. United States, 196 Federal 778, 116 C. C. A. 7Z. (c) Error in awarding term of imprisonment. In a prosecution for obtaining money by extortion, the clerk, in arraigning the prisoner, stated that the minimum punishment was imprisonment for three years, and the 387 § 96 Errors in Criminal Proceedings. maximum five. The jury fixed the imprisonment at five years. The minimum punishment was, in fact, one year instead of three. Held that, as the jury fixed the maximum period of confinement, the error by the clerk was not sufficient to warrant setting aside the verdict. Mitchell V. Commonwealth, 75 Va. 856. (d) Failure to ask accused if he has anything to say why judgment should not be pronounced against him. Failure to ask accused if he has anything to say why judgment should not be pronounced against him is not ground for reversal. Gillespie v. People, 176 111. 238, 52 Northeastern 250; Lillard v. State, 151 Ind. 322, 50 Northeastern 383. (e) Sentence of imprisonment which does not include dis- franchisement. A sentence of imprisonment which does not include disfranchisement, which must be fixed by the court under Acts 1897, p. 69, is not error of which defendant can complain. Miller v. State, 149 Ind. 607, 49 Northeastern 894, 40 L. R. A. 109. (/) Assessing fine in excess of constitutional limit. Assessing a fine in excess of the constitutional limit is not reversible error, as so much of the sentence as is in excess is a nullity. Madden v. State (Tenn. Sup.), 67 Southwestern 74. {g) Conviction on four counts, sentence concurrent, in- sufficiency of one or more counts. Where defendants were convicted on four counts and sentenced for the same term on each, the sentences to 388 Proceedings After the Verdict — The Sentence. § 96 be concurrent, defendants were not prejudiced by the in- sufficiency of one or more of the counts, if one of the counts on which they were convicted was good. Im- boden v. People (Colo. Sup.), 90 Pacific 608; Gall v. United States, 151 Federal 412, 80 C. C. A. 642. (h) Failure to comply with statute providing for cumula- tive sentence on conviction of tzvo or more crimes. Where petitioner was convicted in a territorial court of two offenses, under a territorial law for which the punishment prescribed was imprisonment for not to ex ceed seven years, and was sentenced to imprisonment for five years on each conviction, the terms to run concur- rently, he was not so prejudiced by the court's failure to comply with the statute providing that where a per- son is convicted of two or more crimes, the sentence shall be cumulative, that he should be released on habeas corpus by a federal court. Connetta v. Haskell, 158 Federal 285, 87 C. C. A. 111. (i) Sentencing for a definite term contrary to the statutory provision. Code, sec. 4932, fixes the punishment for adultery at imprisonment in the penitentiary not more than three years. Code, Supplement, 1907, sec. 518-13, pro- vides that, after July 4. 1907, whenever any person over sixteen is convicted of a felony subsequent to that date, except treason or murder, the court in imposing sentence of confinement in the penitentiary shall not fix its limit of duration, but the term shall not exceed the maximum provided by law for the crime of which the person was convicted. Sees. 5718-14 and 5718-a30 define the powers and duties of the board of parole, but no power to pardon 389 § 97 Errors in Criminal Proceedings. is given it. Defendant, convicted of adultery committed after July 4, 1907, was sentenced for one year. Held, that the error in sentencing him for a definite term was harmless, the sentence being for a shorter term than the maximum prescribed by law. State v. Parkins (Iowa Sup.), 120 Northwestern 62. (/) Assessing punishment at "seven years in the penitenti- ary," instead of "seven years' confinement in the penitentiary." The error in assessing punishment at "seven years in the penitentiary," instead of "seven years' confinement in the penitentiary," is harmless. Baker v. State (Tex. Cr. App.), 118 Southwestern 542. Sec. 97. Motion for a new trial. (a) Erroneous decision upon motion for a new trial. There can be no reversal in a criminal case for the erroneous decision of the court on a motion for a new trial, or upon a challenge to a juror for cause. Coleman V. Commonwealth, 9 Ky. L. R. (abstract) 145. (b) Matters first presented on motion for a new trial net reviewable on appeal. In a criminal case matters first presented to a trial court by a motion for a new trial can not be reviewed on appeal, as an error in overruling a motion for a new trial is not subject to exception. Curtis v. Common- wealth, 110 Ky. 845, 23 Ky. L. R. 267. 62 Southwestern 886. (c) Alleged newly discovered evidence. Where, in a proceeding to procure a new trial, on al- 390 Proceedings After the Verdict— Appellate Rulings. § 98 leged grounds of newly discovered evidence warranting conviction prima facie well taken, any error in the admis- sion of evidence on the countershowing was wholly im- material. Blanchard v. State (Ga. App.), 69 South- eastern 313. Overruling challenge to juror and for new trial on ground of new evidence, can not be considered separately. Smith v. Commonwealth, 13 Ky. L. R. 612, 17 Southwestern 868. Sec. 98. Other appellate rulings. (a) When proceedings disbarring attorney from the right to practice are upheld. Where an appellate court is reviewing the proceedings of an inferior court disbarring an attorney, it should not interfere with the conclusions of the latter court upon the evidence, unless it is clear that the latter court, view- ing its actions in the light of the rule which requires clear proof of the act and of the bad motive of the attorney has decided erroneously, and there is a plain case of wrong and injustice to the attorney. State v. Young, Judge, 30 Fla. 85. (b) Exceptions to portions of charges considered in con- nection with each other. In considering exceptions to portions of charges, they should, all bearing on the subject, be considered in con- nection with each other. Richard v. State, 42 Fla. 528. (c) Conflict produced by the testimony of two witnesses tending to establish an alibi. Where the testimony for the state establishes the offense against an accused beyond a reasonable doubt, 391 § 98 Errors in Criminal Proceedings. it will not be set aside by the appellate court because of conflicts produced by the testimony of two witnesses in- troduced for the defense tending to estabhsh an alibi for the defendant. Magill v. State, 42 Fla. 197. (d) Erroneous denial of an appeal. The denial of an appeal is no ground of error where, though it ought to have been granted, it would have been useless. People v. Kohlsach, 66 111. App, 505. (e) Alleged incompetency of counsel assigned to defend accused. The alleged incompetency of counsel assigned by the court for the defense of the accused is not ground for a new trial, competency for the duty assigned him is pre- sumed. Murphy v. People, 104 111. 528. (/) Denial of a separate trial. A denial of a separate trial is not ground of error, un- less the discretion of the court to grant or deny the re- quest was abused, the motion in such case being ad- dressed to the sound legal discretion of the court. Doyle V. People, 147 III. 394. {g) Court's discretion as to the order of proof. The discretion of the trial court as to the order of proof will not be reviewed on error, unless it clearly ap- pears to have been abused. Walker v. Commonwealth, 7 Ky. L. R. (abstract) 46. (/i) Erroneous ruling which was reasonably retracted. A ruling, if erroneous, can not be availed of, if so rea- sonably retracted that by such ruling no prejudice could 392 Proceedings After the Verdict— Appellate Rulings. § 98 result to the party complaining of it. McVey v. State, 57 Neb. 471, 77 Northwestern 1111. (i) Denial of rights to accused guaranteed by the sixth amendment of the Constitution of the United States. The sixth amendment to the constitution of the United States does not limit or control prosecutions in the state courts, but operates alone on prosecution in United States Courts. Anderson v. State, 8 Okla. 90, 126 Pacific 840, 2)2) Anno. Cas. 314. (/) Burden of showing prejudice from the erroneous ex- clusion of evidence lies upon the appellant. The burden of showing prejudice from the erroneous exclusion of evidence lies on appellant ; and hence, where, on a trial for homicide, the court improperly excluded as calling for a conclusion, a question to a witness, whether he noticed if defendant appeared to be scared as witness advanced upon him, and defendant made no offer to show what the witness would have answered that de- fendant did seem scared, the supreme court can not presume that he would have so answered, so as to make the ruling prejudicial error. State v. Byrd, 41 Mont. 585, 111 Pacific 407. 393 TABLE OF CASES. (References are to sections and subsections.) A Acker v. State, 52 N. J. L. 25, 89j. Adams v. State, 49 Tex. Cr. R. 361, 64h. V. State, 46 Fla. 1, 95f. Aholtz V. People, 121 111. 560, 43f. Alderson v. Commonwealth, 25 Ky. L. R. 32, 95e. Alexander v. State, 40 Tex. Cr. R. 395, 57dd. Allen V. State (Tex. Cr. App.), 141 S. W. 983, 12a. Allison V. State, 74 Ark. 444, 5r. Allyn V. State, 21 Neb. 593, 50j. Anderson v. State, 56 Tex. Cr. R. 360, 38c. V. State (Tex. Cr. App.), 159 S. W. 847, 43jjjj. V! State, 8 Okla. 90, 98i. Andrews v. State, 21 Fla. 598, 12a. V. State, 15 O. C. C. n. s. 241, 53a. Anthony v. State, 44 Fla. 1, 18e. Areole v. State, 40 Tex. Cr. R. 51, 89n. Armour Packing Co. v. United States, 209 U. S. 56, 59ee. Arnold v. Commonwealth, 21 Ky. I^. R. 1566, 52b, 55d. Arrington v. State (Ala.), 52 S. 928, 44aaa. Ashley v. State (Tex. Cr. App.), 126 S. W. 589, 40e. B Backer v. State (Tex. Cr. App.), 124 S. W. 912, 43fff. Bader v. State (Ind.), 94 N. E. 1009, 81e. Bailey v. State (Ark.), 150 S. W. 1030, 60ii. Baird v. United States, 196 Fed. 778, 96b. 395 Table of Cases. (References are to sections and subsections.) Banks v. State, 58 Ark. 513, 36a. V. State (Tex. Cr. App.), 18 S. W. 542, 96j. Ball V. United States, 147 Fed. 32, 52i. Bandalow v. People, 90 111. 218, 73c. Banks V. State (Tex. Cr. App.), 150 S. W. 184, 72d. Barber v. State, 13 Fla. 675, 12a.. Barnard v. United States, 162 Fed. 618, 43cc. Barnes v. Territory (Okla.), 91 P. 848, 56h. Barnett v. State (Ga.), 70 S. E. 868, 73f. V. State, 100 Ind. 171, 90j. V. State, 42 Tex. Cr. R. 302, 90ff. Bartell v. State, 28 O. S. 669, 50b. Basket v. Commonwealth, 19 Ky. L- R. 1995, 55c. Bate V. People, 8 111. 644, 59a. Bealment v. State (Ark.), 150 S. W. 129, 52ii. Bear v. People, 124 111. 576, 66b. Belden v. State (Tenn.), 127 S. W. 134, 4b. Bellamy v. State, 56 Fla. 43, 51c, 95g. Bennefield v. State, 62 Ark. 365, 96a. Bennett v. State, 84 Ark. 97, 5v. V. State, 72 Ark. 398, 64e. V. Commonwealth, 150 Ky. 604, 25u. Benson v. State (Ark.), 45 S. W. 883, 21v. V. State (Tex. Cr. App.), 101 S. W. 224, 25d. V. State (Tex. Cr. App.), 44 S. W. 168, 89w. Birr v. People, 113 111. 645, 36c. Black V. State, 119 Ga. 746, 5911. Blemer v. People, 76 111. 265, 50e. Blocher v. State (Ind.), 98 N. E. 118, 44sss. Bloom V. State, 155 Ind. 292, 27b. Blue V. State (Tex. Cr. App.), 106 S. W. 1157, 31d. Boggs V. United States, 10 Okla. 424, 48a. Bonds V. State (Tex. Cr. App.), 160 S. W. 100, 59h. Booth V. State (Tex. Cr. App.), 145 S. W. 56kk. Boswell V. State (Tex. Cr. App.), 127 S. W. 820, 57aaa. 396 Table of Cases. (References are to sections and subsections.) Bowerman v. State (Ark.), 129 S. W. 80, 75b. Bowles V. Commonwealth, 103 Va. 816, 13b. Boyd V. State, 57 Tex. Cr. R. 250, 43ddd. Boyle V. State, 105 Ind. 469, 57a. Bradley v. State, 3 Ala. App. 212, 25d. Braxton v. State, 157 Ind. 213, 64d, 87b. Breckenridge (In re), 34 Nev. 275, 49k. Breeze v. State, 12 O. S. 146, 95h. Brewer v. State, 72 Ark. 145, 9c. V. Commonwealth, 11 Ky. L. R. 601, 64g. Brewster v. State (Tex. Cr. App.), 165 S. W. 218, 17v. Brice v. State, 56 Tex. Cr. R. 82, 25m. Bridges v. State, 110 Ga. 247, 53cc. Bromley v. State (Wis.), 119 N. W. 850, 70d. Brook V. State, 4 O. C. C. 160, 43c. Brooks V. State (Mo.), 124 U. S. 394, 25i. Brown v. State (Tex. Cr. App.), 154 S. W. 567, 43hhhh. V. State (Neb.), 129 N. W. 545, 14kk, 25q. V. Commonwealth, 90 Va. 671, 27b, 28a. V. State (Tex. Cr. App.), 43 S. W. 986, 90ee. V. State, 81 Miss. 143, 59x. V. State, 42 Fla. 184, 61a. V. United States, 2 Ind. Ter , 77a. V. State, 18 Fla. 472, 90a. V. State, 2 Tex. App. 189, 91h. V. State, 1 Tex. 154, 95n. Browning v. State (Tex. Cr. App.), 142 S. W. 1, 43nnn. Brundage v. State, 7 Ga. App. 726, 60cc. Bryan v. State (Tex. Cr. App.), 139 S. W. 981, 14mm, 14nn. Bryant v. State, 106 Ind. 549, 41c. Buchanan v. State, 84 Miss. 332, 14u. Bunge V. State (Neb.), 127 N. W. 899, 17r. Burger v. State (Ga.), 76 S. E. 863, 12a. Burke V. People, 148 111. 70, 50f. Burrow v. City of Hot Springs, 85 Ark. 396, 60p. 397 Table of Cases. (References are to sections and subsections.) Burt V. State, 38 Tex. Cr. R. 397, 17m. Byer v. Territory (Okla. Cr. App.), 103 P. 532, 27c. Bynum v. State, 46 Fla. 142, 90b. Cabera v. State, 56 Tex. Cr. R. 141, 43rr. Cabinass v. State (Ga. App.), 68 S. E. 849, 15c. Caliss V. Commonwealth, 145 Ky. 641, 25t. Callahan v. State, 21 O. S. 306, 29a, 38a. Calloway v. State, 50 Tex. Cr. R. 72, 43ii. Camp V. State (Tex. Cr. App.), 57 S. W. 96, 53v. Campbell v. State, 15 O. C. C. n. s. 514, 53b. Canter v. State, 1 Tex. App. 403, 12e. Capps V. State (Ark.), 159 S. W. 193, 53e. Cargill V. Commonwealth, 93 Ky. 578, 5f, 17c. Carlton v. Commonwealth, 13 Ky. L. R. 946, 17c. Carroll v. State, 45 Ark. 539, 27a. V. State, 71 Ark. 403, 57gg. V. People, 136 111. 456, 59f. Carter v. State (Miss.), 54 S. 734, 25s, 46c. V. State (Tex. Cr. App.), 127 S. W. 215, 44ccc. Carver v. State (Tex. Cr. App.), 148 S. W. 746, 17u. Casey v. State (Tex. Cr. App.), 113 S. W. 534, 90nn. Catchings v. State, 6 Ga. App. 790, 78a. Catron v. State, 52 Neb. 389, 14d. Caw V. People, 3 Neb. 357, 59z. Chancey v. State (Tex. Cr. App.), 124 S. W. 426, 57rr. Chandler v. State (Okla. Cr. App.), 105 P. 375, 84b. Chavarria v. State (Tex. Cr. App.), 63 S. W. 312, 90gg. Childress v. State (Tex. Cr. App.), 103 S. W. 864, 60k. Childs V. State (Ark.), 136 S. W. 285, 43ttt. Choran v. State, 49 Tex. Cr. R. 301, 82e. Churchill v. State, 56 Tex. Cr. R. 213, 43ss. Cina V. United States, 191 Fed. 718, 44y. 398 Table of Cases. (References are to sections and subsections.) City of Topeka v. Regnor, 8 Kans. App. 279, 84c. Clark V. State, 8 Baxter (Tenn.) 591, 20b. V. State, 40 Tex. Cr. R. 127, 43aaa. V. State (Tex. Cr. App.), 136 S. W. 260, 66m. Clarke v. People, 53 Colo. 214, 5ii. V. State, 32 Ind. 67, 59c. Clary v. State (Tex. Cr. App.), 150 S. W. 919, 17v. Clawson v. State, 59 N. J. L. 434, 14j. Clayton v. State, 100 Ind. 201, 53f. Clement v. United States, 141 Fed. 305, 5p. Cluverius v. Commonwealth, 81 Va. 787, 27 j. Cochran v. Commonwealth, 113 Ga. 726, 56k. Cohen v. United States, 157 Fed. 651, 23b. Coker V. State (Tex. Cr. App.), 160 S. W. 366, 62j. Cole V. State, 120 Ga. 485, 59t. Colee V. State, 75 Ind. 511, 88c. Coleman v. Commonwealth, 9 Ky. L. R. 145, 97a. Collett V. Commonwealth (Ky.), 121 S. W. 426, 25f. Collins V. State (Tex. Cr. App.), 101 S. W. 992, 60i. V. People, 103 111. 21, 14f. V. People, 98 111. 584, 41b. Colson V. State (Tex. Cr. App.), 105 S. W. 507, 43kk. V. Commonwealth, 2 Ky. L,. R. 321, 67a. Commonwealth v. Andrews, 132 Mass. 263, 5h. V. Barry, 93 Mass. 263, 90m. V. Bishop, 165 Mass. 148, 89e. V. Brown, 150 Mass. 330, 54b. V. Carafifa, 222 Pa. 297, 90dd. V. Cody, 165 Mass. 133, 83a. V. De Masi, 234 Pa. St. 570, 13g. V. Devlin, 141 Mass. 423, 61b. V. Fencez, 226 Pa. 114, 56dd. V. Gilbert, 165 Mass. 45, 54a. V. Graustein, 209 Mass. 38, 93a. 399 Table of Cases. (References are to sections and subsections.) Commonwealth v. Hall, 164 Mass. 152, 54c. V. Hann, 27 Pa. Superior Ct. 33, 83e. V. Keenan, 140 Mass. 481, 5g. V. King, 202 Mass. 379, 7a. V. Klein, 42 Pa. Superior Ct. 66, 44nnn. V. Leach, 160 Mass. 542, 5h. V. Lowrey, 158 Mass. 18, 91i. V. McGrath, 185 Mass. 1, 59n. V. Mallet, 27 Pa. Superior Ct. 41, 39c. V. Min Sing, 202 Mass. 121, 44c, 44n. V. Payne, 242 Pa. 394, 52kk. V. Pennock, 3 Serg. & R. (Pa.) 199, 95m. V. Redzenowitsz, 39 Pa. Superior Ct. 175, 60w. V. Rossi, 47 Pa. Superior Ct. 297, 22b. V. Spencer, 212 Mass. 438, 13f. V. Stout, 14 Ky. L. R. 576, 59d. V. Turner, 44 Mass. 19, 76b. V. Williams, 41 Pa. Superior Ct. 326, 53gg. V. Wingate, 72 Mass. 485, 53cc. V. Zillafrow, 207 Pa. 274, 14u, 53s. Cone V. Commonwealth, 20 Ky. L. R. 721, 52w. Conger v. State (Tex. Cr. App.), 140 S. W. 1112, 60dd. Connetta v. Haskell, 158 Fed. 285, 96h. Connors v. State, 45 N. J. L. 211, 5i. Cook V. United States, 159 Fed. 919, 21i. Cope V. Commonwealth, 20 Ky. L. R. 72, 57g. Cornell v. State, 104 Wis. 527, 5m. Cornelius v. Commonwealth, 54 Ky. 539, 14e. Coulter V. State (Ark.), 161 S. W. 186, 63k. Cragg V. Commonwealth, 31 Ky. L. R. 873, 60o. Crain v. State (Ala.), 52 S. 31, 44ddd. Crampton v. State, 37 Ark. 108, 96a. Cravens v. State (Ark.), 128 S. W. 1037, 57tt. V. State, 55 Tex. Cr. R. 519, 91u. Crawford v. United States, 30 App. D. C. 1, 44f, 57g. 400 Table of Cases. (References are to sections and subsections.) Crews V. People, 120 111. 317, 12d. Crickett v. Commonwealth, 10 Ky. L,. R. 159, 53j. Cross V. State, 132 Ind. 65, 44h. Crowell V. State, 56 Tex. Cr. R. 480, 53t, 60v. Culver V. State, 124 Ga. 822, 90w. Curran v. State, 12 Wyo. 553, 89z. Curtis V. Commonwealth, 110 Ky. 845, 97b. Cutler V. State (Ariz.), 138 P. 1048, 57g. D Dacey v. People, 116 111. 655, 50d, 73d. Davis V. State (Tex. Cr. App.), 107 S. W. 855, 43nn. V. State (Tex. Cr. App.), 154 S. W. 550, 57eee. V. State, 54 Fla. 34, 44ee. V. State, 51 Neb. 301, 59y, 88f. V. State, 152 Ind. 145, 60c, 84c. V. State, 45 Tex. Cr. R. 166, 72b. V. State, 85 Tenn. 522, 91m. V. State (Tex. Cr. App.), 124 S. W. 104, 57pp. V. State (Tex. Cr. App.), 156 S. W. 1171, 62i. Dean v. State, 130 Ind. 237, 23c, 57c. Debney v. State, 45 Neb. 859, 55d. Deilks v. State, 141 Ind. 23, 66c. Delehoyde v. People, 212 111. 554, 64e. De Los Santos v. State (Tex. Cr. App.), 146 S. W. 919, 90vv. Dent v. State, 43 Tex. Cr. R. 126, 77b. Denham v. State, 22 Fla. 664, 14a. Dennis v. State, 118 Ala. 72, 43gg. Derrick v. State, 91 Ark. 237, 57oo. Dickens v. State, 50 Fla. 17, 51b. Diegel v. State, 33 O. C. C. R. 82, 57aaaa. Dill v. State (Wis.), Ill N. W. 1109, 87g. Dimmick v. United States, 135 Fed. 257, 28c, 44g, 52j. Dinwiddie v. State, 103 Ind. 101, 44j. 401 Errors — 26. Table of Cases. (References are to sections and subsections.) Ditzler V. State, 4 O. C. C. 551, 26a. Dodge V. State, 24 N. J. L. 456, 89i. Doll V. People, 145 111. 253, 27b. Donald v. State, 21 O. C. C. 124, 23a. Donnelly v. State, 26 N. J. L. 463, 87c, 911. Dooley v. State (Tex. Cr. App.), 108 S. W. 675, 60r. Dotterer v. State, 172 Ind. 357, 43h. Doyle V. People, 147 III. 394, 98f. Drew V. United States, 192 Fed. 854, 26d. Drysdale v. State (Tex. Cr. App.), 156 S. W. 685, 71f. Duck V. State (Tex. Cr. App.), 45 S. W. 397, 12g. Duffin V. People, 107 111. 113, 57a. Dugue V. State, 56 Tex. Cr. R. 214, 44ee. Duncan v. State, 171 Ind. 444, 42b, 441. V. People, 134 111. 110, 59c. Dunn V. People, 109 111. 635, 66b. V. State, 58 Neb. 807, 88g. Ehrlick V. Commonwealth, 33 Ky. L. R. 979, 56x. Elliott V. State, 39 Tex. Cr. R. 242, 91c. Emery v. Elyria, 8 O. N. P. 208, 95i. Engle V. State, 50 N. J. L. 272, 56f. Epps V. State, 102 Ind. 539, 44i. Ercook V. State, 169 Ind. 488, 88c. Evans V. State, 120 Ala. 269, 30a. Evers V. State, 84 Neb. 708, 56z. Ewalt V. State, 100 Ga. 80, 90z. Falkner v. State (Ala.), 44 S. 409, 47b. Farris v. State (Tex. Cr. App.), 144 S. W. 249, 73g. Fason V. State (Tenn.), 6 Baxter 431, 17f. 402 Table of Cases. (References are to sections and subsections.) Fay V. State (Tex. Cr. App.), 109 S. W. 55, 40d. Ferguson v. State (Ark.), 129 S. W. 813, 53hh. Ferrell v. State, 45 Fla. 26, 14c. Ferris v. State, 54 Ark. 4, 89b. Fields V. State (Tex. Cr. App.), 117 S. W. 806, 59ggg. Fillington v. State (Tex. Cr. App.), 140 S. W. 1102, 77i. Fisher v. State, 77 Ind. 42, 90j. Fithington v. State, 35 Texas 125, 53m. Fitzpatrick v. State, 37 Ark. 238, 88a. Flahive v. State (Ga. App.), 73 S. E. 536, 51s. Flanagan v. People, 214 111. 170, 53z. Fletcher v. State (Tex. Cr. App.), 153 S. W. 1134, 53pp. Florence v. State (Tex. Cr. App.), 134 S. W. 689, 271. Flowers v. State (Fla.), 52 S. 11, 65b. Ford V. State, 11 O. C. C. n. s. 324, 27c. V. State, 101 Tenn. 454, 90y. Forman v. Commonwealth, 86 Ky. 354, 14j. Fowler V. Commonwealth (Miss.), 49 S. 625, 44pp. V. Commonwealth, 7 Ky. L. R. 528, 53aa, 55a. Frank v. State (Ga.), 80 S. E. 1016, 56rr. Franklin v. State (Tex. Cr. App.), 140 S. W. 1081, 59ttt Freeman v. Commonwealth, 21 Ky. L. R. 639, 59d. Fulkerson v. State (Tex. Cr. App.), 121 S. W. 1111, 12a Fuller V. State, 50 Tex. Cr. R. 14, 14aa. Fuqua V. State (Ala.), 56 S. 751, 43gg. Gallegos v. State, 49 Tex. Cr. R. 115, 89x. Gallagher v. State, 17 Fla. 370, 94a. Gamble v. State, 5 Tex. App. 421, 91h. Gang Noon Wood v. United States, 121 Fed. 830, 44z. Gardner v. United States, 5 Ind. Ter. 150, 49i. Garst V. United States, 180 Fed. 339, 81d. Gay V. State (Tex. Cr. App.), 45 S. W. 573, 91c. 403 Table of Cases. (References are to sections and subsections.) George v. State, 59 Neb. 163, lOf. Genz V. State, 59 N. J. L. 488, 27d. Gilbert v. Commonwealth, 21 Ky. L. R. 415, 51i, 52a. Gill V. United States, 151 Fed. 412, 96g. V. State, 38 Ark. 524, 44b. Gillespie v. People, 176 111. 238, 96d. Gilmore v. State, 124 111. 380, 90g. Gistavenson v. State, 10 Wyo. 300, 85a. Gladden v. State, 12 Fla. 562, 12a. Glenn v. United States, 177 Fed. 679, 44yy. Godwin v. State, 44 Tex. Or. App. 599, 12g. Golden v. State (Tex. Cr. App.), 146 S. W. 94f. Gondolfo V. State, 11 O. S. 114, 43e, 94b. Gonger v. State (Tex. Cr. App.), 140 S. W. 1112, 90b. Goode V. State (Tex. Cr. App.), 125 S. W. 597, 44ss. Gordon v. Commonwealth, 146 Ky. 61, 95p. Graham v. State (Tex. Cr. App.), 123 S. W. 691, 25n. Graves v. State (Ala.), 52 S. 34, 44ddd. Gregg V. City of Kingfisher (Okla. Cr. App.), 125 P. 1093, 121. Griffin v. State, 40 Tex. Cr. R. 312, 52m. Griffin V. State, 49 Tex. Cr. R. 440, 68b. Griner v. State, 121 Ga. 614, 18b. Grissom v. State (Ark.), 113 S. W. 1011, 86b. Grubb V. State, 117 Ind. 277, 56b. Gruoalary v. United States, 145 Fed. 81, 44g. Guenther v. State (Wis.), 118 N. W. 640, 101, 59eee. H Hack V. State, 141 Wis. 346, 10m. Hahn v. State (Tex. Cr. App.), 165 S. W. 218, 17v. Hall V. Commonwealth, 20 Ky. L. R. 90, 51 f. V. Commonwealth, 155 Ky. 541, 60mm. V. Commonwealth, 89 Va. 171, 891. V. State (Tex. Cr. App.), 126 S. W. 573, 57yy. 404 Table of Cases. (References are to sections and subsections.) Hamer v. State (Ark.), 150 S. W. 142, 51t. Hardesty v. State (Neb.), 146 N. W. 1007, 57g. Harding v. Commonwealth, 105 Va. 858, 25d. Hampton v. State, 54 S. 722, 44qqq. Hannum v. State, 90 Tenn. 647, 86a. Harless v. United States, 1 Ind. Ter. 447, 89k. Harmon v. State (Ala.), 52 S. 348, 26e. V. Territory, 15 Okla. 147, 571. Hamage v. State, 7 Ga. App. 573, 14ii. Harper v. State, 83 Miss. 412, 61b. Harris v. State (Tenn.), 149 S. W. 911, la. Harrold v. Commonwealth, 10 Ky. L. R. 70, 5f. Hart V. State, 149 Ind. 585, 59j. V. State (Tex. Cr. App.), 121 S. W. 508, 57nn. Hartman v. United States, 168 Fed. 30, 83d. Hasson v. Commonwealth, 10 Ky. L. R. 1054, 13b. Hauser v. People, 210 111. 253, 25h. Havill V. United States (Okla. Cr. App.), 115 P. 119, 17s. Hawkins v. State (Tex. Cr. App.), 71 S. W. 756, 57aa. Hayden v. Commonwealth, 20 Ky. L. R. 274, 12h. Hearne v. State, 165 S. W. 596, 57cccc. Heath v. State, 101 Ind. 512, 49c. Heatly v. Territory, 15 Okla. 72, 12a. Hedger v. State (Wis.), 128 N. W. 80, 661. Hellens v. State, 22 Ark. 207, 73a. Henderson v. State, 50 Tex. Cr. R. 266, 5m. V. State (Tex. Cr. App.), 101 S. W. 208, 57jj. V. State, 2 Tex. App. 89, 91n. Henning v. State, 106 Ind. 386, 59i. Henry v. State (Tex. Cr. App.), 54 S. W. 592, 69c. Hess V. State, 5 Ohio 5, 27d. V. Commonwealth, 9 Ky. h. R. 590, 91k. Hester v. State (Tex. Cr. App.), 116 S. W. 1150, 63c. Heyl V. State (Ind.), 10 N. E. 916, 57d. Hicks V. Commonwealth, 3 Ky. L. R. 87, 13b. 405 Table of Cases. (References are to sections and subsections.) Hines V. State, 57 Tex. Cr. R. 216, 43eee. Hinman v. State (Tex. Cr. App.), 127 S. W. 221, 12a, 43nnn. Hinshaw v. State, 147 Ind. 334, 90k. Hinson v. State (Fla.), 56 S. 674, 21 f. Hintz V. State, 125 Wis. 405, 68a. Hite V. Commonwealth, 14 Ky. L. R. 308, 15a. Hoard v. State, 83 Tenn. 317, 56i. Hobbs V. State, 86 Ark. 360, 9c. Hodge V. Territory, 12 Okla. 108, 48a, 59bb. Hodge V. State, 85 Ind. 561, 91 f. Hoffman v. State, 97 Wis. 571, 51 j, 52u. Hofheintz v. State, 45 Tex. Cr. R. 117, 60z. Hoge V. People, 117 111. 35, 59e. Holliday v. People, 4 Gil. (111.) 11, 49d, 91d. Hollywood V. State (Wyo.), 120 P. 471, 21q. Holmes v. State (Tex. Cr. App.), 102 S. W. 408, 9011. Holt V. State (Ark.), 121 S. W. 1072, 18c. Hooker v. State, 75 Ark. 67, 57q. Hoover v. State, 48 Neb. 184, 17e, 52f. Hopkins v. State, 83 Md. 502, lOi. V. State, 52 Fla. 39, 73b. Hopt V. Utah, 120 U. S. 430, 80a. Horton v. State (Okla. Cr. App.), 136 P. 177, 53qq. Hotelling v. State, 2 O. C. D. 366, 91r. Houston V. State, 50 Fla. 90, 95e. Howard v. Commonwealth, 24 Ky. L. R. 612, 56c. Hughes V. State, 109 Wis. 397, 14bb. V. State (Tenn.), 148 S. W. 543, 25t, 38e, 52gg. V. State (Tex. Cr. App.), 149 S. W. 173, 51e. Huilade, Ex parte (Cal. App.), 90 P. 1071, 95o. Huizar v. State (Tex. Cr. App.), 63 S. W. 329, 56s. Hunter v. State (Tex. Cr. App.), 129 S. W. 125, 43mmm. V. State, 102 Ind. 428, 49b. Hyde v. Territory, 8 Okla. 69, 5n. V. United States, 35 D. C. 451, 18e, 69g. 406 Table of Cases. (References are to sections and subsections.) I Imboden v. People (Colo.), 90 P. 608, 14ee, 69e, 96g. Jack V. State (Tex. Cr. App.), 117 S. W. 139, 53ff. Jackson v. Commonwealth, 7 Ky. L. R. 227, 59k. V. State (Tex. Cr. App.), 103 S. W. 927, 59uu. Jacobs V. State (Miss.), 60 S. 723, 57ww. James v. State (Ark.), 127 S. W. 733, 52bb. Jamison v. United States (Okla.), 104 S. W. 1044, 57a. Jenkins v. State, 49 Tex. Cr. R. 457, 53w. Johns V. State (Neb.), 129 N. W. 247, 17q, 23f, 56gg. V. State (Tex. Cr. App.), 140 S. W. 1093, 77h. Johnson v. Commonwealth, 102 Va. 927, See. V. State, 59 N. J. L. 525, 14m. V. State, 172 Ala. 424, 491. V. State (Tex. Cr. App.), 127 S. W. 559, 57zz. V. State' (Tex. Cr. App.), 149 S. W. 165, 77j. V. State, 51 Fla. 44, 90c. V. State (Tex. Cr. App.), 150 S. W. 623, 90tt. V. State (Ark.), 133 S. W. 526, 14ff. V. State (Neb.), 130 N. W. 282, 66m. Jones V. United States, 14 Okla. 356, 901. V. State, 14 O. C. C. 363, 5a. V. State (Ala.), 57 S. 31, 51r. V. State (Tex. Cr. App.), 132 S. W. 476, 90ss. V. State (Tex. Cr. App.), 125 S. W. 914, 57ss. V. State, 40 Tex. 188, 82c. V. State, 105 Ga. 649, 89d. Jordan v. State (Tex. Cr. App.), 143 S. W. 623, 12j. V. State, 22 Fla. 528, 41a. V. State, 50 Fla. 94, 82d. Jouderback v. Territory (Okla.), 91 P. 1030. 82b. 407 Table of Cases. (References are to sections and subsections.) Joy V. State, 14 Ind. 139, 44g. V. State, 57 Tex. Cr. R. 93, 77c. Joyce V. State, 56 Tex. Cr. R. 333, 44mm. K Kalan v. United States, 196 Fed. 888, 91r. Keator v. People, 32 Mich. 484, 62b. Keffer v. State, 12 Wyo. 49, 90v. Kennedy v. State, 34 O. S. 310, Sa. Kennison v. State, 83 Neb. 391, 51n. Kent V. State, 42 O. S. 426, 43d. Kinslow V. State, 85 Ark. 514, 5711. Kipper v. State, 45 Tex. Cr. R. 377, 14w, 24a. Kirby v. State (Ala. App.), 59 S. 374, 5611. Kirland v. State, 43 Ind. 146, 88c. Knox V. State (Ala.), 52 S. 526, 2a. Kohn V. State, 14 O. C. C. n. s. 31, 19a. Krause v. United States, 147 Fed. 442, 52h. Kroell V. State, 139 Ala. 1, 17i. Laird v. State (Tex. Cr. App.), 155 S. W. 260, 59vvv. Lake V. Commonwealth, 31 Ky. L. R. 1232, 59xx. Lamar v. State, 65 Miss. 93, 57x. Lambert v. State (Neb.), 136 N. W. 720, 53oo. Langan v. People, 32 Col. 414, 53p, 66k. Lauder v. People, 104 111. 248, 50a. Lawson v. State (Tex. Cr. App.), 148 S. W. 587, 12k. V. State, 87 Miss. 562, 89s. Leaptrot v. State, 51 Fla. 57, 14d. Lee V. State, 73 Ark. 148, 50n. V. Commonwealth, 142 Ky. 742, 57ccc, 57ddd. Leftwich V. State (Tex. Cr. App.), 55 S. W. 571, 43ccc. 408 Table of Cases. (References are to sections and subsections.) Lemons v. State (Tex. Cr. App.), 128 S. W. 416, 13b. Le Mott V. State, 128 Ind. 123, 53o. Leonard v. People, 81 111. 308, 13a. V. State, 56 Tex. Cr. R. 307, 43ww. V. State (Ark.), 150 S. W. 590, 57rrr. V. State (Ariz.), 137 P. 412, 60nn. Leoness v. State, 97 Tenn. 560, 20b. Lesener v. State (Ind.), 95 N. E. 239, 63h. Leverett v. State, 3 Tex. App. 214, 91o. Lewis V. State (Tex. Cr. App.), 126 S. W. 37, 32aa. V. State, 42 Fla. 253, 61a. V. State, 55 Fla. 54, 65a. Lillard v. State, 151 Ind. 322, 96d. Lindsay v. State, 46 Neb. 177, 52f. Link V. State (Tex. Cr. App.), 164 S. W. 987. 56oo. Lipschitz V. People, 25 Col. 261, 13i. Lipsey V. People, 227 111. 364, 57g. Litton V. Commonwealth, 101 Va. 833, 91s. Lockhart v. State, 3 Tex. App. 567, 91o. Lofton V. State (Tex. Cr. App.), 128 S. W. 384, 90t. Long V. State, 48 Tex. Cr. R. 175, 43ff, 53x. V. State, 95 Ind. 481, 91 f. V. State, 1 Tex. App. 710, 94d. Lopez V. State (Tex. Cr. App.), 166 S. W. 154, 89kk. Lowe V. Commonwealth, 33 Ky. L. R. 1078, 3a. Lucas V. State (Ind.), 90 N. E. 305, lOd, lOh, 43i. Mc McArthur v. State, 59 Ark. 431, 73a. McCann v. People, 226 111. 562, 25k. McClary v. State, 75 Ind. 260, 42a. McCline V. State (Tex. Cr. App.), 141 S. W. 977, 8911. McClure v. State, 1 Yergason (Tenn.) 206, 14p. McDonald v. State, 55 Fla. 134, 90d, 90e. 409 Table of Cases. (References are to sections and subsections.) McDonald v. State, 56 Fla. 74, 95f. McDougal V. State (Tex. Cr. App.), 103 S. W. 847, 59ss. McDuffie V. State, 55 Fla. 125, 12b, 51d. McGee v. State, 37 Tex. Cr. R. 688, 56r. McGowen v. State (Tex. Cr. App.), 164 S. W. 999, 57bbbb McGuire v. State, 2 O. C. D. 318, 28c. Mcintosh V. State, 151 Ind. 251, 66g. V. Commonwealth, 23 Ky. L. R. 1222, 90bb. Mclntyre v. People, 38 111. 514, 56a. McKelvey v. State (Tex. Cr. App.), 155 S. W. 932, 44zzz. McLaughlin v. People, 17 111. App. 306, 27b. McMartin v. State (Neb.), 145 N. W. 695, 56pp. McMurray v. State (Tex. Cr. App.), 56 S. W. 76, 14y. McNish V. State, 47 Fla. 66, 51a. McQueary v. People (Col.), 110 P. 210, 34d. McVey v. State, 57 Neb. 471, 72a, 98h. M Madden v. State, 148 Ind. 183, 44g. V. State (Tenn.), 67 S. W. 74, 96f. Madrid v. State (Tex. Cr. App.), 151 S. W. 93, 60pp. Magill V. State, 42 Fla. 197, 98c. Malchown v. State (Ala. App.), 59 S. 342, 66n. Malynak v. State, 61 N. J. L. 562, 39b. Mamson v. State, 24 O. S. 590, 95c. Marks V. State, 101 Ind. 353, 12d. Marlow v. State, 49 Fla. 7, 42b. Marman v. State, 133 Ga. 76, 57mm. Marsden v. State (Ark.), 126 S. W. 1160, 43111. Marshall v. State, 54 Fla. 66, 60b. Martin v. State (Miss.), 147 S. 426, 5y. V. Territory, 18 Okla. 370, 88h. Mash V. People, 220 111. 86, 56k. Mass V. State (Tex. Cr. App.), 128 S. W. 394, 59kkk. 410 Table of Cases. (References are to sections and subsections.) Massie v. Commonwealth, 18 Ky. L. R. 367, 57h. Matthews v. State, 41 Tex. Cr. R. 98, 57ee. May V. State (Ala.), 52 S. 602, 44zz. Mayo V. State, 59 S. 861, 44uuu. Merritt v. State, 40 Tex. Cr. R. 359, 44cc. Middleton v. State, 7 Ga. App. 1, 90qq. Miller v. State (Ind.), 91 N. E. 930, 20c. V. State (Okla. Cr. App.), 130 P. 813, 53p. V. Commonwealth, 117 Ky. 80, 59mm. V. Territory, 15 Okla. 422, 56g. V. State (Wis.), 119 N. W. 850, 70d. V. State (Tex. Cr. App.), 150 S. W. 636, 38d. V. State, 149 Ind. 607, 96e. Milton V. Commonwealth, 17 Ky. L. R. 158, 55b. Minor v. State, 55 Fla. 71, 60a. Mitchell V. State, 7 Okla. Cr. App. 563, 20d. V. Commonwealth, 75 Va. 856, 96c. V. State (Tex. Cr. App.), 100 S. W. 930, 57ii. Mix V. People, 122 111. 641, 13b. Montag V. People, 141 111. 75, 59f. Montague v. Commonwealth, 10 Gratt. (Va.) 767, 14s. Moody V. Uhited States (Okla. Cr. App.), 103 P. 1039, 48c. V. State, 6 Cold. (Tenn.) 299, 49h. V. State, 1 Ga. App. 772, 88j. Moore v. State, 51 Ark. 130, 10b. V. State, 130 Ga. 322, 44hh, 59aaa. V. State, 10 Ga. App. 805, 57mmm. Moran v. State, 11 O. C. C. n. s. 464, 27c, 35a. Morgan v. State, 117 Ind. 569, 87a, 90i. Morman v. State, 110 Ga. 311, 56v. Morris v. State (Tex. Cr. App.), 44 S. W. 510, 43zz. V. State (Ark.), 147 S. W. 74, 57111. V. Territory (Okla. Cr. App.), 99 P. 760, 90dd. Morrison v. State (Neb.), 130 N. W. 293, 44111. Morrow v. State, 15 O. C. C. n. s. 561, 35b, 39a. 411 Table of Cases. (References are to sections and subsections.) Morton v. State, 91 Tenn. 435, 90s. Moxie V. State, 114 Ga. 19, 52q. V. State (Tex. Cr. App.), 114 S. W. 375, 60t. Munyon v. State, 62 N. J. L. 1, 27i. Murphy v. State, 118 Ala. 137, 28a. V. People, 19 111. App. 125, 51e. V. State, 43 Tex. Cr. R. 515, 90u. V. People, 104 111. 528, 98e. Muse V. State, 106 Tenn. 181, 94c. Musser v. State, 157 Ind. 423, 69a. Myers v. State, 92 Ind. 390, 5d. V. State (Tex. Cr. App.), 144 S. W. 1134, 14qq. N Nairn v. State (Tex. Cr. App.), 45. S. W. 703, 14cc. Neaderhouser v. State, 28 Ind. 257, 10a. Neddy v. State, 16 Tenn. 249, 59e. Needham v. People, 98 111. 275, 59b, 91c. Neifeld v. State, 3 O. C. C. n. s. 551, 28b, 95h. New V. State (Ark.), 137 S. W. 564, 43yyy. Newcomb v. State, 49 Tex. Cr. R. 550, 52q, 57ff. Nichols V. Commonwealth, 74 Ky. 575, 12a. Nicholson v. State, 44 Tex. Cr. R. 434, 90hh. Niezorosky v. State, 131 Wis. 166, 46b. Noland v. State (Tex. Cr. App.), 140 S. W. 100, 82h. Norris v. State, 22 Ark. 524, 10a. Northington v. State, 82 Tenn. 424, 57n. O O'Brien v. Commonwealth, 89 Ky. 354, 14j. Ochs V. People, 124 111. 399, 14f. V. People, 25 111. App. 379, 14g, 27c. Ogden V. State (Tex. Cr. App.), 58 S. W. 1018, 17n. 412 Table of Cases. (References are to sections and subsections.) Oldham v. Commonwealth (Ky.), 125 S. W. 242, 57qq. O'Neal V. State (Tex. Cr. App.), 146 S. W. 938, 12j. Ossenkop v. State, 86 Neb. 339, 43jjj, 53kk. Padfield v. People, 146 111. 660, 91e. Painter v. People, 147 111. 444, 20a. Palmer v. People, 138 111. 356, 53e, 57b. Panton v. People, 114 111. 505, 59d. Parkman v. State, 13 Ark. 705, 89a. Parrish v. State, 48 Tex. Cr. App. 347, 53w. Parrish v. State, 14 Neb. 60, 88c. Parshall v. State (Tex. Cr. App.), 138 S. W. 759, 53mm. Parson v. Commonwealth, 33 Ky. L. R. 1051, 44jj. Patrick V. State (Ark.), 149 S. W. 84, 23e. Patterson v. State, 41 Tex. Cr. R. 597, 52o. Payne v. Commonwealth, 31 Gratt. (Va.) 855, 28a. Pearce v. United States, 192 Fed. 561, Moo. Peelee v. State, 161 Ind. 378, 10a. Pendleton v. United States, 216 U. S. 305, 44ww. People V. Amer (Cal.), 90 P. 698, 63a. V. Andre, 156 Mich. 362, 34c. V. Arberg, 13 Cal. App. 749, 5gg. V. Arnold (Cal. App.), 118 P. 739, 46d. V. Ashland (Cal. App.), 128 P. 798, 71d. V. Barthelman, 120 Cal. 7, 87d. V. Barlow, 134 Mich. 394, 13h. V. Baum, 159 111. App. 315, 89ff. V. Beng, 130 Cal. 159, 57u. V. Bishop, 134 Cal. 683, 43ee. V. Bodley, 131 Cal. 240, 52q. V. Boyd (Cal. App.), 116 P. 323, 43gg. V. Bradbury, 155 Cal. 808, 70e. V. Breach, 193 N. Y. 46, 44ii. 413 Table of Cases. (References are to sections and subsections.) People V. Brewster, 27 Mich. 134, 59o. V. Brown, 150 111. App. 365, 76., 14g. V. Brown, 130 Cal. 591, 34b. V. Brown, 53 Mich. 531, 40c. V. Buckley, 145 Cal. 375, 34a. V. Burman, 154 Mich. 150, 5x. V. Burkhart (Mich.), 130 N. W. 597, 56ii. V. Caldwell, 107 Mich. 374, 59q. V. Campbell, 234 111. 391, 59ccc. V. Casselman, 10 Cal. App. 234, 56y. V. Center, 66 Cal. App. 551, 92a. V. Church, 3 N. Y. Cr. R. 57, 5q. V. City, 11 Cal. App. 702, 43xx. V. Considine, 105 Mich. 149, 141. V. Colbath, 141 Mich. 189, 59p. V. Corey (Cal. App.), 97 P. 907, 60s. V. Craig, 48 Mich. 502, 14g. V. Cramley, 23 Cal. App. 340, 56nn. V. Darr, 179 111. App. 130, 66p. V. Davenport (Cal. App.), 120 P. 451, 52ee. V. Davenport (Cal. App.), 110 P. 318, 59ooo. V. Davis (Cal. App.), 88 P. 1101, 43hh. V. De Camp, 146 Mich. 533, 43n. V. Delhantis, 163 Cal. 461, 25v, 43dddd. V. Deluochi (Cal. App.), 118 P. 935, 89ee. V. Dippold, 51 N. Y. 859, 21n. V. Dudley, 131 Mich. 261, 56d. V. Duncan, 261 111. 339, 5211, 53ss. V. Everett, 242 111. 628, 59111. V. Faber, 199 N. Y. 256, 60u. V. Faulkner, 248 111. 158, 56hh. V. Fisher, 120 N. Y. S. 659, 44tt. V. Fitts, 91 P. 636, 60h. V. Flanagan, 174 N. Y. 356, 59ii. V. FroeHch, 96 N. Y. S. 488, 56n. 414 Table of Cases. (References are to sections and subsections.) People Y. Fuller, 238 111. 116, 63b. V. Geyer, 132 App. Div. (N. Y.) 790, 251. V. Goodrode, 132 Mich. 542, 31a. V. Gordon (Cal. App.), 110 P. 469, 59ppp. V. Goslin, 73 N. Y. S. 520, 44aa. V. Grant, 111 Mich. 346, 57j. V. Gray, 251 111. 431, Wee. V. Green, 201 N. Y. 172, 43vvv. V. Gregory, 130 Mich. 522, 23g, 43k. V. Griffith, 146 Cal. 339, 73e. V. Hackett, 175 N. Y. 504, 89u. V. Harrison (Cal. App.), 120 P. 200, 14pp. V. Harrison (Cal. App.), 112 P. 733, 77f, 5311. V. Hatch, 163 Cal. 368, 30a. V. Higgins (Cal. App.), 98 P. 683, 57g. V. Hilliard, 119 Mich. 24, 44p. V. Hoffman, 142 Mich. 531, 43m. V. Hoke, 136 N. Y. S. 235, 44xxx. V. Horton (Cal. App.), 93 P. 382, 67c. V. Hower (Cal.), 91 P. 507, 60h. V. Hubert, 119 Cal. 216, 89o. V. Hutchings, 137 Mich. 527, 44r. V. Johnson (Cal. App.), 110 P. 965, 44eee. V. Johnson, 131 Cal. 511, 52k. V. Jones, 24 Mich. 215, 43j. V. Jones (Cal. App.), 90 P. 561, 66j. V. Joyce, 154 111. App. 13, 7b. V. Katz, 209 N. Y. 311, 43iiii. V. Kna:;i., 26 Mich. 112, lOe. V. Koharshi (Mich.), 142 N. W. 1097, 52jj. V. Kohlsach, 66 111. App. 505, 98d. V. Kosta (Cal. App.), 112 P. 907, 77g. V. Kriessel, 136 Mich. 80, 51g. V. Lambert, 144 Mich. 578, 25a. V. Lee Dick Lung, 129 Cal. 491, 21c. 415 Table of Cases. (References are to sections and subsections.) People V. Lee Fook, 141 Cal. 548, 59S. V. Long, 44 Mich. 296, 3Sb. V. Loomer (Cal. App.), 110 P. 466, 13e. V. Lopez (Cal. App.), 131 P. 104, 43gggg. V. Lueders, 126 Mich. 440, 57j. V. Luis (Cal), 110 P. 580, 57g. V. Lumsden, 125 N. Y. S- 1079, 48a, 63 f. V. McArron, 121 Mich. 1, 32a. V. McCann, 247 111. 130, 5ff, 43qqq, 52dd. V. McClure, 148 Cal. 418, 62c. V. McCue (Cal.), 88 P. 899, 92b. ,v. McGregor (Mich.), 144 N. W. 869, 14ss. V. McRoberts, 1 Cal. App. 25, 57v. V. Mar Gin Suie (Cal. App.), 103 P. 951, 44kk. V. Martinez (Cal. App.), 128 P. 952, 89ee. V. Mead, 50 Mich. 228, 25b, 54d. V. Meadows, 121 N. Y. S. 17, 25o. V. Mehuyama, 19 Cal. App. 290, 43ffff. V. Mendoza (Cal. App.), 118 P. 964, 17t. V. Messer, 148 Mich. 168, 57k. V. Miller, 135 Cal. 69, 36f. V. Miller, 169 N. Y. 339, 89t. V. Moncuso, 23 Cal. App. 146, 57ww\v. V. Morine, 138 Cal. 626, 40d. V. Morse, 196 N. Y. 306, 24d. V. Myers, 113 Cal. 618, 56j. V. Oppenheimer, 156 Cal. 733, 21m, 36i, 93f. V. Overacker, 15 Cal. App. 620, 51q. V. Padilla, 143 Cal. 158, 59gg. V. Palmer, 105 Mich. 568, 43o. V. Patterson, 124 Cal. 102, 52o, 57t. V. Peck, 147 Mich. 84, 21b, 52d. V. Perry, 144 Cal. 748, 85b, 89d. V. Phelan, 123 Cal. 551, 52r. V. Piner, 11 Cal. App. 542, 81c. 416 Table of Cases. (References are to sections and subsections.) People V. Pisano, 127 N. Y. S. 204, 51p. V. Planchino (Cal. App.), 91 P. 112, 13d, 19c. V. Poindexter, 243 111. 68, 59mmm. V. Prantikos (Cal), 127 P. 1029, 43eeee. V. Prather, 134 Cal. 436, 28c. V. Prince, 128 N. Y. S. 273, 25r. V. Purnell, 106 Mich. 27, 12a. V. Quinn, 127 Cal. 542, 5s. V. Reilly, 53 Mich. 260, 44o. V. Resh, 107 Mich. 251, 17d. V. Rich, 133 Mich. 14, 27f, 44q. V. Ricker, 142 111. 650, 10a. V. Ringstead, 90 Mich. 317, 57a. V. Robinson, 86 Mich. 415, 59s. V. Rudorf, 149 111. App. 215, 56ff. V. Ruef (Cal. App.), 114 P. 54, 60ee. V. Ryder, 151 Mich. 187, 4311, 44gg. V. Scot, 261 111. 165, 57vvv. V. Sharp (Mich.), 127 N. W. 758, 57ggg. V. Silva (Cal. App.), 128 P. 348, 55e. V. Smith, 98 N. Y. S. 905, 28c. V. Smith, 105 Mich. 431, 57j. V. Smith, 147 111. App. 146, 57vv. V. Solani, 6 Cal. App. 103, 10k. V. Steele, 7 111. App. 20, 50c. V. Stein, 25 Cal. App. 108, 91x. V. Stewart (Mich.), 127 N. W. 816, 57hhh. V. Stillwell, 142 N. Y. S. 628, 57sss. V. Streuber, 121 Cal. 431, 89p. V. Strollo, 190 N. Y. 42, 39e. V. Swaile, 12 Cal. App. 192, S2z. V. Thompson (Mich.), 126 N. W. 466, 80a. V. Thompson, 198 N. Y. 396, 82g. V. Tibbett (Mich.), 139 N. W. 868, 53p. V. Tollefson, 145 Mich. 444, 21a. 417 Errors — 27. Table of Cases. (References are to sections and subsections.) People V. Tomlinson, 66 Cal. 344, 88b. V. Tubbs, 147 Mich. 1, 27g. V. Van Alstyne, 157 Mich. 366, 58a. V. Vaughn (Cal.), Ill P. 620, 44fff, 71b. V. Walker, 154 111. App. 3, 7b. V. Wardrip, 141 Cal. 229, 90x. V. Warfield, 172 111. App. 1, 66o, 69h. V. Wells, 112 Mich. 648, 59r. V. Wheeler, 142 Mich. 212, 431. V. Whiteman, 114 Cal. 38, 21e. V. Whitlow (Cal. App.), 139 P. 826, 60oo. V. Williams, 240 111. 633, 24c. V. Wong Loung (Cal.), 114 P. 879, 44ppp. V. Yew Foo (Cal. App.), 89 P. 450, 57hh. V. Young, 151 N. Y. 210, 171. V. Zajicek, 233 111. 198, 60q. V. Zimmerman (Cal. App.), 104 P. 590, 44n. Perdue v. State (Ga.), 69 S. E. 184, 44ggg. Perovitch v. United States, 205 U. S. 86, 45a. Perry v. State (Tex. Cr. App.), 133 S. W. 685, 12a. Petersen v. State, 6 Ga. App. 491, 90oo. Phillips V. State, 9 Ga. App. 857, 60gg. Piarrow v. State, 47 Neb. 294, 90q. Pike V. State, 40 Tex. Cr. R. 613, 59nnn. Pilgrim v. State (Tex. Cr. App.), 128 S. W. 128, 56ee. Pitman v. Commonwealth, 2 Robinson (Va.), 800, 6a. Pleasant v. State, 15 Ark. 624, 89a. Plunkett V. State, 72 Ark. 409, 50o. Poe V. State (Ark.), 129 S. W. 292, 57uu. Pollard V. State (Tex. Cr. App.), 125 S. W. 390, 43ggg. Poor V. State, 142 111. 309, 10c. Porter v. Commonwealth, 145 Ky. 548, 57iii. Porterfield v. Commonwealth, 91 Va. 801, 88i. Preuitt V. People, 5 Neb. 377, 50k. Probst V. State (Tex. Cr. App.), 133 S. W. 263, 53w. 418 Table of Cases. (References are to sections and subsections.) Pullen V. State (Tex. Cr. App.), 156 S. W. 935, 53w. Pumphrey v. State, 84 Neb. 636, 16a. Q Queenan v. Territory, 11 Okla. 261, 14g. Quartermous v. State (Ark.), 127 S. W. 951, 85c. R Rally V. State (Tex. Cr. App.), 129 S. W. 120, 12a. Railroad Co. v. United States, 212 U. S. 481, Saa. V. State, 63 Ark. 134, 50i-n. V. Commonwealth (Ky.), 129 S. W. 94, 5dd. V. Commonwealth, 112 Ky. 635, 57f. V. Satterwhite, 119 Tenn. 499, 73b. Rains v. State, 152 Ind. 69, 66e. Randall v. State, 131 Ind. 539, 62a. Rasor v. State (Tex. Cr. App.), 121 S. W. 512, 14ff. Ray V. State, 108 Tenn. 282, 14o, 57m. Rayfield v. State (Ga. App.), 72 S. E. 515, 90ss. Rays V. State, 45 Tex. Cr. R. 463, 17j. Reagan v. State (Tex. Cr. App.), 100 S. W. 776, 25j. Reddingfield v. State (Ga. App.), 79 S. E. 581, 90zz. Redman v. Commonwealth, 82 Ky. 333, 53h. Reed v. State, 66 Neb. 184, 52o. V. State (Okla. Cr. App.), 103 P. 1042, 57a. V. State, 147 Ind. 41, 95k. Reese v. State, 76 Ark. 39, 57r. Reeseman v. State (Tex. Cr. App.), 128 S. W. 1126, 44xx. Regan v. State, 87 Miss. 422, 13c. Reighard v. State, 22 O. C. C. 340, 53c. Reinhold v. State, 130 Ind. 467, 56a. Renfroe v. State, 84 Ark. 16, 21j. Rentfrow v. State, 123 Ga. 539, 28c. 419 Table of Cases. (References are to sections and subsections.) Renzie v. People (Col.), 138 P. 1009, 71e. Reum V. State, 49 Tex. Cr. R. 125, 14z. Reves v. State (Tex. Cr. App.), 117 S. W. 152, 53w. Reyes v. State, 49 Fla. 17, 57a. Reynolds v. State (Tex. Cr. App.), 124 S. W. 931, 60aa. V. State, 53 Neb. 761, 90r. Rhodes v. Commonwealth, 10 Ky. L. R. 722, 17b. Rice V. People (Cal.), 90 P. 1031, 59qq. Richards v. State, 42 Fla. 528, 98b. Richards v. United States, 175 Fed. 911, 17g. Ridens v. State, 41 Texas 199, 90b. Rieger v. United States, 107 Fed. 916, 89m. Rigsby V. State (Ala.), 44 S. 608, 5w. Ripley v. State, 7 -Ga. App. 679, 90rr. Ritzmany v. People, 110 111. 362, 44c. Robbins v. State, 47 Tex. Cr. R. 312, 44bb. Robertson v. State, 72 Tenn. 425, 49j. Robinson v. State, 33 Ark. 180, 43a. Robinson-Williams v. State, 24 Fla. 358, 43b. V. Commonwealth, 104 Va. 888, 57p. Rodgers v. State, 21 S. 130, 79t. Rodriquez v. Territory (Ariz.), 125 P. 878, 56mm. Rogers v. State (Ala.), 52 S. 33, 14hh. V. State, 60 Ark. 76, 82a, 89b. Roquemue v. State (Tex. Cr. App.), 129 S. W. 1120, 12a. Ross V. State (Tex. Cr. App.), 132 S. W. 793, 44jjj. Rowan v. State (Ark.), 129 S. W. 80, 14ff. Ruth V. State, 140 Wis. 373, 43vv. Salig V. Commonwealth, 154 Ky. 738, 6011. Salt Lake City v. Robinson (Utah), 125 P. 657, 89jj. Sample v. State, 104 Ind. 289, 59i. St. Louis V. State, 8 Neb. 405, 44u. 420 Table of Cases. (References are to sections and subsections.) Sandaloski v. State (Tex. Cr. App.), 143 S. W. 151, 43aaaa. Sanderson v. State, 169 Ind. 301, 27b, 48a. Sapp V. State (Fla.), 52 S. 2, 59jjj. Saxton V. Commonwealth, 6 Ky. L. R. 440, 12a. Schere v. State (Okla. Cr. App.), Ill P. 962, 63g. Schindel v. State (Ind.), 93 N. E. 67, 57bbb. Schroeder v. People, 196 111. 211, 52s. Schultz V. State, 133 Wis. 215, 26g. Seele v. State, 85 Neb. 109, 32a, 59iii. Sellers v. State (Ark.), 124 S. W. 770, 57a. Shields V. State, 149 Ind. 395, 36d, 90h, 74a. Shilling V. State (Tex. Cr. App.), 51 S. W. 240, 43ccc. Shomwebber v. State (Tex. Cr. App.), 156 S. W. 222, 90xx. Shuster v. State, 62 N. J. L. 521, 5i. Siebert v. People, 143 111. 571, 14h, 27b. Simons v. People, 150 111. 66, 44d. V. State (Tex. Cr. App.), 120 S. W. 208, 57g. Simpson v. State, 48 Tex. Cr. R. 328, 52p. Singleton v. State, 39 Fla. 520, 25f. Smartt v. State, 112 Tenn. 539, 43dd. Smead v. State (Tex. Cr. App.), 49 S. W. 597, 43bbb. Smith V. State, 15 O. C. C. n. s. 223, 95d. V. Commonwealth, 19 Ky. L. R. 1073, 12a. V. Commonwealth, 13 Ky. L. R. 612, 14k, 97c. V. People, 142 111. 117, 59g. V. State, 48 Tex. Cr. App. 233, 69d. V. State (Tex. Cr. App.), 101 S. W. 363, 21k. Smits V. State, 145 Wis. 601, 43www. Smyth V. State (Tex. Cr. App.), 103 S. W. 899, 59tt. Sparks V. State (Tex. Cr. App.), 142 S. W. 1183, 43zzz. Spencer v. State (Wis.), 112 N. W. 462, 44dd, 59vv. Stafford v. Commonwealth, 13 Ky. L. R. 665, 13b. Standard Oil Co. v. United States, 221 U. S. 1, 37b. Stanfield v. State, 50 Tex. Cr. R. 69, 71a. Stanley v. State (Ga. App.), 70 S. E. 894, 62h. 421 Table of Cases. (References are to sections and subsections.) Starke v. State, 49 Fla. 41, 14e, 88d. Starr v. State, 160 Ind. 661, 76a. State V. Adams, 85 Kan. 435, 60ff. V. Albans (Me.), 83 A. 548, 43cccc. V. Allen, 23 Ida. 772, 44yyy. V. Albertson (N. D.), 128 N. W. 1122, 43sss. V. Anderson (Iowa), 135 N. W. 405, 5jj. V. Aspara, 113 La. 950, 14t. V. Babcock, 51 Vt. 570, 31c. V. Baker (Iowa), 125 N. W. 659, 2b. V. Baker (Mo.), 152 S. W. 46, 57aa. V. Bailly (S. D.), 137 N. W. 352, 21w. V. Baldwin, 214 Mo. 290, 21h, 92c. V. Barrett, 43 Mont. 502, 20d. V. Barrett (N. C), 65 S. E. 894, 251. V. Bartolomew, 69 N. J. L. 160, 5i. V. Baughman, 111 Iowa 71, 53aa. V. Baum, 64 N. J. L. 410, 98o. V. Bickle, S3 W. Va. 597, 501. V. Block (N. J. Err. & App.), 59 A. 1118, 44v. V. Bobbitt, 228 Mo. 252, 25c, 26b. V. Bobbitt (Mo.), 146 S. W. 799, 44ttt. V. Bobbitt (Mo. App.), 128 S. W. 953, 69f. V. Bonham, 18 Ind. 231, 5c. V. Boone (Wash.), 118 P. 46, 57jjj. V. Bowerman, 140 Mo. App. 410, 90n. V. Boyce, 24 Wash. 514, 56u. V. Boyd, 178 Mo. 2, 57y. V. Brooks, 92 Mo. 542, 25i. V. Brown (Utah), 102 P. 641, 211. V. Buchler, 132 La. 1065, 7b. V. Buckman, 74 Vt. 300, 37a. V. Buford (Iowa), 139 N. W. 464, 22c. V. Bulling, 105 Mo. 204, 59f. V. Bundy, 71 Kan. 779, 53dd. 422 Table of Cases. (References are to sections and subsections.) State V. Bunyard, 253 Mo. 347, 621. V. Burk, 234 Mo. 574, 60e. V. Burk, 151 Mo. App. 188, 93c. V. Burpes, 65 Vt. 1, 42b. V. Bussey, 58 Kan. 679, 5m. V. Butterfield (S. D.), 119 N. W. 548, 59fff. V. Byrd, 41 Mont. 585, 14jj, 43ppp, 43rrr, 44iii, 98j. V. Cain, 20 W. Va. 679, 23b. V. Campbell, 134 La. 828, 57zzz. V. Cannon, 232 Mo. 705, 5m. V. Carpenter, 56 Wash. 670, 17p. V. Clark, 64 W. Va. 625, 43z. V. Clark, 51 W. Va. 157, 53z. V. Clark (Iowa), 122 N. W. 957, 63d. V. Coleman, 186 Mo. 151, 20c. V. Corcoran, 7 Ida. 220, 53y. V. Corwin (Iowa), 131 N. W. 659, lOn. V. Craig, 78 Iowa 637, 33a. V. Craine, 120 N. C. 605, 57gg. V. Crosby, 88 S. C. 98, 59qqq. V. Crouch, 150 Iowa 478, 53t. V. Dalton, 69 Miss. 611, 14r. V. David, 131 Mo. 380, 14dd. V. Davies (S. D.), 145 N. W. 719, 12a. V. Davis, 203 Mo. 616, 59rr. V. Depoister, 21 Nev. 168, 49e. V. Dickerson, 77 O. S. 34, 50a. V. Dirkey (S. D.), 118 N. W. 10, 42g. V. Donovan, 75 Vt. 308, 44x. V. Douette, 31 Wash. 6, 90ii. V. Douglass, 28 W. Va. 297, 64b. V. Dower, 134 Mo. App. 352, 89f. V. Driggers, 84 S. C. 526, 56cc. V. Dudley (Iowa), 126 N. W. 812, 53jj. V. Duestrow, 137 Mo. 44, 22b. 423 Table of Cases. (References are to sections and subsections.) State V. Dunford, 91 Kan. 898, 53rr. V. Dunn, 179 Mo. 95, 39d. V. Easley, 118 La. 690, 59pp. V. Egland (S. D.), 121 N. W. 298, 84a. V. Elliott (Wash.), 124 P. 212, lOo. V. Engle, 21 N. J. L. 347, 27h. V. Evan, 85 Kan. 435, 60ff. V. Famham (Mont.), 89 P. 728, 601. V. Farris, 81 Conn. 9^7, 56qq. V. Finley, 245 Mo. 465, 21t. V. Fitzgerald, 72 Vt. 142, 42b. V. Fleetwood, 143 Mo. App. 698, 59v, 87h. V. Fletcher, 50 Wash. 303, 5z. V. Fletcher (La.), 53 S. 877, 44kkk. V. Fogg, 206 Mo. 696, 89bb. V. Foss, 206 Mo. 696, 17o. V. Foster, 136 Mo. 653, 17k. V. Foster (Iowa), 114 N. W. 36, 53d. V. Fray, 126 Iowa 249, 14s. V. Frazier (S. D.), 121 N. W. 790, 44nn. V. Gebbia, 121 La. 1083, 31e. V. Gibson, 67 W. Va. 548, 43aa. V. Gibson, 83 S. C. 34, 44dd. V. Gohl (Wash.), 90 P. 259, 87f. V. Golden, 113 la. 791, 53bb, 561. V. Gordon (Mont), 90 P. 173, 90kk. V. Grear, 29 Minn. 221, 59u. V. Greenland, 125 Iowa 141, 521. V. Groom, 10 Iowa 308, 27e. V. Gruffmuller, 26 Minn. 5, 50h. V. Qustlette (Me.), 77 A. 544, 44hhh. V. Gut, 13 Mich. 341, 59t. V. Guthrie, 145 N. C. 492, 19b. V. Guy (S. D.), 125 N. W. 570, 21o. V. Hadden, 49 S. C. 308, 64f. 424 Table of Cases, (References are to sections and subsections.) State V. Halida, 23 W. Va. 499, 53n. V. Hall, 141 Wis. 30, See. V. Hall, 45 Mont. 498, 21r. V. Halliday, 111 La. 47, 57w. V. Hamilton, 124 La. 132, 57o. V. Hammer, 7Z N. J. L. 328, 56f. V. Hanlon, 62 Vt. 334, 90t. V. Hartman, 182 Mo. 461, 59t. V. Hatfield, 66 N. J. L. 443, 7b. V. Hayden, 131 Iowa 1, 52o. V. Hayward (Iowa), 133 N. W. 667, 52ee. V. Heath (Mo.), 141 S. W. 26, 40a, 89h, 89gg. V. Henderson, 186 Mo. 473, 90x. V. Hendricks, 15 Mont. 198, 81b. V. Herron (N. J. L.), 71 A. 274, 56f. V. Hess, 239 Mo. 335, 52ff. V. Hobbs, 62 Kan. 612, 56j. V. Holburn (S. D.), 121 N. W. 100, 36g. V. Holter (S. D.), 138 N. W. 953, 63i. V. Hooker, 145 N. C. 581, 5w. V. Hooper (N. C), 65 S. E. 613, 44oo. V. Horlacher, 16 Wash. 325, 73e. V. Horner, 139 N. C. 605, 57gg. V. Hummer, 73 N. J. L. 328, 59aa. V. Jackson, 9 Mont. 508, 59m. V. Jackson, 87 S. C. 407, 71c. V. Jacques (R. I.), 76 A. 652, 51o. V. Jenkins (Iowa), 126 N. W. 689, 57ww. V. Johnny, 29 Nev. 203, 49f. V. Johns (Iowa), 118 N. W. 295, 47a. V. Johnson, 72 Iowa 395, 44m. V. Jones (Mo.), 155 S. W. 33, 57fff. V. Jones, 32 Mont. 442, 70c. V. Justus, 11 Ore. 178, 4a. V. Kartgard, 62 Minn. 7, 83b. 425 Table of Cases. (References are to sections and subsections.) State V. Keating, 223 Mo. 86, 5k. V. Keehn, 85 Kan. 765, 46e. V. King, 88 Minn. 175, 36e. V. King (La.), 64 S. 1007, 62k. v: Kinkley, 81 Kan. 838, 57pp. V. Knight, 106 Minn. 371, 43oo. V. Knowles, 185 Mo. 141, 21d. V. Kouhns, 103 Iowa 720, 90aa. V. Kritchman (Conn.), 79 A. 75, 76d. V. Krugg (Iowa), 113 N. W. 822, 89aa. V. Kruman (Iowa), 127 N. W. 985, 53ii. V. Kysilka, 84 N. J. L. 6, 53cc. V. Lance, 149 N. C. 551, 51m. V. Lavin (W. Va.), 60 S. E. 888, 11a. V. Lavin, 64 W. Va. 26, 59d. V. Lawlor, 28 Minn. 216, 14f. V. Lawson, 14 Ark. 114, 95a. V. Lee, 228 Mo. 480, 43s. V. Lee, 58 S. C. 355, 56q. V. Lem Woon (Ore.), 107 P. 974, 52cc. V. LePitre, 54 Wash. 166, 43rr. V. Letice (Wash.), 112 P. 748, 88k. V. Long (N. J.), 66 A. 942, 5j. V. Long, 20 Tenn. 386, 5o. V. McCarthy, 17 Minn. 96, 29a, 59k. V. McDaniel, 39 Ore. 161, 56p. V. McGinnis, 12 Ida. 336, 28c. V. McKinnon (Iowa), 138 N. W. 523, 40f. V. McQueen, 69 N. J. L. 522, 951. V. Maher, 54 Iowa 82, 91h. V. Major, 134 La. 774, 57yyy. V. Mallahan (Wash.), 118 P. 898, 57kkk. V. Mangana (Nev.), 112 P 693, 43uuu. V. Marsh, 70 Vt. 288, 28c. V. Martel (Nev.), 108 P. 1097, 63e. 426 Table of Cases. (References are to sections and subsections.) State V. Marten, 59 Kan. 338, 44m. V. Martin, 29 Mont. 273, S9oo. V. Martin (N. J. L.), 69 Atl. 1091, 59hhh. V. Martin, 230 Mo. 680, 21w. V. Marulla, 43 Wash. 273, 18a. V. Matthews, 119 La. 665, 57g. V. Matto (Iowa), 98 N. W. 600, 91t. V. Mayers, 36 Ore. 38, 56o. V. Middleton, 69 S. C. 72, 18a. V. Milam, 88 S. C. 127, 65c. V. Miller, 71 N. J. L. 527, 43w. V. Miller (Wash.), 138 P. 896, 43kkkk. V. Millican, 158 N. C. 617, 90uu. V. Mills, 79 S. C. 187, 24b. V. Minot, 70 Minn. 118, 43q. V. Mitchell (Mo.), 140 S. W. 887, 9a. V. Mitchell (Mo.), 129 S. W. 917, 43iii. V. Moffatt, 20 Mont. 373, 70a, 82d. V. Moffitt (Iowa), 136 N. W. 908, 93h. V. Mooney, 49 W. Va. 712, 52q. V. Moore, 52 La. Ann. 605, 28c. V. Moran, 43 N. J. L. 49, 49g. V. Morse, 35 Ore. 462, 52q. V. Moss, 216 Mo. 436, 90o. V. Mount, 72 N. J. L. 365, 96b. V. Munhinney (Utah), 134 P. 632, 63j. V. Murgrave, 43 W. Va. 672, 27d. V. Murphy, 128 Wis. 201, lOj. V. Neitzel (Iowa), 136 N. W. 532, 59uuu. V. Nelson, 91 Minn. 143, 52q. V. Nerzinger, 220 Mo. 36, 66h, 89g. V. Niehaus, 217 Mo. 332, 43r, 44s. V. Oakes, 202 Mo. 86, 90jj. V. O'Brien, 228 Mo. 404, 93b. V. O'Callhan (Iowa), 138 N. W. 402, 44vvv. 427 Table of Cases. (References are to sections and subsections.) State V. Olsen, 88 Kan. 136, 44www, 57ppp. V. Osborne (Ore.), 103 Pa. 62, 31e. V. Osnes, 14 Mont. 555, 60j. V. Paice (S. D.), 123 N. W. 708, 25p. V. Parkins (Iowa), 120 N. W. 62, 96i. V. Pastor, 111 La. 717, 89r. V. Payne, 223 Mo. 112, 51, 60y. V. Penna (Mont.), 90 P. 787, 60m. V. Perry (Iowa), 145 N. W. 56, 57xxx. V. Pollard, 155 Mo. App. 319, 52e. V. Porter, 32 Ore. 165, S9jj. V. Poyner (Wash.), 107 P. 181, 32a. V. Prater, 52 W. Va. 132, 17h. V. Pratt (S. D.), 112 N. W. 152, 15b. V. Priest, 215 Mo. 1, 64a. V. Pugh, 16 Mont. 345, 44t. V. Pugh, 75 Kan. 792, 59ww. V. Quick, 150 N. C. 820, 79a. V. Rabens, 79 S. C. 542, 62e. V. Railroad Company, 149 N. C. 508, 7c. V. Ray, 104 Tenn. 33, 80a. V. Reed (Ore.), 97 P. 627, 511. V. Reilly, 4 Mo. App. 392, 50i. V. Riley (Utah), 126 P. 294, 53p. V. Rice, 7 Ida. 769, 52q. V. Riddle, 179 Mo. 287, 56m. V. Robinson, 52 La. Ann. 541, 52o. V. Robinson, 236 Mo. 712, 60f. V. Roby, 83 Vt. 121, 44w. V. Rodgers, 40 Mont. 248, 44rr. V. Rogers (Iowa), 137 N. W. 819, 71w. V. Roller, 30 Wash. 692, 43jj. V. Romeo (Utah), 128 P. 530, 60jj. V. Ross (Ore.), 104 P. 596, 43qq. V. Rowe, 81 Iowa 138, 23d. 428 Table of Cases. (References are to sections and subsections.) State V. Russe, 127 Iowa 318, S2t. V. Sarenson (Iowa), 138 N. W. 411, 62f. V. Satcher, 124 La. 1015, 82f. V. Schaefer, 74 Iowa 704, 53g. V. Schneck, 85 Kan. 334, 39f. V. Sechrist, 226 Mo. 574, 5m. V. Shaffer, 253 Mo. 320, 62k. V. Sharp, 233 Mo. 269, 51h. V. Sharp (Mo.), 135 S. W. 488, 56jj. V. Shea (Wash.), 139 P. 203, 431111. V. Sherman, 106 Iowa 684, 89q. V. Shippey, 10 Minn. 223, 59t. V. Shores, 31 W. Va. 491, 43y. V. Shuford, 152 N. C. 809, 43kkk. V. Simon, 71 N. J. L. 142, 27d. V. Simpson, 32 Nev. 138, 43 v. V. Sloah (Iowa), 128 N. W. 842, 43ooo. V. Smails (Wash.), 115 P. 82, 43xxx. V. Smith, 78 Minn. 362, 43p. V. Soper, 207 Mo. 502, 59nn. V. Springfield, 86 S. C. 318, 44bbb. V. Staley, 14 Minn. 105, 22a. V. Steidley, 135 Iowa 512, 26c. V. Stevenson, 26 Mont. 332, 67b. V. Stock, 95 Mo. App. 65, 90cc. V. Stratford, 149 N. C. 483, 76c. V. Stucky, 56 S. C. 576, 89v. V. Surry, 23 Wash. 655, 56t. V. Swartz, 87 Kan. 852, 14rr. V. Taylor, 134 Mo. 109, 36j, 38b. V. Terrill (Mo.), 152 S. W. 33, 21w. V. Tettaton, 159 Mo. 354, 14x. V. Thornhill, 174 Mo. 364, 72c. V. Tracey (Mont.), 90 P. 791, 60m. V. Trimbell, 12 Wash. 440, 14g. 429 Table of Cases. (References are to sections and subsections.) State V. Valentine, 71 N. J. L. 552, 56f, 60f. V. Vanilla, 40 Mont. 326, 36h. V. Veillon, 29 S. 883, 53u. V. Vickers, 209 Mo. 12, 62d. V. Vollenweider, 94 Mo. App. 158, 86c. V. Waters, 144 Mo. 341, 94e. V. Weisman (Mo.), 141 S. W. 1108, 43t. V. Wells, 1 N. J. L. 424, 911. V. West (S. D.), 124 N. W. 751, 44uu. V. Whalen, 234 Mo. 539, 60d. V. Wheeler, 35 Vt. 261, 83c. V. Whitbeck (Iowa), 123 N. W. 982, 43yy, 75a. V. Whitney, 7 Ore. 386, 4a. V. Wilkins, 221 Mo. 444, 90p. V. Williams, 10 O. C. C. n. s. 530, 95b. V. Williams (Nev.), 102 P. 974, 18d, 31b, 56e. V. Williams (Kan.), 94 P. 160, 44ff. V. Williams, 11 S. D. 64, 52q. V. Winbauer (N. D.), 128 N. W. 679, 21p. V. Winner, 17 Kan. 298, 23b. V. Winney (N. D.), 128 N. W. 680, 78b. V. Winter, 83 S. C. 153, 37c. V. Winters, 81 Kan. 414, 82d. V. Woodward, 182 Mo. 391, 46a. V. Young, 114 La. 686, 52q. V. Young (Iowa), 138 N. W. 871, 62g. V. -Young, Judge, 30 Fla. 85, 98a. V. Zempel, 103 Minn. 428, 59yy. Stehr V. State, 92 Neb. 755, 66a. Stephenson v. State, 110 Ind. 358, 14i. Stevens v. State, 84 Neb. 759, 43pp. Stevens v. State (Tex. Cr. App.), 150 S. W. 944, 90ww. Stewart v. United States, 211 Fed. 41, 57uuu. Stoddard v. State (Wis.), 112 N. W. 453. Stone V. People, 3 Scam. (111.) 126, 5b, 430 Table of Cases. (References are to sections and subsections.) Stone V. State (Tex. Cr. App.), 123 S. W. 582, 89dd. V. State, 57 Fla. 28, 12c, 91b. Storm V. Territory, 170 Fed. 423, lOh. V. Territory (Ariz.), 94 P. 1099, 87e. Stout V. State, 90 Ind. 1, 50g. Straub v. State, 5 O. C. C. n. s. 529, 30b, 57aa. Strickland v. State (Ga.), 72 S. E. 922, 39g. Stripling v. State, 47 Tex. Cr. R. 117, 91c. Strobher v. State, 55 Fla. 167, 89d. Strong V. People, i24 Mich. 1, 28a. Strutton V. Commonwealth, 23 Ky. L. R. 307, 52c. Stucker v. State, 171 Ind. 441, 5e. Sturdivant v. State, 59 Ark. 267, 44a. Sturgeon v. Gray, 96 Ind. 166, 8a. Sue V. State (Tex. Cr. App.), 105 S. W. 804, 43mm. Sutheriin v. State, 148 Ind. 695, 66f. Sutton V. People, 145 111. 279, 44e. Swartz V. State (Okla. Cr. App.), 120 P. 1029, 21g. Sweet V. State, 75 Neb. 263, 90dd. Sweetman, Ex parte (Cal. App.), 90 P. 1069, 95o. Sylvester v. State, 46 Fla. 166, 14b. Tardy v. State, 46 Tex. Cr. R. 214, 57bb. Tatum V. State (Ala.), 47 S. 339, 59bbb. Taylor v. State, 130 Ind. 66, 48b. V. State, 73 Ark. 158, 53q. V. Commonwealth, 23 Ky. L. R. 1466, 59m. V. State, 49 Ind. 555, 91g. V. State, 5 Tex. App. 569, 91p. Tedford v. United States (Okla.), 104 S. W. 608, 43x. Telfair v. State, 58 Fla. 110, 65bb. Territory v. Ayers (N. M.), 113 P. 604, 65d. V. Clayton, 8 Mont. 8, 43u. 431 Table of Cases. (References are to sections and subsections.) Territory v. Emilio (N. M.), 89 P. 239, 14e. V. Harris, 8 Mont. 140, 59x. V. Leslie (N. M.), 106 P. 378, 93g. V. Manton, 8 Mont. 103, 13b. Terry v. State, 118 Ala. 79, 28a. Thacker v. State (Okla. Cr. App.), 106 P. 986, 14gg, 57a. Thomas v. State (Ala.), 43 S. 371, 51k. V. State, 60 S. 781, 89ii. Thompson v. State, 45 Tex. Cr. R. 599, 12h. V. People, 26 Col. 496, 86b. V. State (Tex. Cr. App.), 134 S. W. 350, 44ooo. V. State, 1 Tex. App. 56, 91o. Thornton v. Commonwealth, 65 Va. 657, 91q. Thorp V. State (Tex. Cr. App.), 129 S. W. 607, 77^. Tilly V. State, 21 Fla. 242, 27d. Tilmeyer v. State (Tex. Cr. App.), 136 S. W. 1060, 59rrr. Tingue v. State, 90 O. S. 368, 93d. Tinsley v. State (Tex. Cr. App.), 106 S. W. 547, 27k, 43ff. Titus V. State, 49 N. J. L. 36, 53k, 531. Toomer v. State, 112 Md. 285, 57xx. Townley v. State (Tex. Cr. App.), 81 S. 309, 25e. Travers v. State, 90 Tenn. 499, 73b. Truax v. Commonwealth, 149 Ky. 699, 52hh, 57qqq. Tubbs V. United States, 105 Fed. 59, 44g. Tully V. Commonwealth, 74 Ky. 154, 5t. Turner v. Territory, 15 Okla. 557, 14n. V. State, 89 Tenn. 549, 28a. V. Commonwealth, 25 Ky. L. R. 981, 53h. U Underhauer v. State, 4 O. C. C. 378, 26a. United States v. Guilford, 146 Fed. 298, 5aa. V. Railroad Company, 146 Fed. 298, 5aa. V. Standard Oil Co., 173 Fed. 177, 37b. 432 Table of Cases. (References are to sections and subsections.) V Vails V. State (Tex. Cr. App.), 128 S. W. 1117, 77d. Valdez v. State (Tex. Cr. App.), 160 S. W. 341, 57ttt. Van Immons v. State, 29 O. C. C. R. 681, 59zz. Vasser v. State, 75 Ark. 373, 53ee. Vaughn v. State, 58 Ark. 353, 27b. Vogel V. State, 138 Wis. 315, 14u. Voght V. State, 145 Ind. 12, 66d. Vowells V. Commonwealth, 83 Ky. 183, 91j. W Wachter v. People (Colo.), 124 P. 183, 57mmm. Wadley v. Commonwealth, 98 Va. 803, 59dd. Wait V. Commonwealth, 113 Ky. 821, 69b. Wagner v. State, 116 Ind. 181, 44k. Walker v. Commonwealth, 7 Ky. L. R. 46, 98g. Wallace v. State, 41 Kla. 547, 25g, 29a. Waller v. United States, 179 Fed. 810, lOg. Walton V. State, 41 Tex. Cr. R. 454, 5j. Ward V. Commonwealth, 29 Ky. L. R. 62, 59hh. Ware v. State, 108 Tenn. 466, 59kk. Warner v. State, 139 Ga. 613, 90yy. Washington v. State (Tex. Cr. App.), 125 S. W. 917, 43hhh. V. State, 56 Tex. Cr. R. 195, 56aa. Watkins v. United States, 1 Ind. Ter. 364, 57a. Watson V. State (Tex. Cr. App.), 105 S. W. 509, 38f. V. State, 48 Tex. Cr. R. 323, 53h. Watts V. State, 99 Md. 30, 42a. Weatherford v. State (Tex. Cr. App.), 102 S. W. 1146, 60n. Weaver v. State, 142 Ala. 33, 27e. Webb V. State, 7 Ga. App. 36, 44qq. Webster v. State, 47 Fla. 108, 90f. Wells V. State (Miss.), 51 S. 209, 25h. 433 Errors— 28. Table of Cases. (References are to sections and subsections.) Wells V. Territory, 14 Okla. 436, 40b, 52g, 52q. V. Territory, 98 P. 483, 93e. Wesoky v. United States, 175 Fed. 333, 33b. White V. State, 17 Ind. App. 95, 57e, 59h. Whitehead v. Commonwealth, 19 Gratt. (Va.) 640, 9b. Whitlock V. State, 4 Ind. App. 432, 43g. V. Commonwealth, 89 Va. 337, 59cc. V. State (Tex. Cr. App.), 125 S. W. 917, 43hhh. Whittle V. State (Tex. Cr. App.), 95 S. W. 1084, 89y. Wickham v. People, 47 Tenn. 525, 59bb. Wilhelm v. People, 72 111. 468, 53d. Wilkerson v. State (Tex. Cr. App.), 57 S. W. 966, 91c. Wilkins V. State, 68 Ark. 441, 64c. Williams v. State, 169 Ind. 384, lOd. V. State, 56 Tex. Cr. R. 596, 43uu. V. State, 42 Fla. 205, 49a. V. Commonwealth, 140 Ky. 34, 91v. V. State (Miss.), 49 S. 513, 90pp. V. State, 59 Tenn. 376, 90j. V. Commonwealth, 82 Ky. 640, 51d. V. Commonwealth, 13 Ky. L. R. 753, 91k. V. State, 4 Okla. Cr. App. 523, 52v. V. State (Tex. Cr. App.), 148 S. W. 763, 57nnn. V. State (Tex. Cr. App.), 57 S. W. 650, 60x. V. State, 66 Ark. 264, 81a. Williamson v. United States, 207 U. S. 425, 26c, 43bb, 89cc. Willingham v. State, 21 Fla. 761, 88c, 91a. Wilson V. State (Ala.), 54 S. 572, nnn. V. People, 94 111. 299, 50a. V. State, 109 Tenn. 167, 65d. V. Commonwealth, 22 Ky. L. R. 1251, 901. V. Barkalow, 11 O. S. 470, 20c. V. State, 47 Fla. 118, 36b. Wiltscher v. State (Miss.), 54 S. 726, 26f. Windham v. State (Tex. Cr. App.), 150 S. W. 613, 89hh. 434 Table of Cases. (References are to sections and subsections.) Winfrey v. State (Tex. Cr. App.), 57 S. W. 810, 52n. Winters v. United States, 201 Fed. 845, 60kk. Wohlford V. People, 45 111. App. 188, 44f, 53e. Wood V. State, 130 Ind. 364, 10a. Woodford v. Commonwealth, 154 Ky. 818, 82i. Woods V. State (Ga.), 72 S. E. 908, 43bbbb. V. United States, 174 Fed. 651, 91r. Woodward v. United States, 38 App. D. C. 323, 21s. Wotha V. State, 14 O. C. C. n. s. 145, 81a. Yancy v. State, 48 Tex. Cr. R. 166, 52v, 57cc. Yarbrough v. Commonwealth, 89 Ky. 151, 53i. Young V. State (Tex. Cr. App.), 102 S. W. 1144, 12i. Younger v. State (Neb.), 114 N. W. 170, 90mm. Yowell V. State, 72 Ark. 158, 53aa. Zachary v. State, 57 Tex. Cr. R. 199, 44vv. Zargna v. State (Tex. Cr. App.), 68 S. W. 997, 14v. Zinn V. People, 111 111. 49, 17a, 59e. 435 INDEX. Figures indicate sections, letters subsections. A. ACCOMPLICE, Refusal to permit accused's counsel to ask the accomplice, testifying for the state, if he expected to be prosecuted, 44tt. Instruction, on a trial for seduction, that prosecutrix was an accomplice, JJ^. Instruction, submitting to the jury, whether a witness is an accomplice, 77d. In a prosecution for lewdness, instruction that deals with the subject as though accomplice was an adult, 'j'ji. Where accused was prosecuted as a principal, instruction defining accomplice, ^^%. Refusal to charge that it is unsafe to convict on the uncor- roborated testimony of an accomplice, 79e. Refusing instruction that the testimony of an accomplice requires corroboration, 89k. Refusing to instruct that prosecuting witness consenting to the commission of sodomy made him an accomplice, pip. ACCOMPLICES, Excluding from evidence photographs of defendant and his supposed accomplices, 44III. Instructions upon accomplice and accessories, "jj. Instruction that certain of state's witnesses were accom- plices of accused, 77c. ACCUSED, Testimony by, 25. Permitting state to recall accused to lay foundation to im- peach her, 38e. 437 index. (Figures indicate sections, letters subsections.) Accused — Continued. Question to expert as to sanity of accused, 39b. Admitting evidence of expert in relation to insanity of ac- cused, 39g. Unanswered improper question to accused, 42a. Admitting statements of wife of accused, 43k. Admitting testimony of wounded person as to acts of ac- cused, 43r. Physician permitted to testify as to wounds of accused, 43W. Admission of proof of making false claim to afifect reputa- tion of accused for veracity, 43CC. Prosecuting attorney asking question to show the moral depravity of accused, 43hh. Admitting evidence that accused stated he was leaving home to keep from killing somebody or being killed, 43tt. In a prosecution for illegally selling liquor, admitting tes- timony of amount of money accused stated he made therefrom, 43UU. Evidence that accused falsified report of another bank, 43VV. Admission of evidence of similarity of hair found in de- ceased's hand with that on accused's head, 43yy. Admission of evidence of wounds inflicted by accused on one who threatened his life, 43eee. Where accused admitted striking decedent when down, admission of accused's brother's directions, "Now give it to him," 43Jjj. Admission in evidence of cartridge box found in house of accused, 43VVV. Permitting witness to testify that accused pleaded guilty to gaming, 43ZZZ. Admitting evidence that wagons carried groceries to house where accused and a woman lived together, 43hhhh. Denied the right to testify to his intent, 44f. 438 Index. (Figures indicate sections, letters subsections.) Accused — Continued. Refused permission to make unsworn statement to the jury, 44-0. Excluding testimony of animosity between accused and witness, 44s. Excluding testimony in support of reputation of accused for truth and veracity, 44dd. Excluding evidence of why accused did not visit the Chinese quarters on day following the homicide, 44kk. Refusal to allow cross-examination as to quarrel with ac- cused prior to the commission of the crime, 44nn. Exclusion of letter written by decedent to daughter of ac- cused, 44pp. Failure of accused to testify in his own behalf, 44WW. In homicide case, exclusion of evidence to show apprehen- sion by accused of violence from deceased, 44bbb. Refusal to permit accused to testify to entire conversa- tion in rebuttal, 44CCC. Exclusion of testimony, whether witness observed anything peculiar and unnatural with reference to accused, 44fff. Exclusion of testimony that accused was quiet at the time when his conduct was a proper matter of inquiry, 44ggg- Refusing permission to accused to cross-examine his own witness, 44ppp. Excluding testimony of accused that deceased "could have cut me if I had waited any longer to shoot him," 44ituu. Statement by accused constituting part of the res gestae, 47b. Proceeding with the trial in the absence of accused, 5op. Court expressing opinion as to guilt of accused, 51I. Court ordering accused into custody and refusing bail, Sim. Prosecuting attorney repeating question to accused on cross-examination, 52n. 439 inaex. (Figures indicate sections, letters subsections.) Accused — Continued. Prosecuting attorney inferentially commenting on failure of accused to testify, 52W. Counsel for state asking accused how long it had been since he was sentenced for a felony, 52X. Epithets used by prosecuting attorney toward accused, 52ff. State's attorney requesting warrant for the arrest of one of accused's witnesses in the presence of the jury, 52II. Discharging jury when accused was in jail, 531. Statement by juror in jury room that he knew accused to be a thief, 53-00. Where jury, in considering punishment, discussed that ac- cused was a professional man, 53pp. Witness divulging that accused admitted his guilt to him, 54b. Remark by bystander to juror that accused ought to hang, 55b. Remark by court implying confession by accused, 56e. Remark by court that membership of accused might be a reflection on the church, 56ee. Remark by court that testimony objected to by accused is material and counsel should not be so quick to take ex- ceptions, 56ii. Remarks by court complimentary to prosecuting attorney and criticising attorney for accused, 56JJ. Remark, in admitting statement of accused, that whether act was voluntary or involuntary, was a question for the jury, 56II. Remark of counsel calling attention to other iregularities of accused, 57b. Comment or allusion by prosecuting attorney to accused's failure to testify, 57g. In a prosecution for liquor violation, argument of county attorney that accused made sale and was in the busi- ness, 57jj. 440 Index. (Figures indicate sections, letters subsections.) Accused — Continued. Statement by district attorney that handcuffs the sheriff had were not larger than what accused had in his pocket, 57kk. Comment of state's counsel on excluded testimony that accused had kept a house of ill fame and a gambling house, S7nn. Inaccurate statement by state's attorney that proof showed accused tried to cut prosecutor's throat, 57-00. In murder trial, statement by prosecuting attorney that accused "shot that man deliberately and with malice," S7PP- In a prosecution for cutting, prosecuting attorney saying in argument that prosecuting witness knew accused was not honest, etc., 57qq. Statement by district attorney that a certain person as- sisted accused to commit the robbery, 57rr. In. the prosecution of negro for carrying a pistol, argument of county attorney not to turn accused loose for certain white men, 57SS. Prosecuting attorney calling accused a horse thief, S7fff. Special prosecutor saying that accused was guilty of em bezzlement not charged in the indictment, S7Jjj. Where accused wished to take his sick mother's testimony at her house, remark by prosecuting attorney, "I hate to call counsel for grandstanding before the jury," etc., 57kkk. State's attorney calling accused a "vile character" and a "whoremonger," S7rrr. In a prosecution of a state senator for bribery, statement of district attorney that he wished he could tell the jury the advice the governor gave accused, 57sss. Statement of district attorney that accused's codefendant had been convicted of the same offense and sentenced to death, 57UUU. 441 Index. (Figures indicate sections, letters subsections.) Accused — Continued. Prosecuting attorney stating that accused had served a term of imprisonment, 57WWW. In a trial for keeping a disorderly house remark of prose- cuting attorney directing attention to accused's dia- monds, every glitter of which represented a lost soul, 57CCCC. Instruction informing jury that accused stood mute, 59!. Instruction favorable to the accused, 59U. Instruction requiring the jury to find that accused voted in a name other than his own, 6od. Instruction to find against accused solely on the evidence affecting him, 6of. Instruction that if jury find the alleged decedent is not dead, accused should be acquitted, 6ov. Instructions relating to the accused, 62. Charge as to weight to be given to testimony of accused, 62a. In a prosecution for murder, charge relating to the shoot- ing of Z at the time it was alleged accused shot de- ceased, 62c. Where accused fled, instruction to consider flight as a cir- cumstance indicative of guilt, if he knew it was an officer from whom he ran, 62f. Instruction requiring accused's withdrawal from combat to be clearly signified to restore his right of self-defense, 62g. Instruction that hearsay statements by accused had no probative value, and should not be considered, 62h. In a prosecution for forgery, that if accused "actually" believed he had authority to sign a check in the name he signed thereto, the jury should acquit, 62i. Instruction in a prosecution for robbery, that if accused retook the money under an honest belief it was his, the jury should acquit, 62J. Instruction that the jury could consider the interest of ac- cused in determining his credibility as a witness, 62k. 442 Index. (Figures indicate sections, letters subsections.) Accused — Continued. Instruction authorizing conviction if accused assaulted prosecutor with a knife, with intent to kill, maim or disfigure him, 62I. In a prosecution for transporting liquor, instruction that burden was on accused to show that liquor conveyed by him was a lawful purchase, 6^g. In a trial for bigamy, instruction that accused had the bur- den of showing a divorce from his former wife, 63h. Instruction assuming the good character of the accused, 64a. Instruction assuming the guilt of the accused, 64g. Instruction to acquit if there is any doubt of the guilt of the accused, 66i. Instruction more favorable to the accused than to the pros- ecution, 66m. Instructions upon possession by accused of the stolen prop- erty, 6^. Instruction making a general reference by an accused to the possession of the stolen property, 67b. Confused instructions favorable to accused, 7oe. Instruction that a motive proven against one accused is a "strong" circumstance pointing to guilt, 76c. Where accused was prosecuted as a principal, instruction defining accomplice, yyg. Instruction that accused's previous good character neither justifies nor "mitigates" the offense, 81 e. Instruction defining degrees of homicide where accused indicted for murder, was convicted of manslaughter, 82a. Where accused pleaded former acquittal and jeopardy and court charged that pleas were not sustained, 87e. Refusal to charge regarding family of accused, Sgh. Refusal to charge that the mere presence of accused with- out participation would not make him a principal, Sgy. Refusal to instruct that counsel for the state should not apply degrading epithets to accused, 89II. 443 Index. (Figures indicate sections, letters subsections.) Accused — Continued. Failure to give instructions on admissions or statements by- accused, 90JJ. Omission to charge that the state must disprove accused's statements to secure a conviction, gonn. Failure to instruct that accused was not guilty of assault with intent to murder, unless actuated by malice and in- tent to kill, 90ZZ. The rights of accused are not presumed to be prejudiced by formal defects in a verdict, 9IV. Failure to require a finding that accused was not married to the girl, 92c. Complaint charging accused with a misdemeanor not made a part of the record, 94f. Failure to ask accused if he has anything to say why judg- ment should not be pronounced against him, gSd. Alleged incompetency of counsel assigned to defend ac- cused, 98e. Denial of rights to accused guaranteed by the Sixth Amendment of the Constitution of the United States, 98i. ADULTERY, Ruling that evidence tending to show accused guilty of must be confined to facts within four days of the homicide, 43CCCC. On a trial for adultery admitting evidence that wagons carried groceries to the house where it was claimed ac- cused and a woman lived together, 43hhhh. Prosecuting attorney, in a robbery case, trying to show that defendant was living in adultery, 52s. AFFIDAVIT OF PREJUDICE, Defendant's attorney fined for contempt for presenting, 52y. ALIBI, Instructions upon the defense of, 72. Instructions describing an alibi as part of the defense, 72a. 444 Index. (Figures indicate sections, letters subsections.) Alibi — Continued. Instructions assuming, on defendant's plea of alibi, that house in question was burglarized, 72b. Instruction giving advantage of alibi, not claimed, to de- fendant, 72c. Instruction in homicide case commingling alibi with a charge on manslaughter, 72d. Conflict produced by the testimony of two witnesses tend- ing to establish an alibi, 98c. AMENDMENT, Allowance of to an indictment, 5y. ARGUMENT OF COUNSEL, Limitation to thirty minutes to each side, 5 id. Permitting prosecuting attorney to exceed his time two minutes, 5it. Limiting time for argument, 58. Court limiting argument to specified time, 58a. ARRAIGN, Failure to arraign for murder in the second de- gree, 9a. ARRAIGNMENT, 9. Joint arraignment with a codefendant, 9b. Trial without arraignment and plea, 9c. ARREST, 2. Before the issuance of a warrant, 2a. ARSON, Admitting evidence in prosecution for arson that defendant's clothes smelt of kerosene, 43ee. Admitting evidence of contents of building burned, 43JJJJ- In a prosecution for attempted arson, statement by state's attorney that buildings had been burned, and it was his duty to act, 57xx. 445 Index. (Figures indicate sections, letters subsections.) Arson — Continued. Instruction, in prosecution for arson, that if house burned was inclosed and a roof on it, it might be regarded as a building, 59ZZ. lASSUMPTIONS IN INSTRUCTIONS, 64. Good character of accused, 64a. That blow killed the accused, 64b. That certain written testimony of a witness was a true copy of that given on the examining trial, 64c. That defendant assaulted prosecuting witness, 64d. Of conceded facts, 64e. That girl under the age of fourteen years can not give con- sent, 64f. Of the guilt of the accused, 64g. In a prosecution for perjury, that defendant made the al- leged false statement, 64h. On defendant's plea of alibi, that house in question was burglarized, 72b. ATHEIST, One of the jurors an atheist, I4p. ATTACHMENT, Blank left in writ of attachment, 49g. B. BAIL, Remanding accused to sheriff though he had given bail, 2b. BAILIFF, Presence of bailiff in jury room during delibera- tions, 53f. Accidentally taking the jury on the ground where the shooting occurred, S3ee. 446 Index. (Figures indicate sections, letters subsections.) BANK, Admitting in evidence minute book of national bank, 2ii. Evidence that accused falsified report of another bank, 43VV. BASTARDY, Failure in bastary case to read the transcript to the jury, 53b. BENEFICIAL ORDER, See Secret Society. BIBLE, Exclusion of family Bible for insufficiency of proof, 44bb. BILL OF PARTICULARS, 7. Of charge of larceny and embezzlement, 7a. Failure to grant on an indictment for embezzlement, 7b. Acceptance by court of an insufficient bill of particulars, 7c. Denial of motion for a bill of particulars, 7d. BIRTH, Date of in family Bible, 2ig. Admitting baptismal register to prove age, 2ij. Evidence by Catholic priest of record of birth of children of parish, 2iw. BLOODHOUNDS, Where bloodhounds were employed, charge that jury must find that dogs were certain and reliable in following human footsteps, etc., 6off. BOND, Admission of liquor dealer's bond, 21k. BRIBERY, On a trial of a police inspector for bribery per- mitting witness to state the purpose for which money was wanted, 43qqq. On a trial for bribery refusal to permit witness to be asked whether he had detectives following defendant just before the trial, 44nnn. 447 Index. (Figures indicate sections, letters subsections.) Bribery — Continued. Attorney general publishing charge of the creation of a fund to bribe jurors, S2gg. In a prosecution of a state senator for bribery, statement of district attorney that he wished he could tell the jury the advice the governor gave accused, 57sss. BURDEN of proof on accused that he did not have a pistol, 25U. Instruction in a prosecution for libel placing the burden on defendant to prove justification by a preponderance of the evidence, 63b. Charge that burden was on defendant to prove insanity by a preponderance of the evidence, 71a. BURGLARY, Admitting evidence that three weeks later home of witness was again entered, 43kkkk. Exclusion of question whether defendant was in the base- ment of the building burglarized at any time, and with whom, 44VVVV. Unauthorized separation of the jury in a prosecution for burglary, 53Z. Instruction on larceny and conviction of burglary, 59J. Instruction that breaking and entering a store in the day- time was included in the charge of a breaking in the night-time, 59uuu. Failure to charge that defendant's connection with the bur- glary must be shown, 90-00. On a trial for burglary failure to charge on explanation for possession of recently stolen property, 90SS. Instruction submitting question of breaking, without spe- cific reference either to a daytime or night-time bur- glary, 90XX. 448 Index. (Figures indicate sections, letters subsections.) BYSTANDERS, Alleged misconduct of, 55. Bystanders conversing with juror while in charge of sher- iff, 55a. Remark of bystander to a juror that accused ought to hang, 55b. Writing on window-glass "hang him, hang him," readable by jury, S5c. Applause by spectators when county attorney finished his address to the jury, 55d. Declaration of bystander to the court during the trial, 556. CAPIAS AD RESPONDENDUM, 6. Overruling motion to quash capias, 6a. CAPITAL CONVICTION unaffected by nonprejudicial er- ror, 5od. CHALLENGES, Allowing defendant to exercise unauthor- ized peremptory challenges, I4r. Ruling restricting the number of defendant's peremptory challenges, 14-00. Ruling requiring counsel to exercise peremptory challenges while only eight jurors in the box, 14pp. Allowing county attorney to challenge three jurors at one time, I4rr. CHIEF OF POLICE, Admission of statement made to by accused, 25W. CHINESE, Exclusion of testimony to show Chinese person wrongfully in the United States was mentally deficient, 44Z. Excluding evidence of why accused did not visit the Chi- nese quarters on day following the homicide, 44kk. 449 Errors— 29. Index. (Figures indicate sections, letters subsections.) COMPETENCY, Objections to competency of witness eight years old, 17J. COMPLAINT, Sustaining demurrer to the complaint, 5c. Error in writing "thirtee" for "thirteen" in a complaint, 5g. COMPROMISE, Refusal to permit testimony of a proposal of compromise, 44q. CONCLUSIONS, 30. CONCLUSION, Cured by afterwards stating facts on which based, 30a. When testimony not objectionable as stating a mere con- clusion, 30b. Excluding question calling for a conclusion, 44ZZ. CONFESSIONS, 18. CONFESSION, When procured by duress jury should be in- structed to disregard confession, i8a. After confession received, preceding alleged errors not in- quired into, 1 8b. Admitting an involuntary confession, i8c. Cured error in question to witness, i8d. Introduced before sufficient proof of the corpus delicti, i8e. Where witness testified confession was freely made refusal of preliminary examination of second by accused's coun- sel, 44ii. Court conducting examination as to the admissibility of confession in the absence of the jury, 51-0. Instructions relating to confession, 68. Submission to jury of question of the voluntary character of the confession, 68a. Charge enjoining care in considering a verbal confession, 68b. 450 Index. (Figures indicate sections, letters subsections.) Confession — Continued. The refusal of court to charge that confession that de- fendant killed deceased will not convict unless the corpus delicti is otherwise established, 89X. Refusal to charge that the confession of accused must be disregarded if not voluntarily made, 8gkk. CONSPIRACIES, Instruction upon conspiracies and con- spirators, 69. CONSPIRACY, Evidence of conspiracy, 26. Proof of conspiracy admissible after declarations of co- conspirators, 26a. Admission of threats made before formation of conspiracy, 26b. Admission of evidence of acts in other cases, 26c. Admission of acts of alleged coconspirator before con- spiracy had been shown, 26e. Prima facie proof of conspiracy to admit act or declaration of one conspirator against another, 26g. In a prosecution for conspiracy, discussion by state's at- torney of the insolvency of defendant, 57vv. Charge that the conspiracy may be shown by circumstan- tial evidence, 69a. Instruction that conspiracy might be inferred from the facts and circumstances, 69b. On a trial for conspiracy charge that all alike are guilty as principals, 69c. Charge in prosecution for homicide that if one parent en- tered into the conspiracy both did, 69d. Charge that a common design and unlawful purpose by two or more persons are the essence of conspiracy, 69e. Charge directing the jury not to consider declarations made before the formation of the conspiracy, 69f. Instruction in a prosecution for conspiracy against four persons that a verdict may be against one only, 69g. 451 Index. (Figures indicate sections, letters subsections.) CONSPIRATOR, Evidence relating to deceased's wife, a co- conspirator, 26f. Instruction that one may be criminally liable as a con- spirator without having a pecuniary benefit in the mat- ter, 6^h. CONSPIRATORS, Proof necessary to admit acts or declara- tions of coconspirators, 23a. Premature admission of declaration of alleged coconspira- tors, 23b. Admission of acts and declarations of alleged coconspira- tors, 23d. Refusal to strike out testimony of one of the conspirators, 26d. CONTEMPT OF COURT, Defendant's attorney fined for contempt of court for presenting affidavit of prejudice, 52y. CONTINUANCES, Motions for, 12. CONTINUANCE, Refusal to grant a continuance, 12a. When court authorized to refuse a continuance, 12b. When abuse of discretion not shown by denying a contin- uance, I2C. Refusal of continuance for witness afterward examined, I2d. Denial of continuance to work a reversal must be clearly improper, I2e. Denial of continuance to prove an alibi, I2f. Denial of continuance to show threats by decedent, I2g. Denial of continuance for illness of counsel, I2h. Refusal to grant continuance where defense was insanity, I2i. Denial of continuance for absence of witnesses to prove reputation, I2j. 452 Index. (Figures indicate sections, letters subsections.) Continuance — Continued. Denial of continuance because accused was tried at same term for another crime, 12k. Denial of continuance for illness of accused, 12I. CONVERSATION, Admission of before proof of corpus de- licti, 19b. Admission of, 35. Where incompetent, preliminary question as to whether there was a conversation, 35a. Between accused and third persons, 35b. Excluding question as to exact words of a conversation, 44p. Refusal to permit accused to testify to entire conversation in rebuttal, 44CCC. On the case between prosecuting attorney and trial judge, 51b. CORPORATION, Admission of unauthenticated articles of incorporation, 21 1. Error cured by ofifering to introduce mintues of corpora- tion, 43ii. Exclusion of testimony that certain corporations were not financially sound, 44aa. CORPUS DELICTI, 19. Confession introduced before sufficient proof of corpus delicti, i8e. Failure to establish before incriminating evidence received, 19a. Admission of conversation with defendant before proof of corpus delicti, 19b, 19c. Refusal to charge that confession that defendant killed de- ceased will not convict unless the corpus delicti is other- wise established, 89X. 453 Index. (Figures indicate sections, letters subsections.) COUNSEL, Alleged misconduct of, 52. Prosecuting attorney assuming a fact not proven, 52a. Prosecuting attorney relating conversation concerning the prevalence of crime in Kentucky, 52b. Prosecuting attorney threatening to impeach accused if he testified on his own behalf, 52c. Impassioned argument by prosecuting attorney, 52d. Prosecuting attorney in his argument quoting testimony of witness, 52e. Prosecuting attorney conversing with jurors, 52f. To reverse must influence the verdict, 52g. Prosecuting attorney securing admission of incompetent testimony, 52h. District attorney reading from newspaper that slayer was an ex-convict, S2i. District attorney attempting to show by another that a previous witness had mentioned a certain fact, 52J. On a trial for rape, district attorney reading testimony on preliminary examination before the magistrate, 52k. Prosecuting attorney asking questions calling for incompe- tent answers, 52I. Suggestion by prosecuting attorney that deceased was robbed by a cousin of accused, 52m. Prosecuting attorney repeating questions to accused on cross-examination, 52n. Prosecuting attorney asking improper questions, 52-0. Prosecuting attorney asking prosecuting witness to remove his coat and exhibit his wound to the jury, 52p. Alleged improper conduct of prosecuting attorney, 52q. Prosecuting attorney attempting to discredit a witness, S2r. In a prosecution for robbery, prosecuting attorney trying . to show that defendant was living in adultery, 52s. In a prosecution for murder, prosecuting attorney telling jury where a juror on panel that acquitted an accused helped to lynch him, 52t. 454 Index. (Figures indicate sections, letters subsections.) Counsel — Continued. Prosecuting attorney reading part of record of former trial showing dismissal of others jointly indicted with de- fendant, 52U. Prosecuting attorney misstating the evidence, S2v. Prosecuting attorney inferentially commenting on defend- ant's failure to testify, 52W. Counsel for state asking accused how long it had been since he was sentenced for a felony, 52X. Defendant's attorney fined for contempt for presenting af- fidavit of prejudice, 52y. In a prosecution for misuse of dynamite, prosecuting at- torney using the words, "one of his dynamiting plots," 52Z. County attorney asking defendant if, in habeas corpus pro- ceedings, he had not been refused bail and remanded to jail, S2aa. State's attorney remarking, "What is A? They established a Monte Carlo out there," etc., 52bb. Question by state's attorney, "Isn't it a fact that this was a place where you kept weapons to kill people?" 52CC. State's attorney stating that he had a telegram that ac- cused's witness had been convicted of embezzlement, 52dd. State's attorney incorrectly stating that the evidence showed accused's picture in the rogues' gallery, 52ee. Epithets used by prosecuting attorney toward accused, 52ff. Attorney general publishing charge of the creation of a fund to bribe jurors, S2gg. Prosecuting attorney repeating improper questions, 52hh. Prosecuting attorney treating five jurors and two of de- fendant's counsel to lemonade, 52ii. Failure of prosecuting attorney to make an opening state- ment to the jury, S2Jj. 455 Index. (Figures indicate sections, letters subsections.) CouNSEi, — Continued. Prosecuting attorney reading to jury the indictment alleg- ing defendant's two prior convictions, 52kk. State's attorney requesting warrant for the arrest of one of accused's witnesses for perjury in the presence of the jury, 52II. Remarks of, 57. Improper remarks of prosecuting attorney to the jury, 57a. Remarks calling attention to other irregularities of ac- cused, 57b. Admission in testimony of improper remark of prosecuting attorney, 57c. Prosecuting attorney branding defendant as a reputed hotel thief, 57d. Prosecuting attorney stating that counsel for defendant and latter's employer were related, 576. Commonwealth's attorney stating that defendant denied everything as in other cases, 57f. Comment or allusion by prosecuting attorney to accused's failure to testify, 57g. Prosecuting attorney, in murder trial, indicating motive for the act, 57h. Prosecuting attorney referring to convictions in other cases of homicide, 571. Improper statement of prosecuting attorney cured by court's rebuke, 57J. Prosecuting attorney stating that witness would be corro- borated by one who was absent, 57k. Application by counsel to witness of terms, "Smart Aleck," and to documents, as prepared by a "shyster" or "black- leg," 571. Remark by attorney general that defendant was "no gera- nium," 57m. Remark by attorney general that the people would not sub- mit to an acquittal, S7n. 456 Index. (Figures indicate sections, letters subsections.) CouNSEi, — Continued. Excoriation of prisoner by prosecuting attorney, 57-0. Remark of prosecuting attorney incorrectly stating the law, 57P- Remark by state's counsel that bad feeling among some of the colored people supplied a motive for the killing, 57q. Prosecuting attorney's remark against any man who would run a "blind tiger," 57r. Statement by prosecuting attorney that case on trial was unparalleled for cruelty, 57s. Remark by prosecuting attorney deriding accused's counsel, "Why, this child talks to you as if you were idiots," 57t. In an action for rape, where defendant sought to prove unchastity, district attorney stated he could not do it, 57U. Remark by district attorney that it would have been a good thing for the community had defendant been lynched, 57V. Remark by prosecuting attorney that witness should have been permitted to testify in French, S7w. Counsel for state telling jury that on former trial jury were not out more than a minute to find a verdict of- guilty, 57X. Remark by prosecuting attorney that defendant's name was written in the walls of the penitentiary, 57y. Remark of county attorney that he was willing the jury should be charged on aggravated assault, 572. On a trial for robbery, prosecuting attorney stating to the jury that he believed the defendant to be guilty, 57aa. Prosecuting attorney telling jury that if they acquitted it would cause more murders, S7bb. In a murder case, prosecuting attorney pointing to the widow and children of the victim, "This is the mob de- fendant feared," 57cc. Remark of prosecuting attorney that he knew two truthful boys who were witnesses for the state, 57dd. 457 Index. (Figures indicate sections, letters subsections.) CouNSEi^ — Continued. Remark of prosecuting attcJrney that it was strange de- fendant brought no one to impeach a certain witness for the state, S/ee. Prosecuting attorney stating to jury that a witness had married the daughter of D, 57ff. Prosecuting attorney describing offense as "the most tragic crime ever perpetrated in this county," etc., 57gg. In a homicide case, remark of district attorney that the society of "Highbinders" was an "alibi factory," 57hh. Remarks by district attorney to witness to prove the good character of decedent, 57ii. In a prosecution for liquor violation, argument of county attorney that accused made sale and was in the business, S7JJ- Statement by district attorney that handcuffs the sheriff used were not larger than what accused had in his pocket, 57kk. Remarks by prosecuting attorney, "Think, gentlemen of the jury; think if it were you, and your wife made a widow," etc., 57II. Irrelevancy of speech, or reference to extraneous matters, in argument of counsel, 57mm. Comment of state's counsel on excluded testimony that ac- cused had kept a house of ill fame and a gambling house, S7nn. Inaccurate statement by state's attorney that proof showed accused tried to cut prosecutor's throat, 57-00. In a murder trial, statement by prosecuting attorney that accused "shot that man deliberately and with malice," 57PP- In a prosecution for cutting, prosecuting attorney saying in argument that prosecuting witness knew accused was not honest, etc., 57qq. 458 Index. (Figures indicate sections, letters subsections.) Counsel — Continued. Statement by district attorney that a certain person as- sisted accused to commit the robbery, SJrr. In the prosecution of a negro for carrying a pistol, argu- ment of county attorney not to turn accused loose for certain white men, 57SS. Statement by prosecuting attorney that he had seen de- fendants convicted on weaker testimony, etc., S7tt. Statement by prosecuting attorney that prosecutrix had been corroborated by the testimony of two witnesses, 57UU. In a prosecution for conspiracy, discussion by state's at- torney of the insolvency of defendant, 57VV. Argument of the prosecution for the infliction of the death penalty, for life imprisonment presented the possibility of pardon or parole, 57ww. In a prosecution for attempted arson, statement by state's attorney that buildings had been burned and it was his duty to act, 57xx. In a trial for rape, remark by district attorney, "You have there that wretched wretch," 57yy. In the prosecution of a negro for carrying concealed weap- ons, remark of counsel, that negroes, as a race, are about all alike, are unreliable, etc., 57zz. Remark by district attorney, "If you people want to shroud this in darkness, and refuse to turn on the light, I can't help it," 57aaa. Statement by prosecuting attorney that case might have been entitled "State against Brewing Company, by ac- cused," 57bbb. Where both accused and prosecutor were in the liquor business, statement by prosecuting attorney that they were morally on a parity, 57ccc. Prosecuting attorney likening accused to a wild beast in quesjt of prey, 57ddd. 459 Index. (Figures indicate sections, letters subsections.) Counsel — Continued. In a prosecution for uxoricide, argument of counsel that the jury did not know but that wife had accused de- fendant of undue intimacy with some other woman, 57eee. Prosecuting attorney calling accused a horse thief, 57fff. Impassioned argument by prosecuting attorney, S7ggg. Remark by prosecuting attorney, "It is common knowl- edge that people burn buildings for the insurance," 57hhh. Statement by commonwealth's attorney that plea of insan- ity had been manufactured by accused's counsel, 57iii. Special prosecutor saying that accused was guilty of em- bezzlement not charged in the information, 57Jjj. Where accused wished to take his sick mother's testimony at her home, remark by prosecuting attorney, "I hate to call counsel for grandstanding before the jury," etc., 57kkk. Argument of state's attorney that men sent to the peniten- tiary seldom serve their sentences, 57mmm. Remark of state's counsel that one of the witnesses was an extraordinary man, S7nnn. Counsel referring disparagingly to defendant's conduct to- wards his wife and children, 57-000. Argument of prosecuting attorney assuming that defendant admitted the killing, 57ppp. Prosecuting attorney relating how a band of mountain men shot a judge, attorney, jurors, stenographer, etc., 57qqq. State's attorney calling accused a "vile character" and a "whoremonger," S7rrr. In a prosecution of a state senator for bribery, statement of district attorney that he wished he could tell the jury the advice the governor gave accused, 57sss. Remark of district attorney that there should be speedy trials and prompt convictions, or mob law would result, 57ttt. 460 Index. (Figures indicate sections, letters subsections.) Counsel, — Continued. Statement of district attorney that accused's codefendant had been convicted of the same offense and sentenced to death, 57UUU. Prosecuting attorney making statement in order to make the testimony of a witness clearer, 57vvv. Prosecuting attorney stating that accused had served a term of imprisonment, 57WWW. Argument of county attorney, "Think of awaking in the night and finding a man like that in your room, with a gun like that," 57xxx. Statement of district attorney that defendants were gen- erally known in their community as desperate men, 57yyy. In the examination of jurors, remark of district attorney that defendant had no case, 57zzz. Remark of state's counsel that defendant "made that state- ment and the defense had the opportunity to deny it, and it stands uncontradicted," 57aaaa. District attorney referring disparagingly to a member of the court of criminal appeals, 57bbbb. In a trial for keeping a disorderly house, remark of prose- cuting attorney directing attention to accused's dia- monds, "every glitter of which represented a lost soul," 57CCCC. Refusal of court to instruct to disregard remarks of prose- cuting attorney, etc., 89U. COUNTS, Conviction on one of two improperly joined, sd. Conviction on one and second insufficient, 5e. Conviction on one and denial of quashing of second, 5h. Misjoinder of counts, 5k. Refusal to require election between counts, 5m. Overruling of demurrer to ten counts, 5p. Reservation of decision on motion to elect until end of case, 5x. 461 Index. (Figures indicate sections, letters subsections.) Counts — Continued. Overruling demurrer to one count when convicted on other count, 5ee. Refusing to quash defective counts when one sufficient supports conviction, 5ff. Omission of word "feloniously" from one of three counts, 5ii- Jury warned to disregard evidence under abandoned count, 83a. Erroneous instruction as to two counts cured by conviction on third item, 83b. Where court instructed there was no evidence to support two counts and general verdict returned, 83c. Instruction relating to counts ignored by the jury, 83d. Error in charge relating to counts upon which defendants were found not guilty, 836. Failure of verdict to show on which count convicted, gig. Good and bad count will sustain a general verdict, gin. General verdict on several counts upheld if one sustains judgment, 91 r. Convicted on two counts and punishment less than might have been imposed on one, 96b. Conviction on four counts, sentence concurrent, insuffi- ciency of one or more count, 96g. COUNTY JAIL, Denial of motion to be recommitted to, I3f. COURT, Alleged misconduct of, 51. Calling the jury in the absence of the defendant, 51a. Conversation on the case between prosecuting attorney and the trial judge, 51b. Unrepressible smile by trial judge, sic. Limitation of argument to thirty minutes to each side, 5id. Absence during the argument to the jury, 5ie. Alleged abuse of legal discretion, 5 if. 462 Index. (Figures indicate sections, letters subsections.) Court — Continued. Improper answer to question of juror, 5ig. In praising prosecuting attorney and criticising attorney for the accused, 5ih. Permitting prosecuting attorney to question witness, assum- ing that property found in possession of accused was from house robbed, 5ii. Stating to jury the result of previous trial, 51J. Absence during the trial to walk sixty-eight feet to get a book, 51k. Expressing an opinion as to the guilt of the accused, 51I. Ordering accused into custody and refusing bail, 51m. Compelling counsel for accused to argue case at night, 5in. Conducting examination as to admissibility of confession in the absence of the jury, 51-0. Adjournment to meet at place of the offense where session was resumed, 5ip. Stating that testimony was of a very light class, if wit- nesses talked with others and could not remember their names, 5iq. Refusal to prevent additional counsel to assist the state, 5ir. Asking the jury how they stand, 51s. Permitting prosecuting attorney to exceed his time for ar- gument two minutes, 5it. Limiting argument to specified time, s8a. Remarks by the court, 56. Remarks by the court to the jury, s6a. Uninjurious remark by the court, 56b. Remark by court that men sometimes "swap" work, 56c. Remark as to consequences of pointing a gun at another, although intent to injure be absent, 56d. Remark implying a confession by accused, 56e. Discretion to comment on the evidence, 56f. Immaterial remarks to jury, 56g. 463 Index. (Figures indicate sections, letters subsections.) Court — Continued. Erroneous statement of the law by the court in colloquy with counsel, 56h. Remark by the court as to testimony of a witness, 561. Objectionable remarks do not raise presumption of preju- dice, 56J. Remarks not afifecting the result of the trial, s6k. Giving rer illection of testimony, but telling the jury to be governed by their, not by his, 56I. Remarks as to deceased having been in a penitentiary, 56m. Remarks by district attorney and judge derogatory to de- fendant, 56n. Remark that there was no evidence of offer of reward for the apprehension of perpetrator of deed, 56-0. Remark by court that witness should not be asked leading questions, as he was favorable to the defense, 56p. Remark as to the weight to be given to dying declarations as evidence, S6q. Remark that testimony is not very material, 56r. Comment of court on rejected evidence, "That cuts no ice," 56s. Remark of court as to angle at which bullet could glance, 56t. Remark that if hypothetical question was not based on evidence jury could exclude answer, 56U. Where jury differ as to testimony of witness court asking if counsel for accused would consent to have stenog- raphic report read, 56V. Impertinent remarks by court to defendant's counsel, s6w. Witness admonished to answer frankly, etc., 56X. On question as to how accused made her money, remark, "I think the foster-father would be apt to know as much as anybody," 56y. Expression of opinion as to improper testimony sought to be elicited, 56z. 464 Index. (Figures indicate sections, letters subsections.) Court — Continued. Where court told jury he wished them to consider the case during the night, as he wished to leave next morning, S6aa. Remark to counsel, not to read a part of an instrument without reading all of it, 56bb. Emphatic expressions of the trial judge, 56cc. Manifest mistake in attributing remark to a witness not shown by the testimony, 56dd. Remark that membership of accused might be a reflection on the church, 56ee. ■'' Remarks of presiding judge, "It seems to me that he is somewhat hostile," and "It is a leading question," 56!!. Remark that on cross-examination counsel had brought out what had been better let alone, 56g. In a prosecution for fraud, question to stenographer, "Did it strike you as strange that these letters were written on different letterheads," 56hh. Remark that testimony objected to by accused is material and counsel should not be so quick to take exceptions, 56ii. Remarks complimentary to prosecuting attorney and criti- cising the attorney for the accused, 56JJ. Remark, on being informed that jury could not agree, "Tell the jury as long as there is life there is hope, and this court lasts four weeks longer," 56kk. Remark, in admitting statement of accused, that whether act was voluntary or involuntary was a question for the jury, 5611. Remark that district attorney would not ask defendant the question unless he had some means of proving it, 56mm. Statement of trial judge to accused's attorney, that he was going to rule in his favor if he had sense enough to keep quiet, 56nn. 465 Errors — 30. Index. (Figures indicate sections, letters subsections.) Court — Continued. Remark to defendant's counsel during cross-examination, to let the witness answer the question before butting in, 56-00. Judge's statement in jury's hearing that "instruction asked by defendant is refused," 56pp. In a prosecution for rape, remark that there was no evi- dence that prosecutrix was over sixteen years old, 56qq. Failure to rebuke the solicitor general as to certain medical witnesses called by defense, 56rr. CRIMINAL ACTION, Erroneously treating proceeding as a, som. CRIMINATE, Refusal to inform a witness for the state that he need not answer where it would criminate him, 44hh. CROSS-EXAMINATION, 36. Of accused, 25q. Defendant eliciting incompetent evidence on, 36a. When improper cross-examination insuiificient to reverse the judgment of conviction, 95J. Erroneous question on cross-examination unanswered, 36b. Unduly restricting cross-examination, 36c. Erroneously cross-examining a physician as an expert, 36d. Unreasonable cross-examination, 36e. Improper refusal cured by subsequent cross-examination, 36f. Drawing out improper testimony on cross-examination, 36g. Repeating on redirect answer to question elicited on cross- examination, 36h. Cross-examination of warden as to reasons for denying privileges to prisoner, 36i. Cross-examination where no cross-interrogatories were at- tached to the commission authorizing deposition, 36]. 466 Index. (Figures indicate sections, letters subsections.) Cross-Examination — Continued. Refusal to permit continuance of cross-examination, 447. Refusal to allow cross-examination as to quarrel with ac-, cused prior to the commission of the crime, 44nn. Refusal to accused to cross-examine his own witness, 44ppp. Prosecuting attorney repeating question to witness on cross-examination, 52n. Remark by court that counsel brought out on cross-exam- ination what had been better let alone, 56gg. CUSTOM, In a prosecution for trespass, exclusion of evi- dence as to custom of tenants working the land, 44aaa. D. DECLARATIONS, 23. Proof necessary to admit acts or declarations of cocon- spirators, 23a. Premature admission of alleged coconspirator, 23b. Admission of wife's declaration in trial of husband, 23c. Admission of acts and declarations of alleged coconspira- tors, 23d. Admission of declarations by person jointly indicted with accused, 23e. Exclusion of declarations made by accused, 23f. Admission of declarations made by persons to deputy sheriff, 23g. In a prosecution for rape, instruction that the oral decla- ration or admission of a witness or party ought to be received with caution, 59-000. Charge directing the jury not to consider declarations made before the formation of the conspiracy, 6gi. DETECTIVES, Refusal to permit witness to be asked whether he had detectives following defendant just be- fore the trial, 44nnn. 467 Index. (Figures indicate sections, letters subsections.) DISBARMENT, When proceedings disbarring attorney from the right to practice are upheld, 98a. DISCHARGE, Denial of motion to, i3g. DISCRETION, See Legal Discretion, Abuse of. DISFRANCHISEMENT, Sentence of imprisonment which does not include disfranchisement, 966. DISMISSAL, for lack of indictment or information not a bar to another prosecution, 5z. On demurrer of plea in abatement, lol. DISORDERLY HOUSE, In a prosecution for keeping a disorderly house and usurious loan business, charge that jury might find third party as part owner a myth, 59hhh. Excluding testimony of one accused of keeping a disorderly house that she had not asked nor encouraged anyone therein, 44-000. Comment of state's counsel that accused had kept a house of ill fame and a gambling house, 57nn. In a trial for keeping a disorderly house remark of prose- cuting attorney directing attention to accused's dia- monds, every glitter of which represented a lost soul, 57CCCC. DRUNKENNESS, Instruction as to the effect of drunken- ness in its different stages, calling one stage "crazy drunk," 59qqq. DYING DECLARATIONS, 24. Of deceased, "They have got me," 24a. Admitting part of dying declarations, 24b. Excluding purported dying declarations, 24c. 468 Index. (Figures indicate sections, letters subsections.) Dying Declarations — Continued. Admission of alleged dying declarations, 24d. Remark by court as to the weight to be given to dying declarations as evidence, 56q. E. ELECT, Failure to elect on which oflfense to try, 13a. Failure to require state to elect which locality it would adopt as the place of liquor nuisance, 47a. ELECTRIC LIGHT, Refusal of evidence in defense for tam- pering with meters, 44V. EMBEZZLEMENT, Failure to grant bill of particulars on an indictment for embezzlement, 7b. Case, admission of receipts in, 21 r. Case, admitting report of auditing committee, 2iu. Special prosecutor saying that accused was guilty of an embezzlement not charged in the information, 57jjj. Instruction in prosecution for embezzlement upheld, 59dd. In a prosecution for embezzlement instruction as to the ownership of goods sold on credit, etc., sgeee. In a prosecution for embezzlement instruction that balance on hand was presumed to be lawful money, 62a. ERROR in writing "thirtee" for "thirteen" in complaint, 5g. Of clerk in naming term of court, 49a. A conviction in circuit court not reversed for error of court in the transcript, 49b. Failure to record an indictment, 49c. On change of venue, 49d. In filing instead of recording verdict before read to jury, 49e. Irregularity in selecting jurors, 49f. 469 Index. (Figures indicate sections, letters subsections.) Error — Continued. Blank left in writ of attachment, 4gg. Failure to enter appointment of attorney general pro tern, upon the minutes of the court, 49h. To include petition for removal in his transcript, 491. ■Minutes failing to show that jury returned in charge of ofificer, 49J. In omitting the word "days" in entering sentence, 49k. In failing to adjudge defendant guilty of the offense for which he was tried and convicted, 49I. In not enforcing a rule of practice, 50I. ERRORS, Technical errors, 48. Disregarded when right result is reached, 48a. Failure to prove averment with technical exactness, 48b. Harmless error, 48c. Clerical errors, 49. Consisting of irregularities, inaccuracies in rulings, etc., not seriously regarded, 50a. Defects in forms of informations, etc., immaterial, 50b. Inaccuracy in the form of the judgment, 50c. Capital conviction unaffected by nonprejudicial errors, 5od. Unavailable when guilt clearly proved, 5of. Serious errors necessary in the case of revolting homicide, 50g. EVIDENCE, Introducing witness after examination closed, 17c. Identifying papers and records not introduced in evidence. Unsworn witness allowed to testify, i7n. Permitting prosecutrix to hold baby while testifying, 17-0. Receiving incriminating evidence before establishing the corpus delicti, 19a, 19b, 19c. Written evidence, 21. 470 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Erroneous introduction of hotel register, 21a. Admission of stenographic notes of hotel register, 21b. Admission of letters of one secret society to another, 21c. Admission of uncertified copy of laws of beneficial order, 2id. Admission of certificate of protest, 21 e. In a prosecution for fraud, allowing witness to testify from records, 2if. Entry of date of birth in family Bible, 2ig. Admitting court and penitentiary records before identifying accused, 2ih. Admitting minute book of national bank, 21 i. Admitting baptismal register to prove age, 2ij. Admitting liquor dealer's bond, 21k. Admitting unauthenticated articles of incorporation, 21I. Admitting certified copy of judgment of former conviction, 2im. Admitting letter written by defendant's son to the mayor, 2in. Introduction of search warrant, return and affidavit, 21-0. Admitting copy of a copy of special tax stamp, 2ip. Allowing nurse to use chart to refresh her memory, and receiving same in evidence, 2iq. Admission of receipts in embezzlement case, 2ir. Demand upon accused by prosecutor to produce certain documentary evidence, 21s. Permitting state to introduce plat of place of crime, 2it. Admitting report of auditing committee in a prosecution for embezzlement, 21U. Permitting state to introduce record of conviction of ac- cused, 2IV. Of Catholic priest of record of births of the children of parish, 2iw. Testimony by accused, 25. 471 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Asking defendant whether this was the first time he ever was in trouble, 25a. Requiring accused to measure shoe he tried on, 25b. Statement that accused had a pistol at the time of the kill- ing, 2SC. Asking accused if he had a U. S. license to sell liquor, 25d. In a prosecution for perjury answer of defendant that he was not working because of illness, 256. Allowing state to corroborate in rebuttal statement of de- fendant under oath, 25f. Of material acts authorized by defendant, 25g. Asking defendant whether he testified on the preliminary hearing, 25h. Cross-examination on matters not mentioned in defendant's examination in chief, 2si. Permitting state to question accused as to an indictment against him in a federal court, 2SJ. State's attorney, referring to hole in accused's hat, "Isn't it a fact that you received that shot in another hold- up?" 25k. Testimony of accused cured that erroneously introduced against him, 25I; also, cured error in assailing his char- acter, 25I. In a prosecution for rape, evidence of other acts, 25m. Asking accused whether he had any idea who cut decedent, 2Sn. In a prosecution for larceny, asking accused whether in bankruptcy proceedings he declined to answer as tending to criminate him, 25-0. Where plea of insanity entered, asking defendant how he knew enough to get a gun, 25p. Cross-examination of accused, 25q. Eliciting from one of accused that weapons were found in his bureau, 25r. 472 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Asking accused if he would object to his wife testifying, 25V. Asking accused as to the commission of other offenses, 25t. Placing burden on accused to produce proof he did not have a pistol, 25U. Asking accused if he did not remember lying in wait in an alley for another person, 25V. Admission of statement made by accused to chief of po- lice, 25W. Of conspiracy, 26. Proof of conspiracy admissible after declarations of co- conspirators, 26a. Admission of threats made before formation of conspiracy, 26b. In a prosecution for conspiracy to suborn perjury, admit- ting evidence of other acts, 26c. Refusal to strike out testimony of one of the conspirators, 26d. Admitting acts of alleged coconspirator before conspiracy had been shown, 26e. that decedent's wife, a coconspirator, told witness she was going to have her husband killed, 26f. Prima facie proof of conspiracy to admit acts or declara- tions of one conspirator against another, 26g. Incompetent or illegal evidence, 27. Improper evidence by state where appellant testifies to the same effect, 27a. Improper evidence where facts otherwise proved, 27b. Improper evidence not prejudicial, 27c. Incompetent evidence that could not have influenced jury, 27d. Improper question eliciting proper answer, 27e. Improper evidence in an action for rape, 27f. Propounding improper question in good faith, 27g. Improper evidence where judgment is clearly right, 27h. 473 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Unchallenged reception of improper testimony, 271. Inadmissible cured by subsequent admissible, 27J. To require reversal improper evidence must tend to strengthen the state's case, 27k. On objection correction of form of question cures improper evidence, 27I. Irrelevant and irresponsive evidence, 28. Admission of irrelevant evidence that inflicted no harm, 28a. When irresponsive answers do not constitute error, 28b. Irrelevant evidence cured by withdrawal and jury in- structed to disregard it, 28c. Immaterial, 29. Immaterial evidence not prejudicial, 29a. Conclusions, 30. Conclusion cured by afterwards stating facts on which based, 30a. When testimony not objectionable as stating a mere con- clusion, 30b. Hearsay, 31. Hearsay evidence as to marriage in a polygamy case, 31a. Admission of hearsay as to disposition of deceased's body, 31b. Hearsay received under supposition that witness was testi- fying from personal knowledge, 31c. Admission of hearsay which was not prejudicial, 31 d. Hearsay volunteered by witness, which the jury were in- structed to disregard, 3ie. Improper question properly answered, 32. Favorable answer cures improper question, 32a. Admitting evidence relating to one count, 33. Erroneous evidence on one count found for defendant, 33a. Admitting or excluding evidence relating to but one count, 33b. Refusal to strike out, 34. 474 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Failure to strike out statement that witness told defendant his story was absurd, 34a. Refusal to strike answer of witness that deceased stated, "I am shot to kill," 34b. Refusal to strike statement, otherwise proved, from the case, 34c. Refusal to strike answer that defendant was always trying to hug every woman that came to the house, 34d. Admission of conversations, 35. Where conversation incompetent, preliminary question as to whether there was a conversation, 35a. Conversation between accused and third persons, 35b. Cross-examination, 36. Defendant eliciting improper evidence on cross-examina- tion of state's witness, 36a. Erroneous question on cross-examination unanswered, 36b. Unduly restricting the cross-examination, 36c. Erroneously cross-examining a physician as an expert, 36d. Unreasonable cross-examination, 36e. Improper refusal cured by. subsequent cross-examination, 36f._ Drawing out improper testimony on cross-examination, 36g. Repeating on redirect answer to question elicited on cross- examination, 36h. Cross-examination of warden as to reasons for denying privileges to prisoner, 36i. Cross-examination where no cross-interrogatories were at- tached to the commission authorizing deposition, 36J. Exceptions, S7- Improper testimony as to letters sent saved exceptions merely as to the number sent, 37a. Overruling exceptions on the ground of impertinence, 37b. Exception to evidence cured by admission, 37c. Impeaching, 38. 475 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Immaterial impeaching testimony, 38a. In impeaching witness by testimony on former trial, read- ing restricted to parts denied, 38b. Admitting impeaching testimony not contradicting any statement of accused, 38c. Permitting witness to be impeached by showing that he had been indicted for gambling, 38d. Permitting state to recall accused to lay foundation to im- peach him, 38e. Refusal of court to limit impeaching testimony to that pur- pose, 38f. Expert testimony, 39. When not error to refuse testimony of expert, 39a. Question to expert as to sanity of accused, 39b. Testimony of expert witness cured omission of proof of samples of butter and oleomargarine, 39c. Excluding from hypothetical question to expert assump- tion that there was no motive for the shooting, 39d. Receiving testimony of expert that alleged "blackhand" letter received by accused was in his handwriting, 396. Admitting answer of expert, "I believe it was homicide," and "I believe it was murder," 39f. Admitting evidence of expert as to whether physician who cured accused of insanity could tell what produced it, 39g. Opinion evidence, 40. Opinion evidence cured by cross-examination, 40a. Opinion by coroner as to position of deceased when wound was inflicted, 40b. Hypothetical question to physician calling for a legal opin- ion, 40c. Opinion that wound could have been inflicted with an ax, 4od. Admission of opinion by nonexpert witness that a crow- bar was a deadly weapon, 4oe. 476 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. When imbecility of prosecutrix was established admission of opinions of witnesses to her actions, 4of. Admitted out of correct order, 41. Irregularity in the admission of testimony, 41a. Admitting evidence for prosecution after defense had closed, 41b. Unanswered questions, 42. Unanswered improper question to accused, 42a. Unanswered improper question to a witness, 42b. Admitted, 43. Which both parties read to the jury, 43a. Conflicting evidence where credibility not involved, 43b. Materiality of evidence considered before reversal, 43c. Admission of partially competent evidence, 43d. Excluded evidence afterwards admitted, 436. Apparently contradictory statement by witness, 43f. Testimony as to chastity erroneously admitted, 43g. Admitting evidence of conviction of third person, 43h. Admitting evidence tending to warrant a greater penalty, 43i- Admitting oral statements of value in a prosecution for at- tempt to burn insured goods, 43J. Admitting statements of wife of accused, 43k. Admission of evidence that defendant kept account in an assumed name, 43I. Testimony of physician as to reasonableness of fee for post- mortem examination, 43m. Witness testifying to inculpating statement of defendant's wife, 43n. Asking witness whether his wife was a prostitute, 43-0. Results of experiments as evidence, 43p. Introducing, without discrimination, burglars' tools, where four are tried, 43q. 477 Index. (Figures indicate sections, letters subsections.) EviDENCi; — Continued. Admitting testimony of wounded person to acts of ac- cused, 43r. On a trial for gaming, evidence of policeman of what he saw, 43s. Permitting state to show that its witness had never before been convicted of any offense, 43t. Proof of different statement by witness to grand jury, 43U. Erroneous admission of dirk in evidence, 43V. Physician permitted to testify to wounds of accused, 43W. In prosecution for seduction, evidence of reputation of prosecutrix after first intercourse, 43X. Trying one for felony, state showing two others in jail charged with same offense, 43y. Evidence for the court offered in the presence of the jury, 43Z. Sustaining objection to proper question cured by answer to another covering same matter, 43aa. Admitting evidence also applicable to other offenses, 43bb. Admission of proof of making false claim to affect ac- cused's reputation for veracity, 43CC. Allowing prosecutor to testify in violation of exclusion rule, 43dd. Admitting evidence in prosecution for arson, that defend- ant's clothes smelt of kerosene, 43ee. In a prosecution for murder, admission in evidence of the bloody clothing of deceased, 43ff. Admitting testimony of absent witness at a former trial, 43gg- Prosecuting attorney asking questions to show the mora! depravity of accused, 43hh. Error cured by oifering to introduce minutes of corpora- tion, 43ii. Officer allowed to testify to crime defendant was extra- dited for, 43jj. 478 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. In a prosecution for carrying a pistol, evidence that de- fendant was under the influence of liquor, as bearing on intent, 43kk. Permitting prosecuting attorney to testify that a person offered him money to settle prosecution, 43II. Witness for defense permitted to state that in prosecuting defendant state was up against a hard proposition, 43mm. Admission in evidence that defendant gained access through a hole in a window screen, and testimony to contradict, 43nn. Permitting state to question witness as to his reasons for unfriendliness to defendant, 43-00. Permitting physician to testify how he treated wound of prosecuting witness, 43pp. Tending to establish guilty knowledge, 43qq. That accused had been in jail elsewhere charged with crime, 43rr. Of indictment against another for burglary, 43SS. That accused stated he was leaving home to keep from killing or being killed, 43tt. Admitting testimony of amount of money accused stated he made from the sale of liquors, 43UU. On a trial for making false bank report, evidence that ac- cused falsified report of another bank, 43VV. Unexpected answer of witness that he was holding defend- ant because he had been convicted, 43WW. In a prosecution for murder, witness asked why he did not take certain tools found near accused said, "I was not ready to die," 43XX. Admission of evidence of similarity between hair found in deceased's hands and that on head of accused, 43yy- In a prosecution under the local option law, admission of testimony that prosecuting witness was given money to buy alcohol, 43ZZ. 479 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Admission of evidence that an employe of defendant sold liquor in defendant's place of business, 43aaa. Receiving evidence of number of practicing physicians in a town, 43bbb. In a proceeding for unlawfully selling liquor evidence of number of votes cast in the election, 43CCC. In a prosecution for disturbing an assembly admission of evidence that after warning defendant and companions witness left, 43ddd. Admission of evidence of wounds inflicted by defendant on one who, accused alleged, threatened his life, 43eee. Pe:rmitting complainant to testify, not an expert, to blood poisoning, 43fff. Permitting sheriff to testify to nature and extent of wound, 43ggg- In a prosecution for rape, asking prosecutrix whether any- one had an)^hing to do with her before alleged crime, 43hhh. Where accused admitted writing some of the letters intro- duced, permitting witness to testify to defendant's hand- writing, 43iii. Where accused admitted striking decedent when down, admission of accused's brother's directions, "Now give it to him," 43jjj. Testimony of justice that a witness had testified in his court, 43kkk. In a prosecution for assaulting a city marshal, evidence by latter that the father was convicted, 43III. Admitting evidence in homicide case that accused was armed when arrested, 43mmm. Permitting question to prosecutrix, "Would you have yielded to his sexual embraces had he not promised to marry you?" 43nnn. 480 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. On a trial for homicide, testimony of witness that he said to a brakeman, "The man we want is there," 43-000. In a prosecution for murder, testimony of witness that when deceased followed defendant he raised his hand to strike him, 43ppp. On a trial of a police inspector for bribery, permitting wit- ness to state the purpose for which the money was wanted, 43qqq. Witness permitted to testify that he took pistol from de- fendant's hands after he had shot and killed a man, 43rrr. Witness asked how many times he had drunk beer at place in question in last year and a half, 43SSS. Where defendant accidentally shot a bystander, admitting that fact in evidence, 43ttt. On a trial for murder, admitting evidence of number of decedent's watch, 43UUU. Admission in evidence of cartridge box found in house of accused, on which was written, "Good-bye all," 43VVV. In action for rape, asking proseciitrix to what church she belonged, 43WWW. On a trial for perjury, witness asked if he heard mortgagor in another suit testify that note and mortgage were not drawn for amount stated, 43XXX. In an action for insulting a school teacher, permitting wit- ness to characterize language as vile, 43yyy. Permitting witness to testify that accused pleaded guilty to gaming, 43zzz. In a prosecution for illegally selling liquor witness stating he was convicted for selling liquor of the same kind, 43aaaa. In a prosecution for homicide, permitting witness to tes- tify that father of accused laughed at the killing, 43bbbb. Ruling that evidence tending to show adultery must be confined to facts within four days of the homicide, 43CCCC. 481 Errors — 31. Index. (Figures indicate sections, letters subsections.) Evidence — Continued. In a trial for killing a fellow convict, permitting district attorney to ask warden whether decedent was a busy- body, 43dddd. Admitting evidence with too much details, 43eeee. In a prosecution for rape, permitting district attorney to exhibit to jury undergarments worn by prosecutrix when assaulted, 43ffff. In a trial for murder, admitting evidence that decedent was an Anglo-Saxon, 43gggg'- In a trial for adultery, admission of evidence that wagons carried groceries to the house where it was claimed ac- cused and a woman lived together, 43hhhh. Admission of statement of witness that he had testified be- fore the grand jury on same matter, 43iiii. In a prosecution for arson, admitting evidence of contents of building burned, 43Jjjj. Admitting evidence that three weeks later home of witness was again burglarized, 43kkkk. In a prosecution for obtaining campaign contributions from gambler, evidence that protection was promised therefor, 431111. Excluded and same afterwards admitted, 44. In assault prosecution, excluding words preceding not heard by defendant, 44a. The exclusion of relevant and material evidence, 44b. Exclusion of admissible unprejudicial evidence, 44c. Improperly admitted, afterwards ruled out, 44d. Improper exclusion of evidence where act clearly proved, 44e. Accused denied right to testify to his intent, 44f. Withdrawing improper evidence and jury directed to dis- regard it, 44g. Improper testimony withdrawn in a prosecution for rape, 44h- 482 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Refusal to permit physician to tell if he treated case for arsenical poisoning, 44!. Exclusion of unavailable evidence as error, when similar ofifered by opponent also excluded, 44J. When exclusion of letter was not error, 44k. Hypothetical question and answer ruled out, 44I. Exclusion of immaterial corroborative testimony, 44m. Excluding evidence affecting the credibility of a witness, 44n. Refusal to permit accused to make unsworn statement to jury, 44-0. Excluding question as to the exact words of a conversa- tion, 44p. Refusal to permit testimony as to compromising case, 44q. Refusal to permit proof of restitution by prosecutor's teller, 44r. Excluding testimony of animosity between accused and witness, 44s. Statements elsewhere testified excluded in murder trial, 44t. Immaterial prejudicial testimony excluded from jury, 44U. Refusal of evidence in defense for tampering with electric light meter, 44V. Producing piece of spouting before offered in evidence, 44W. In a prosecution for forgery, refusal to permit respondent to exhibit note to jury, 44X. Refusal to permit continuance of cross-examination, 44y. Exclusion of testimony to show Chinese person arrested for being wrongfully in the United States was mentally deficient, 442. Excluding testimony that certain corporations were not sound financially, 44aa. Exclusion of family Bible for insufficiency of proof, 44bb. Excluding evidence when verdict in accordance therewith, 44CC. 483 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Excluding testimony of witness in support of the reputa- tion of the accused for truth and veracity, 44dd. Refusal to permit defendant to testify in rebuttal of the testimony of state's witness, 44ee. Rejecting evidence not reofifered after the court changed its rulings, 44ff. Refusal to permit witness who testified that reputation of another was bad, to be asked if he would believe him on oath, 44gg. Refusal to inform witness for state that he need not an- swer where it would criminate him, 44hh. Where one witness testified confession was freely made, refusal of preliminary examination of second by accused's counsel, 44ii. Exclusion of testimony that impeached witness had been pardoned, 44JJ. Excluding evidence of why accused did not visit the Chi- nese quarters on day following the homicide, 44kk. Excluding evidence of ability of one-armed man to wield a club effectively, 44II. Refusal to allow sheriff to answer question that arrest was the only way to stop the sale of "frosty," 44mm. Refusal to allow cross-examination as to quarrel with ac- cused prior to the commission of the crime, 44nn. Exclusion of witness's oral testimony, 44-00. Exclusion of letter written by decedent to daughter of ac- cused, 44pp. Failure to make preliminary examination of child too young to understand the nature of an oath, 44qq. Failure to require witnesses to answer questions, "Yes or No," 44rr. Failure to introduce transcript showing change of venue, 44SS. 484 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Refusal to permit accused's counsel to ask his accomplice testifying for the state, if he expected to be prosecuted, 44tt. Refusal to permit mother to testify to alleged admission of guilt by her son in another's presence, 44UU. In a prosecution for rape, excluding testimony as to repu- tation of prosecutrix, 44VV. Failure of accused to testify in his own behalf, 44WW. Failure to permit defendant to read to the jury his affidavit that he did not execute check alleged to have been forged, 44XX. Exclusion of certain letters where tabulation of contents was received, 44yy. Excluding question calling for a conclusion, 44ZZ. In a prosecution for trespass, exclusion of evidence as to custom of tenants working the land, 44aaa. In homicide case, exclusion of evidence to show apprehen- sion by accused of violence from deceased, 44bbb. On a trial for seduction, refusal to permit accused to tes- tify to entire conversation in rebuttal, 44CCC. Where there was no dispute as to the crime, refusal to permit a witness to state the precise time it occurred, 44ddd. Defendant not permitted to show he had used due dili- gence to secure a witness, so as to admit his preliminary examination, 44eee. Exclusion of testimony, whether witness observed any- thing peculiar and unnatural with reference to accused, 44fff. Exclusion of testimony that accused was "quiet" at a time when his conduct was a proper matter of inquiry, 44ggg. On a trial for maintaining a liquor nuisance exclusion of circulars containing lists of alcoholic medicinal prepara- tions, 44hhh. 485 Index. (Figures indicate sections, letters subsections.) BviDENCE — Continued. On a trial for murder, exclusion of written agreement be- tween defendant and deceased, 44iii. In a prosecution for attempted rape, excluding evidence of general reputation of prosecutrix for chastity, 44jjj. In a murder case, excluding question to physician, that if decedent had remained at the sanitarium he might have recovered, 44kkk. Excluding from evidence photographs of defendant and his supposed accomplices, 44III. Refusal to permit accused to prove a fact neither good for him nor giving a meritorious exception, 44mmm. On a trial for bribery, refusal to permit witness to be asked, whether he had detectives following defendant just before the trial, 44nnn. Excluding testimony of one accused of keeping disorderly house, that she had not asked nor encouraged anyone therein, 44-000. Refusing permission to accused to cross-examine his own witness, 44ppp. Refusal to defendant to question state's witness to affect his credibility, 44qqq. Excluding evidence corroborating uncontradicted testimony, 44rrr. Excluding evidence as to the effect of excessive drinking upon the human mind, 44SSS. Exclusion of question asked witness by accused, 44ttt. Exclusion of question, whether defendant was in the base- ment of the building burglarized at any time, and with whom, 44VVV. Exclusion of evidence of an examination of defendant dur- ing the trial and finding him insane, 44www. On a trial for illegally selling liquor, exclusion of evidence as to time witness entered accused's place of business, 44XXX. 486 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Refusal to require an exhibit to be marked for identifica- tion and retained in the court's possession, 44yyy. Where accused testified as to how killing occurred, exclu- sion of contradictory testimony, 44ZZZ. Refusal to appoint an interpreter, 45a. Admission in evidence of transcript of stenographer's notes, 46a. Erroneous filing of oath by stenographer employed by grand jury, 46b. Stenographer reporting his own testimony, 46d. Refusal to permit defendant to use private stenographer, to take down testimony, 46e. Question to witness cured by statement made by accused constituting a part of the res gestae, 47b. Court stating that testimony was of a very light class, if witnesses talked with others and could not remember their names, 5iq. Prosecuting attorney in argument quoting testimony of witness, 52e. Prosecuting attorney securing admission of incompetent testimony, 52h. District attorney attempting to show by another that a previous witness had mentioned a certain fact, 52J. On a trial for rape, district attorney reading testimony on preliminary examination, 52k. ^ Prosecuting attorney asking questions calling for incom- petent answers, 52I. Prosecuting attorney repeating question to accused on cross-examination, 52n. Prosecuting attorney asking improper questions, 52-0. Prosecuting attorney reading part of record of former trial, showing dismissal of others jointly indicted with de- fendant, S2U. Prosecuting attorney misstating the evidence, 52V. 487 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Prosecuting attorney repeating improper questions, 52hh. Court giving recollection of testimony, but telling jury to be guided by their, not by his, 56I. Remark by the court as to the weight to be given to dying declarations, s6q. Remark by the court that the testimony is not very ma- terial, s6r. Comment of court on rejected evidence, "That cuts no ice," 56s. Remark by court that if hypothetical question was not based on evidence jury could exclude answer, 56U. Remark of court that cross-examination had brought out what had been better let alone, 56gg. Remark of court that testimony objected to by accused is material, and counsel should not be so quick to take ex- ceptions, 56ii. Statement of trial judge to accused's attorney, that he was going to rule in his favor if he had sense enough to keep quiet, 56nn. Remark of court to defendant's counsel, during cross-ex- amination, to let the witness answer the question before "butting in," 56-00. In a prosecution for rape, remark by court that there was no evidence that prosecutrix was over sixteen years old, 56qq. Admission in testimony of improper remark of prosecuting attorney, 57c. Comment or allusion by prosecuting attorney to accused's failure to testify, 57g. Prosecuting attorney stating that witness would be cor- roborated by one who was absent, 57k. In action for rape, where defense sought to prove un- chastity, district attorney stated he could not do it, 57U. 488 ' Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Remark by prosecuting attorney that witness should have been permitted to testify in French, 57V. Inaccurate statement by state's attorney that proof showed accused tried to cut prosecutor's throat, 57-00. Statement by prosecuting attorney that prosecutrix had been corroborated by the testimony of two witnesses, 57UU. Prosecuting attorney making statement in order to make the testimony of a witness clear, 57vvv. Instruction not based on any evidence in the case, sgf. Improper testimony which the court instructed the jury to disregard, 59k. Instruction that unanswered questions stand as answered in the negative or as though not asked, 59-0. Charge inadvertently misstating part of the testimony, 59q. Instruction that evidence of other transactions could be considered only as bearing on guilt or innocence in case on trial, 59gg. Instruction that jury will apply their best common knowl- edge to the consideration of the evidence, 60b. Jury instructed to find against accused solely on the evi- dence aflfecting him, 6of. Instruction to jury to consider the records and proceedings in a prior case as to the falsity of defendant's testimony, 6oi. Instruction authorizing jury to reject all his testimony, if witness knowingly and falsely testified to a material matter, unless corroborated, 6om. In a rape prosecution, instruction enjoining the greatest care in considering the evidence of prosecutrix, 60s. Instruction that before the jury could consider testimony as to experiments, they must find they were performed under like conditions, 6obb. Charge applied to circumstantial evidence, 66f. 489 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Instruction that every fact and circumstance relied on to establish guilt must be proved by evidence beyond a reasonable doubt, 66j. Instruction that "unless the evidence fails to impress your minds beyond a reasonable doubt of defendant's guilt, you should acquit him," 661. Charge bearing on the testimony of one who has turned state's evidence, 66p. Charge that conspiracy may be shown by circumstantial evidence, 69b. Charge that burden was on defendant to prove insanity by a preponderance of the evidence, 71a. Instruction, where a witness has testified falsely, to disre- gard his testimony, without regard to its materiality, 73d. Instructions upon circumstantial evidence, 74. Instructions guarding the consideration of circumstantial evidence by the jury, 74a. Instruction which argued in support of circumstantial evi- dence, 74b. Instruction that if jury believe any witness has been im- peached they may consider such fact in weighing his testimony, 75a. Instruction that if an impeached witness has been cor- roborated, his testimony should be considered, 75b. Instruction on the effect of corroborating testimony, 78a. Instruction that if any witness testified falsely, the jury may disregard his testimony except as corroborated by credible testimony, 78b. Instruction cured by striking out and withdrawing erro- neous evidence, 80. Improper evidence withdrawn and jury instructed to dis- regard it, 80a. Instruction that good character of defendant ought to be considered with all the other facts in evidence, 81 d. 490 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Jury warned to disregard evidence under abandoned count, 83a. Where court instructed there was no evidence to support two counts and general verdict returned, 83c. Instruction dwelling upon a particular portion of the evi- dence, 8sa. Submitting to the jury the question of the materiality of perjured testimony, 86b. Charge relating to expert testimony which encroached on the province of the jury, S/d. Instruction that evidence tended to show certain facts, Sjg. Instruction improperly commenting on the evidence, Sjh. Refusal to charge that it is unsafe to convict on the un- corroborated testimony of an accomplice, Sge. Refusal to charge on circumstantial evidence, 8gg. Refusing instruction that the testimony of an accomplice requires corroboration, 89k. Refusal to charge that the evidence of guilt must be so strong as to exclude every reasonable hypothesis of in- nocence, etc., 89I. Refusal to give charge based on the testimony of one wit- ness, 8911. Refusal to charge that each juror should base his verdict on the law and evidence, etc., 89s. Refusal to charge that if a witness has wilfully sworn falsely, the jury was at liberty to disregard his entire testimony, Sgee. Refusal to charge that the jury should not permit any sym- pathy for or against the prosecution or accused to influ- ence their consideration of the evidence, 89gg. Refusal of requested charge that the testimony of witnesses employed to find evidence against defendant should be received with caution, 89JJ. 491 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Omitting to define "subsidiary facts," "evidentiary facts" and "essential elements of the crime charged," 90k. Failure to instruct that certain evidence could be consid- ered only for the purpose of impeaching defendant's wit- ness, 90I. Failure to caution the jury when considering the evidence of alleged confessions, 90X. Omission to charge as to the purpose for which certain evidence was admitted, 9oee. Failure in charge to limit the effect of evidence by a wit- ness who had been convicted of perjury, 90gg. Failure to instruct upon circumstantial evidence, 90VV. Where the evidence is conflicting the verdict is conclusive, 9ih. Any evidence sufficient to uphold verdict, 91J. Where verdict clearly shows that no weight was given to improper evidence, 91s. Variance between the information and the proof as to the character of beer, 93c. Variance between indictment and the proof, 936. Record of evidence excluded shows same was in fact re- ceived, 94b. Acquittal on erroneous evidence will not reverse conviction on other grounds, 95c. Incompetent evidence not affecting conviction, g5d. When conviction on circumstantial evidence upheld, 956. Where evidence failed to show death was caused by gun- shot wound, 95g. Direct conflict in the evidence insufficient to set aside the judgment, 95h. When improper cross-examination insufficient to reverse the judgment of conviction, 95J. Motion for a new trial for alleged newly discovered evi- dence, 97c. 492 Index. (Figures indicate sections, letters subsections.) Evidence — Continued. Conflict produced by the testimony of two witnesses tend- ing to establish an alibi, 98c. Burden of showing prejudice from the erroneous exclusion of evidence lies upon the appellant, 98J. EXAMINATION, Denial of defendant's motion to examine child prosecutrix, 13d. EXCEPTIONS, 37. EXCEPTION, Improper testimony as to letters sent saved exception merely to the number sent, 37a. Overruling exception on the ground of impertinence, 37b. To evidence cured by admission, 37c. Refusal to permit accused to prove a fact neither good for him nor giving a meritorious exception, 44mmm. Separate propositions in charge exception to en masse, 6ia. To portions of charge considered in connection with each other, 98b. EXHIBIT, Denial of motion to exhibit body to show de- formity, I3e. EXPERIMENTS, Results of experiments as evidence, 43p. Instruction that before the jury could consider testimony as to experiments they must find they were performed under like conditions, 6obb. EXPERT, Showing witness to be incompetent as an expert, I7i. Allowing expert to testify before qualifymg, how cured, 17k. Allowing nonexpert witness to state that defendant was rational, 17I. On insanity answering hypothetical question, I7n. 493 Index. (Figures indicate sections, letters subsections.) EXPERT WITNESS, See Witnesses. EXTRADITION, Officer allowed to testify to crime defend- ant was extradited for, 43JJ. F. FAILURE OF PROOF, Denial of motion to reopen for, 13!. "FELONIOUSLY," Omission of the word from one of the counts of the indictment, 5ii. FINDINGS submitted to the jury or omitted, 92. Failure to find on material issue which would have been adverse to appellant, 92a. Failure of jury to find on an issue not sustained by the evidence, 92b. Failure to require a finding that accused was not married to the girl, 92c. FORGERY, In a prosecution for forgery admission in evi- dence of certificate of protest, 2ie. In a prosecution for forgery refusal to permit respondent to exhibit note to jury, 44X. Refusal to permit defendant to read to the jury his affidavit that he did not execute check alleged to have been forged, 44XX. Witness testifying to forgery before examination as to his qualifications, S4c. Instruction in a prosecution for forgery, that if accused "actually" believed he had authority to sign a check in the name he signed thereto, the jury should acquit, 62!. FRAUD, In a prosecution for fraud question to stenographefl "Did it strike you as strange that these letters were writ- ten on different letterheads?" 56hh. 494 Index. (Figures indicate sections, letters subsections.) G. GAMING, On a trial for gaming evidence of policeman of what he saw, 43s. In a prosecution for obtaining campaign contributions from gambler, evidence that protection was promised there- for, 43IIII. Comment of state's counsel on excluded testimony that ac- cused had kept a house of ill fame and a gambling house, 57nn. In a prosecution for setting up a faro bank, charge ex- tending ofifense to game by another name, 59mm. Instruction relating to the keeping and operating of a gaming device, sprr. GRAND JURY, 4. Attorney assisting prosecuting attorney in room with grand jury, 4a. Failure of indictment to show that oath was administered to grand jury, 5-0. Proof of different statement made by witness to grand jury, 43U. Statement by witness that he had testified before the grand jury on same matters, 43iiii. Erroneous filing of oath by stenographer employed by grand jury, 46b. Stenographer in grand jury room, 46c. Failure of the record to show that the grand jury presented the indictment to the court, 94a. GRAND JURORS, Failure to spread panel of grand jurors upon the minutes of the court, 4b. 495 Index. (Figures indicate sections, letters subsections.) H. HABEAS CORPUS, 8. Giving defendant's Christian name incorrectly in mittimus, 8a. County attorney asking defendant if in habeas corpus pro- ceedings he had not been refused bail and remanded to jail, 52aa. HANDWRITING, Where accused admitted writing some of the letters introduced, permitting witness to testify to defendant's handwriting, 43iii. HEARSAY, 31. As to marriage, in a polygamy case, 31a. Admission of hearsay as to the disposition of deceased's body, 31b. Received under supposition that witness was testifying from personal knowledge, 31c. Admission of hearsay which was not prejudicial, 3id. Volunteered by witness which jury were instructed to dis- regard, 3ie. Added by witness stricken out by the court, S4d. Instruction that hearsay statements by accused had no probative value, and should not be considered, 62h. HYPOTHETICAL QUESTIONS based on testimony an- swered by expert on insanity, 17m. And answer ruled out, 44I. Remark by court, that if the question was not based on evidence jury could exclude answer, 56U. 496 Index. (Figures indicate sections, letters subsections.) IDENTIFICATION of papers and records not afterwards introduced in evidence, lyg. Producing one jointly indicted with accused for identifica tion, I7t. Refusal to require exhibit to be marked for identification, 44yyy. ILLEGITIMATE, Showing witness for defense to be, I'/h. ILLNESS, Denial of continuance for illness of counsel, 12I. INDICTMENT, information or complaint, 5. Too late on error to assert insufficiency of, 5a. Objection to form of, 5b. Showing previous conviction taken to jury room, 5f. Formal defects in an indictment, si. Overruling motion to quash indictment, 5J. Misjoinder of counts of the indictment, 5k. Failure formally to quash indictment, 5I. Refusal to require election between counts of indictment, 5m- Indorsing names of additional witnesses on indictment at the trial, 5n. Failure of caption of indictment to show grand jury was sworn, 5-0. Overruling of demurrer to ten counts of indictment, 5p. Under a statute requiring greater proof, 5q. Omission of name in one place in the indictment, 5r. Indorsement of surname only on the indictment, 5s. Overruling demurrer to defective indictment, St. Defective by reason of misnomer, su. Erroneous allegation in indictment as to person injured, 5v. 497 Errors — 32. Index. (Figures indicate sections, letters subsections.) Indictment — Continued. Surplusage in indictment, 5w. Allowance of an amendment to an indictment, 5y. Dismissal for lack of indictment not a bar to another pros- ecution, 5z. Lack of particularity in indictment describing offense, 5aa. Failure to charge offense in the indictment in the language of the statute, 5cc. Of railroad company for maintaining a nuisance, Sdd. Overruling demurrer to one when convicted on other counts of the indictment, 5ee. Refusal to quash defective when one count of indictment sufficient to support conviction, 5ff. Omission of word "feloniously" from one of three counts of indictment, 5ii. General verdict on indictment charging larceny and false pretenses, 91m. Improperly describing the structure burglarized, sjj. Failure of clerk to record an indictment, 49c. \ Irregularities prior to indictment immaterial, 5oe. Failure to indorse plea on the back of the indictment, 50k. Prosecuting attorney reading to jury the indictment alleg- ing defendant's two prior convictions, 52kk. Instruction relating to counts of indictment, 83. Variance between indictment and the proof, 936. Failure of the record to show that the grand jury pre- sented the indictment to the court, 94a. INFORMATION, Reasonable time to district attorney to file new information, 5gg. Indorsement of witness's name on information after case called for trial, lyp. Permitting county attorney to indorse names of additional witnesses on information before the trial, lyq. Defects in form of information, etc., immaterial, 50b. 498 Index. (Figures indicate sections, letters subsections.) Information — Continued. Taking to jury room affidavit filed with the information, 53P- Special prosecutor saying that accused was guilty of em- bezzlement not charged in the indictment, 57jjj. Instruction that statements of the prisoner were negatived by the information, 62b. INSANITY, Refusal to grant continuance where defense was insanity, lai. Question to expert as to sanity of accused, 39b. Admitting evidence of expert as to insanity of accused, 39g. Expert witness answering hypothetical questions, 17m. In homicide case, asking accused how he knew enough to get a gun, 25p. Exclusion of evidence as to an examination of defendant during the trial and finding him insane, 44WWW. Statement of commonwealth's attorney that plea of in- sanity had been manufactured by accused's counsel, 57iii. Instruction that jury could acquit if defendant was without sufficient mind or reason to know what he was doing, 60mm. Instruction relating to insanity as a defense, 71. Instruction that burden was on defendant to prove insanity by a preponderance of the evidence, 71a. Where accused pleaded insanity charge that such defense was sometimes simulated as a dernier resort, 71b. Instruction that plea of insanity is an admission of the commission of the act charged, though not of the crim- inal nature, 71c. Instruction limiting, where insanity, was the only defense, 7id. Instruction, that if one accused of burglary pleaded in- sanity and was incapable of understanding the act was 499 Index. (Figures indicate sections, letters subsections.) Insanity — Continued. a violation of the law of God and society, he should be acquitted, 71 e. Failure to charge that temporary insanity produced by the use of ardent spirits might be considered in mitigation of the penalty, 7'if. INSTRUCTIONS TO THE JURY, Miscellaneous, 59. Embodying an abstruct proposition, 59a. Modification of a correct charge, 59b. Proper cured previous questionable charge, 59c. Erroneous charge on the doctrine of self-defense, sgd. Erroneous charge not affecting the verdict, 59e. Not based on any evidence in the case, 59f. Subsequent oral instruction as to the form of verdict for manslaughter, 59g. Inadvertently confounding defendant for prosecution in charge to the jury, 59h. Informing jury that accused stood mute, S9i. On larceny and conviction of burglary, 59J. Improper testimony which the court instructed the jury to disregard, 59k. Erroneously employing "and" for "or," 59I. (Erroneous) as to the quantity of liquor sold, 59m. (Erroneous) regarding a sale of cider without a license, 59n. That unanswered questions stand as answered in the neg- ative or as though not asked, 59-0. Mentioning prosecutrix as "the little girl," 59p. Inadvertently misstating part of the testimony, 59q. That the matters for the jury were "cold, plain questions of fact," 59r. (Additional) given in the absence of defendant's counsel, 59S. Abstract instructions inapplicable to the facts of the case, S9t. 500 Index. (Figures indicate sections, lettej-s subsections.) Instructions to the Jury — Continued Favorable to the accused, sgu. Submitting issue of "gift" as well as sale of intoxicating liquors, 59V. That newspaper comments be kept from the jury, 59W. That distributions are not necessary to a prize distribution business, 59X. Employing the phrase, "incriminating circumstances," 59y. l(Erroneous) on a point outside of the case, 592. Containing an incorrect statement of a legal proposition, 59aa. Inaccurate language of an instruction that could not have misled the jury, 59bb. Minimum fine cured error in charge to the jury, 59CC. In prosecution for embezzlement upheld, 59dd. In a prosecution for accepting rebates, whether there was a device to avoid the Act of Congress, S9ee. Defendant not prejudiced by the word "impression" in an instruction, sgfif. Using the words "aids or abets" instead of "aids and abets" in the commission of a felony, 59gg. Miscalling the number of an instruction, 59hh. Referring in charge to the trial of the assassin of Presi- dent McKinley, 5911. Wrong, but in strict accord with the defense relied on, 59JJ. Inaccurate use of the words "or innocence" in charge to the jury, 59kk. Applying inapplicable principles of law, 59II. In a prosecution for setting up a faro bank, charge extend- ing offense to a game of another name, 59mm. In a prosecution for larceny instruction as to embezzle- ment, 59nn. Giving instructions requested by county attorney on paper containing his name and official title, 59-00. 501 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. Improper remark of prosecuting attorney cured by instruc- tions to disregard it, 59pp. When complaint charged five liquor violations in five dif- ferent months, instructions confined to one violation per month, 59qq. Relating to the keeping and operating of a gaming device, 59rr. On provoking a difficulty, 59ss. On false imprisonment other than an assault, 59tt. Substituting the name of the son for that of the father, S9UU. Stating the facts necessary for finding an abandonment of a wife by a husband, 59vv. Erroneously referring to information instead of complaint, 59WW. That if jury believed the crime was committed in this, in- stead of in M county, etc., 59xx. On a trial for rape, that defendant had been criminally in- timate with prosecutrix prior to alleged offense, 59yy. In prosecution for arson, that if house burned was inclosed and a roof on it, it might be regarded as a building, 59ZZ. In murder trial, that it was then an hour until Sunday, when the law forbade the transaction of legal business, 59aaa. That if there were twenty-five or thirty people there, that would make it a public place, 59bbb. ^ That a policeman or a detective is a competent witness, S9CCC. Phraseology of certain instructions not commended, S9ddd. In a prosecution for embezzlement as to the ownership of goods sold on credit, etc., 59eee. Upon justification, in a trial for assault with a dangerous weapon, 59fff. 502 Index. (Figures indicate sections, letters subsections.) Instructions to the; Jury — Continued. That evidence of other transactions could be considered only as bearing on the guilt or innocence in case on trial, 59ggg. In a prosecution for keeping a disorderly house and usu- rious loan business charge that jury might find third person as part owner a myth, 59hhh. In a prosecution of a saloonkeeper, charge that defendant was responsible for the acts of his servants, 59iii. That the jury is to determine whether a man who is inno- cent will remain silent when accused of a crime, 59Jjj. Misspelling hypothesis, pypothesis, S9kkk. Correct, but misapplied to the facts, 59III. That to prove the commission of the offense, it be con- fined to the time alleged in the indictment, 59mmm. That if used as a beverage, and when so used in sufficient quantities it would intoxicate, it was intoxicating liquor, 59nnn. In a prosecution for rape, instruction that the oral declara- tions or admission of a witness or party ought to be viewed with caution, 59-000. Containing a mistake in the initials of a name, S9Ppp. As to the effect of drunkenness in its different stages, call- ing one stage "crazy drunk," 59qqq. Court using paper containing instructions used on a former trial, with part held error by appellate court erased in ink, 59rrr. As to the effect of silence when the circumstances required an answer or denial, or other conduct, S9sss. Court's charge having caption that case was tried in an- other county, and failing to state offense defendant was accused of, or when and where committed, etc., 59ttt. That breaking and entering a store in the daytime was in- cluded in the charge of a breaking in the night-time, 59UUU. 503 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. In a prosecution for disturbing religious worship, instruc- tions using the term, "religious purposes," 59vvv. Directed to jurors concerning their duty, 6o. Cautionary instructions, 6oa. • That jury will apply their best common knowledge to the consideration of the evidence, 6ob. That jury assess punishment if defendant found guilty, 6oc. Requiring jury to find accused voted in a name other than his own, 6od. Requiring jury to find that beverage was intoxicating, 6oe. To find against accused solely on the evidence affecting him, 6of. That self-defense and manslaughter are not open for con- sideration, 6og. That a witness who testifies falsely as to one fact is to be distrusted in other parts of his testimony, 6oh. To consider the records and proceedings in a prior case as to the falsity of defendant's testimony, 6oi. Admonished to disregard proceedings against defendant for refusal to answer question, 6oj. That if jury failed to find defendant guilty of rape, then to find him guilty of assault with intent to rape on his plea, 6ok. That it required a unanimous vote, instead of eight, to find defendant not guilty of an assault, 60]. Authorizing jury to reject all his testimony if witness knowingly and falsely testified to a material matter, un- less corroborated, 6om. In a trial for violating the local option law, charge that if person prescribed for was not sick, the physician was guilty, 6on. That jury might convict, if they believed defendant had been twice convicted, though not guilty of oflfense charged, 60-0. 504 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. In a prosecution of a physician for obtaining patients by hired drummers, instructions that all who stood by and aided, etc., also are guilty, 6op. That it is for counsel to argue the case as to such counsel may seem proper, but it is for the jury to determine what has been proved, 6oq. That any statement contradictory of a witness could be considered only as to weight and credibility jury would give witness, 6or. In a rape prosecution, instructions enjoining the greatest care in considering the evidence of prosecutrix, 60s. On a trial for theft, that if defendants knew whose money it was, etc., they would be guilty of theft, 6ot. Urging upon the jury the importance of reaching agree- ment by calm discussion, and warning against unreason- able stubbornness, 6ou. That if jury find the alleg€d decedent is not dead, accused must be acquitted, 6ov. That the jury could jitdge from the wound whether it was inflicted with a glass, 6ow. That any person who knowingly sells or gives intoxicating liquor to one under twenty-one years of age is guilty, etc., 60X. In a prosecution under the habitual criminal statute, in- structions not requiring a finding that the larceny was committed in the county of the venue, 6oy. In a prosecution for selling liquor on Sunday, instructions to find defendant guilty for any offense committed within two years, 6oz. That if defendant struck R, and defendant was an adult male, while R was a female, then he would be guilty of aggravated assault, 6oaa. 505 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. That before the jury could consider testimony as to ex- periments, they must find they were performed under like conditions, 6obb. That in civil cases a preponderance of the evidence is suf- ficient, but in criminal cases a greater strength of mental conviction is necessary, 6occ. In a prosecution for attempted rape, instructions that if de- fendant embraced prosecutrix with her consent, then such acts would not constitute assault, 6odd. That it was the jury's duty to attach no significance to the fact that defendant failed to testify in his own behalf, 6oee. Where bloodhounds were employed, charge that jury must find the dogs were certain and reliable in following hu- man footsteps, etc., 6off. In a prosecution for keeping liquors on hand, instructions that if defendant rented a portion of the store to another, and knew whisky was kept there, he would be guilty, etc., 6ogg. In a prosecution for the murder of a new born babe, in- structions that if defendant, either alone or with the father, unlawfully killed the infant, etc., the jury should find, etc., 6ohh. That actual penetration is necessary, but no particular depth, and hymen need not be ruptured, 6oii. That if there are circumstances justifying a recommenda- tion of life imprisonment for murder, jury should make such recommendation, 6ojj. Where defendant was charged with mailing certain letters, instructions authorizing conviction if he mailed the let- ters, etc., 6okk. On a trial for illegally selling liquor, instructions that if transaction detailed by witnesses was a trick or scheme to evade the law, to find defendant guilty, 60II. 506 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. That jury could acquit if defendant was without sufficient mind or reason to know what he was doing, 6omm. On a trial for rape, instructions that if jury were convinced prosecutrix was seventeen years old or more, the verdict must be "not guilty," 6onn. That for the jury to vote, time after time, according to their first ballot, without trying to agree, was to violate their oath, 60-00. That robbery must have been wilfully committed, 60pp. (Voluminous) not scrutinized, 61. Separate propositions excepted to en masse, 61 a. Needlessly voluminous charges not scrutinized, 61 b. Relating to the accused, 62. As to the weight to be given to testimony of accused, 62a. That statements of the prisoner were negatived by the in- formation, 62b. In a prosecution for murder, charge relating to the shoot- ing of Z at the time it was alleged accused shot de- ceased, 62c. That jury consider defendant's demeanor and false state- ments when accused of the crime charged against him, 62d. That it is for the jury to determine whether accused had been denied a speedy and public trial, etc., 62e. Where accused fled, instructions to consider flight as a circumstance indicative of guilt, if he knew it was an officer from whom he ran, 62f. Requiring accused's withdrawal from combat to be clearly signified to restore his right of self-defense, 62g. That hearsay statements by accused had no probative value, and should not be considered, 62h. In a prosecution for forgery, that if accused "actually" be- lieved he had authority to sign a check in the name he signed thereto, the jury should acquit, 62i. 507 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. In a prosecution for robbery, that if accused retook the money under an honest belief it was his, the jury should acquit, 62J. That the jury could consider the interest of accused in de- termining his credibility as a witness, 62k. Authorizing conviction, if accused assaulted prosecutor with a knife, with intent to kill, maim or disfigure him, 62I. Upon legal presumption and the burden of proof, 63. In a prosecution for embezzlement, instructions that bal- ance on hand was presumed to be lawful money, 63a. In a prosecution for libel, placing the burden on defendant to prove justification by a preponderance of the evidence, 63b. That innocence was presumed until establishment of guilt beyond a reasonable doubt by legal evidence, 63c. That unexplained possession of recently stolen property laises a presumption of guilt, 63d. That a witness is presumed to speak the truth, but such presumption may be repelled by the manner in which he testified, etc., 63e. That the presumption of innocence is the presumption that every man performs his duty, until the contrary appears, 63f. In a prosecution for transporting liquor," instructions that burden was on accused to show that liquor conveyed by him was a lawful purchase, 63g. In a trial for bigamy, instructions that accused had the burden of showing a divorce from his former wife, 63h. That, till the contrary is shown, a woman is presumed chaste, 631. That when one is charged with the commission of a crime the law presumes him to be of average character, 63J. 508 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. In a prosecution for assault, with intent to kill, instruc- tions that every sane man is presumed to intend the nat- ural and probable consequences of his acts, 63k. Assumptions in instructions given, 64. Assuming the good character of the accused, 64a. Assuming that "blow" killed the deceased, 64b. Assuming that certain written testimony of a witness was a true copy of that given on the examining trial, 64c. Assuming that defendant assaulted prosecuting witness, 64d. Assuming conceded facts, 64e. Assuming that girl under the age of fourteen years can not give consent, 64f. Assuming the guilt of the accused, 64g. In a prosecution for perjury, charge assuming that defend- ant made the alleged false statement, 64h. Defining words and phrases, 65. Erroneous definition of embezzlement, 6sa. Defining larceny as a "taking and carrying," 65b. Departing from established technical definitions, 65c. Defining "reasonable doubt," 65d. Upon the subject of reasonable doubt, 66. Correctly defining reasonable doubt, 66a. Correct, when the several propositions are collectively con- sidered, 66b. One defective instruction cured by other properly stating the rule, 66c. Not error to charge that the jury should not hunt for doubts, 66d. Charge that reasonable doubt does not require strict proof of each link in the chain of evidence relied on 66e. Charge applied to circumstantial evidence, 66f. Where all the facts point to guilt, 66g. Additional unnecessary charge on reasonable doubt, 66h. 509 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. To acquit if there is any doubt of the guilt of the accused, 66i. That every fact and circumstance relied on to establish guilt must be proved by evidence beyond a reasonable doubt, 66j. Unnecessarily employing the word "license," 66k. That unless the evidence fails to impress your minds be- yond a reasonable doubt of defendant's guilt, you should acquit accused, 661. More favorable to the accused than to the prosecution, 66m. Meaningless instructions upon reasonable doubt, 66n. That one accused of crime is presumed to be innocent "unless" the contrary is proved beyond a reasonable doubt, 66-0. Bearing upon the testimony of one who has turned state's evidence, 66p. Upon the possession by the accused of the stolen prop- erty, 6'^. That possession by defendant of the stolen property is evi- dence of guilt, 67a. Making a general reference by an accused to the possession of the stolen property, 67b. That possession was not sufficient, but if defendant claimed ownership it tended to show guilt, 67c. Relating to confessions, 68. Submitting to jury the question of the voluntary character of the confession, 68a. Enjoining care in considering verbal confessions, 68b. Upon conspiracies and conspirators, 69. That conspiracy may be shown by circumstantial evidence, 69a. That conspiracy might be inferred from the facts and cir- cumstances, 69b. 510 Index. (Figures indicate sections, letters subsections.) Instructions, to thd Jury — Continued. On a trial for conspiracy, charge that all alike are guilty as principals, 69c. In a prosecution for homicide, that if one parent entered into the conspiracy both did, 69d. That a common design and unlawful purpose by two or more persons are the essence of a conspiracy, 6ge. Directing the jury not to consider declarations made be- fore the formation of the conspiracy, 6gi. In a prosecution for conspiracy against four persons, that a verdict might be against one only, 69g. That one may be criminally liable as a conspirator with- out having a pecuniary benefit in the matter, 69h. Confused, involved, conflicting and ambiguous, 70. Ambiguous charge in a prosecution for larceny, 70a. Naming contiguous mine for the one intended, 70b. Correct conflicting with incorrect instructions, 70c. Involved instructions probably conveying no meaning to the jury, 7od. Confused instructions favorable to accused, 7oe. Relating to insanity as a defense, 71. That burden was on defendant to prove insanity by a pre- ponderance of the evidence, 71a. Where accused pleaded insanity, charge that such defense was sometimes simulated as a dernier resort, 71b. That plea of insanity is an admission of the commission of the act charged, though not of the criminal nature, 71c. Limiting, where insanity was the only defense, 7id. That if one accused of burglary pleaded insanity, and was incapable of understanding the act was a violation of the law of God and society, he should be acquitted, 71 e. Failure to charge that temporary insanity produced by the use of ardent spirits might be considered in mitigation of the penalty, 7if. Upon the defense of alibi, 72. 511 Index. (Figures indicate sections, letters subsections.) Instructions to the Ju&y — Continued. Describing an alibi as part of the defense, 72a. Assuming, on defendant's plea of alibi, that house in ques- tion was burglarized, 72b. Giving advantage of alibi, not claimed, to defendant, 72c. In homicide case, commingling alibi with a charge on man- slaughter, 72d. Superfluous, inconsistent, immaterial, irrelevant and erro- neous, 73. Erroneous, but unprejudicial, 73a. Immaterial, if guilt well established, 73b. Not bearing on the case, 73c. Where a witness has testified falsely, to disregard his tes- timony, without regard to its materiality, 73d. Superfluous instructions, 736. Irrelevant and unprejudicial instructions, 73f. Inconsistent instructions, 73g. Upon circumstantial evidence, 74. Guarding the consideration of circumstantial evidence by the jury, 74a. Which argued in support of circumstantial evidence, 74b. That if jury believe any witness has been impeached, they may consider such fact in weighing his testimony, 75a. That if an impeached witness has been corroborated his testimony should be considered, 75b. Relating to motive and intent, 76. On sufficiency of mental power to form an intent, 76a. Upon the. question of intent, 76b. That a motive proven against one accused is a "strong" circumstance pointing to guilt, 76c. On motive, referring to prejudicial admission by counsel for one of the defendants, 76d. Upon accomplices and accessories, '^'/. Confounding principal with accessory, 77a. 512 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. On the trial of an accessory, that record of conviction of the principal was conclusive, 77b. That certain of state's witnesses were accomplices of ac- cused, 77c. Submitting to the jury the question whether a witness is an accomplice, 77d. On a trial for seduction, that prosecutrix was an accom- plice, yye. In a prosecution for lewdness, instruction that deals with the subject as though claimed accomplice was an adult, 77f. Where accused was prosecuted as a principal, instructions defining accomplice, yyg. In a prosecution for assault, with intent to murder, charg- ing accused as a principal, although he did not do the act, 77h. In a prosecution for cattle stealing, that if accused's brother did not aid him, the brother would not be a principal, yyi. As to principals, not requiring both parties to be present, 77j- As to corroborative testimony, 78. On the effect of corroborating evidence, 78a. That if any witness testified falsely the jury may disregard his testimony except as corroborated by credible testi- mony, 78b. Relating to the reading of reports, etc., 79. Reading extracts from opinion of Supreme Court as a part of the charge, 79a. Cured by striking out and withdrawing erroneous evidence, 80. Improper evidence withdrawn and jury instructed to dis- regard it, 80a. Upon character and reputation, 81. 513 Errors — 33. Index. (Figures indicate sections, letters subsections.) Instructions to the; Jury — Continued. Erroneous charge as to good reputation cured by subse- quent charge, 8ia. That character of house kept may be proved by reputa- tion, 8ib. That evidence of previous good character should be con- sidered with great caution, 8ic. That good character of defendant ought to be considered, with all the other facts in evidence. Bid. That accused's previous good character neither justifies nor "mitigates" the offense, Sie. Upon the grade and degree of crimes, 82. Defining degrees of homicide, where accused indicted for murder was convicted of manslaughter, 82a. Convicted of lower, error in instructions applicable to higher degrees immaterial, 82b. Where evidence clearly points to murder in the first de- gree, instructions on less unnecessary, 82c. When convicted of higher degree error in instructions as to lower immaterial, 82d. Stating minimum, but not maximum, penalty correctly, where the jury found a legal punishment, 82e. That under the law of commutation for good conduct the term of imprisonment would amount to a certain period of time, 82f. That robbery in the third degree was when accomplished by instilling fear of injury in the future, 82g. On returning a verdict of guilty the court instructed the jury that they should state whether they found him guilty of simple or aggravated assault, 82h. Though two larcenies can not be added together to make grand larceny, instructions that accused be found guilty if he stole articles aggregating in value $20, 82i. Relating to counts of the indictment, 83. 514 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. Jury warned to disregard evidence under abandoned count, 83a. Erroneous instructions as to two cured by conviction on third item, 83b. Where court instructed there was no evidence to support two counts, and general verdict returned, 83c. Relating to counts ignored by the jury, 83d. Error in the charge relating to count upon which defend- ants were found not guilty, 83e. Relating to punishment, 84. As to punishment, where jury not authorized to determine same, 84a. For the jury to fix the punishment not requested by the defendant, 84b. Incorrectly directing jury to assess punishment, 84c. Placing undue stress upon a particular instruction, 85. Dwelling upon a particular part of the evidence, 8sa. Court instructing the law too emphatically, 85b. Singling out one circumstance and focusing the jury's at- tention thereon, 85c. Submitting questions of law to the jury, 86. Erroneously charging that the jury are the judges of the law, 86a. Submitting to the jury the question of the materiality of perjured testimony, 86b. Erroneously submitting a question of law to the jury, 86c. Invading the province of the jury, 87. Which did not invade the province of the jury, 87a. Invading the province of the jury, 87b. Court in its charge arguing the facts of the case, 87c. Relating to expert testimony which encroached on the province of the jury, 87d. Where accused pleaded former acquittal and jeopardy, and court charged that pleas were not sustained, 876. 515 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. Commenting on the employment of armed men by defend- ant, 87f. That evidence tended to show certain facts, S/g. Improperly commenting on the evidence, Sjh. To be considered as a whole, 88. Inapplicable instructions which inflicted no injury, 88a. Correct instructions as a whole cure defects in a particular instance, 88b. The whole charge should be considered in judging as to the effect of alleged error in a part, 88c. If instructions as a whole are correct, isolated ambiguous one is harmless, 88d. Defect in one instruction reconciled by another, 88e. Separating words or phrases from the other parts of the instruction is unfair, 88f. Two paragraphs of a charge, one following the other, will be considered together, 88g. Objectionable features immaterial when instructions as a whole are correct, 88h. Charge partly by the clerk, partly by the court, and partly by commonwealth's attorney, 88i. Minor inaccuracies in a charge which are not calculated to mislead the jury, 88j. Where conflicting instructions considered as a whole fairly state the law, 88k. Refused, 89. Refusal to give instruction when a substantially similar one given, 89a. Refusal of instruction where jury found state of facts to which it was inapplicable, 89b. Where instruction refused embodies both a correct and ' an incorrect proposition of law, 89c. Refusal of instruction on the question of reasonable doubt, 89d. 516 Index. (Figures indicate sections, letters subsections.) Instructions to thi; Jury — Continued. Refusal to charge that it is unsafe to convict on the un- corroborated testimony of an accomplice, Sge. Refusal to instruct that defendant was not bound to burn anthracite coal, 8gi. Refusal to charge on circumstantial evidence, 8gg. Refusal to charge regarding family of accused, Sgh. Refusal to charge that there is but one assignment of per- jury, 891. Refusal to charge that defendant is entitled to a reason- able doubt upon every and any question of fact in the cause, 89J. Refusing instruction that the testimony of an accomplice requires corroboration, 89k. Refusal to charge that the evidence of guilt must be so strong as to exclude every reasonable hypothesis of in- nocence, etc., 89I. Refusal to charge that jury might find defendant guilty or innocent of some offenses and disagree as to others, 89m. Refusal to give charge based on the testimony of one wit- ness, 89n. Refusal to charge the presumption of innocence that the wife did not intend to poison defendant, 89-0. On a trial for allowing his wife to remain in a house of prostitution, refusal to charge that there must be a union of act and intent, 89p. Refusal to charge that if jury should reject the testimony of the state's only witness, they must find for defendant, 89q. Refusal to charge as to the lower grades of petit larceny, Sgr. Refusal to instruct that each juror should base his verdict on the law and evidence, etc., 89s. 517 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. Refusal to charge that, to convict, the jury must find that defendant, at the time he received the money, formed an intent to steal it, Sgt. Refusal of court to instruct to disregard remarks of prose- cuting attorney that defendant made like representations to another to obtain money, 89U. In homicide trial, refusal of court to instruct as to who was the first aggressor, 89V. Refusal to submit to jury plea of former conviction, where there was no testimony to support it, 89W. The refusal of court to charge that confession that defend- ant killed deceased will not convict unless the corpus delicti is otherwise established, 89X. Refusal to charge that the mere presence of accused, with- out participation, would not make him a principal, 89y. In a prosecution for receiving stolen goods, refusal to charge that defendant did not have to explain how the goods came to be where they were, 892. Refusal to charge that abusive and indecent language never justifies an assault, 89aa. In a prosecution for seduction, refusal of charge as to in- sufficiency of conduct of parties to show engagement to marry, Sgbb. Refusal of requested . instruction concerning motive and intent, and the efifect of advice of counsel, 89CC. Refusal of charge, that to find defendant guilty, you must find beyond a reasonable doubt that at the time he used, or offered to use violence, etc., 89dd. Refusal of charge that if a witness has wilfully sworn falsely the jury were at liberty to disregard his entire testimony, 89ee. Refusal to give cautionary instructions to the jury, 89ff. 518 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. Refusal to charge that the jury should not permit any sympathy for or against the prosecution or accused to influence their consideration of the evidence, 8ggg. Where it was undisputed a boy of sixteen knew it was wrong to steal, refusal of instruction that he could not be convicted unless he understood the nature and ille- gality of his act, Sghh. Refusal to instruct that each juror should make up his verdict for himself, and not surrender his own convic- tions because other jurors entertained different opinions, 89ii. Refusal of requested charge that the testimony of witnesses employed to find evidence against defendant should be received with caution, 89JJ. Refusal to charge that the confession of accused must be disregarded if not voluntarily made, Sgkk. Refusal to instruct that counsel for the state should not apply degrading epithets to accused, 89II. Omitted, 90. Failure to fully charge upon the question of justifiable or excusable homicide, 90a. Failure of the court to charge on the question of reason- able doubt, 90b. Omission to define "concealed weapons" and "disturbance of the peace," 90c. Failure to charge as to murder in the thii-d degree, 9od. Omitting to mention the venue in the charge, 9oe. Failure to instruct the jury that they might recommend to mercy, goi. The court may omit to give numerous instructions in de- tail, 90g. Omitting from a charge the words, "if the evidence war- rants it," 9oh. 519 Index. (Figures indicate sections, letters subsections.) Instructions to thb Jury — Continued. Failure to charge that the jury might agree as to one and disagree as to the other defendant, 901. Failure to instruct upon involuntary manslaughter, 90J. Omitting to define "subsidiary facts," "evidentiary facts," and "essential elements of the crime charged," 90k. Failure to instruct that certain evidence could be consid- ered only for the purpose of impeaching defendant as a witness, 90I. Failure to reduce instructions to writing, 90m. Failing to define "directly or indirectly," 900. Failure to instruct on petit larceny, 90-0. Failure to instruct that prosecuting witness consenting to the commission of sodomy made him an accomplice, 9op. Omission to instruct the jury as to the rules of law gov- erning the disposition of the case, goq. Nondirection where proper instruction not requested, gor. Omitting to instruct jury if they found defendant guilty of simple assault, 90s. In a prosecution for rape, failure to charge that jury might convict of simple assault, got. On a trial for robbery, omission in charge of word "fraud- ulent" before the word "taking" in defining robbery, 90U. Failure of the court to number and sign instructions, 90V. Failure to charge as to the effect of the prisoner's state- ment, 90W. Failure to caution the jury when considering the evidence of alleged confession, 90X. Failure of the court to tell the jury that they are the judges of the law, goy. Failure to define "accident" where accused not entitled thereto, 90Z. Failure to instruct that jury disregard statement of county attorney as to improper relations of defendant with an- other daughter, goaa. 520 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. Failure to instruct that jury could not convict if they be- lieved deceased was killed by his father and not by one of the defendants, gobb. Omission to instruct that if defendants made separate sales they should be acquitted, gocc. Failure to instruct on the question of good character, godd. Omission to charge as to the purpose for which certain evidence was admitted, poee. In a prosecution for attempted rape, failure to instruct that prosecutrix must be shown to have vigorously resisted, 9off. Failure in charge to limit the effect of evidence by a wit- ness who had been convicted of perjury, 90gg. Failure to charge that jury could not convict if game of "craps" was played at private residence, gohh. Failure to define perjury in the language of the statute, goii. Failure to give instructions on admissions or statements by accused, 90JJ. Plea of former conviction, failure to charge not to consider same if found not guilty, gokk. Failure to charge that if defendant committed assault as a defense jury should find him not guilty, 90II. Omission to instruct upon the necessity of corroboration, 90mm. Omission to charge that the state must disprove accused's statements to secure a conviction, gonn. Failure to charge that defendant's connection with the bur- glary must be shown, 90-00. Omission of the word "not" before "guilty" in an instruc- tion, 90pp. Upon flight, without adding that it should not be consid- ered unless induced by conscious guilt, goqq. Failure to charge that the jury have power to recommend that a felony be punished as a misdemeanor, gorr. 521 Index. (Figures indicate sections, letters subsections.) Instructions to the Jury — Continued. On a trial for burglary, failure to charge on explanation for possession of recently stolen property, goss. In prosecution for robbery, omitting to require the com- mission of an assault or violence on the person robbed, or putting him in fear, etc., gott. Failure to define the word "wantonly" in a prosecution for arson, 90UU. Failure to instruct upon circumstantial evidence, 90VV. Failing to define "prostitution" and "prostitute," 90WW. Submitting question of breaking without specific reference either to a daytime or night-time burglary, 90XX. Failing to instruct that it was for the jury to determine whether the interval between the provocation and the homicide was sufficient for the voice of reason to be heard, Qoyy. Failure to instruct that accused was not guilty of assault with intent to murder unless actuated by malice and intent to kill, gozz. INSURANCE, Admitting oral statements of value in' a pros- ecution for attempt to burn insured goods, 43J. Remark by prosecuting attorney, "It is common knowledge that people burn buildings for the insurance," 57hhh. INTERPRETER, 45. Refusal to appoint an, 45a. IRREGULARITIES, 50. Inaccuracies in rulings, etc., not seriously regarded, 50a. Serious necessary in case of revolting homicide, sog. Prior to indictment immaterial, soe. Entitling prosecution as by city instead of by state, soh. Informalities in making jury list disregarded, 5oi. Placed on trial for a misdemeanor before plea to indict- ment filed, soj. 522 Index. (Figures indicate sections, letters subsections.) IrrEGui