text:
    Driggers v. United States.
    No. 675,
    Ind. T.
    Opinion Filed May 13, 1908.
    (95 Pac. 612.)
    1. CONSPIRACY — Evidence—Acts and Statements Prior to Formation. Where the guilt of one of several defendants, jointly indicted for a felony, is sought to be established by evidence showing, or tending to show, a conspiracy between him and the others for the commission of the crime, evidence as to acts or statements of the others must be confined to such statements as were made, or acts done, at times when the proofs in the case permit of a finding that a conspiracy existed, and where the acts or statements of one of the defendants, prior to the formation of the conspiracy, are inadmissible as evidence against others.
    2. WITNESS — Impeachment—Prior Consistent Statement. It is a general rule that where evidence of contradictory statements is offered to impeach the credit of a witness, evidence of -statements made by him on former occasions consistent with his evidence are inadmissible. But where it is charged that the evidence of the witness is a recent fabrication, and is the result of some relation to the party or cause, or of some motive or personal interest, his evidence may be supported by showing that he had made a similar statement before that relation 0 or motive existed.
    3. EVIDENCE — H'earsay—Former Evidence — Death of Witness. Proof of the return of an officer on a subpoena that the witness is dead, the same not being authorized or required by law, and by the oral evidence of witnesses that they had been informed of his death, is ^sufficient to establish this as a fact to render competent in a final trial the testimony of such witness taken and transcribed at the preliminary examination.

      4. ACCOMPLICE — Instruction—Question for Jury. Whether a witness is an accomplice requiring corroboration to support a conviction is a question of fact for the jury, and hence an instruction that under Mansf. Dig. sec. 2259 (Ind. T. Ann. St. 1899, sec. 16021. a conviction cannot be had on the testimony of an accomplice unless corroborated was sufficient, and if was not error not to further charge that a certain witness was an accomplice. If defendant regards the word “accomplice” 'as a technical one requiring a definition by the court, he should so request, but not ask an instruction that a certain witness is an accomplice; that being a question for the jury.
    5. HOMICIDE — Instruction—“Mutual Combat.” A charge that if defendant was informed and believed that the deceased had taken possession of a field claimed by him, and that he would be there with an armed party on the morning of the killing, and that they had made threats against the life of defendant, and the defendant, knowing all of these things, voluntarily organized a party, arming them with deadly weapons for the purpose of meeting -said parties in deadly conflict, going to the place of the killing, and a conflict ensued, and the deceased was killed, then such conflict was a “mutual combat,” and all parties who knowingly and intentionally engaged in it are guilty of murder, was not, under the theory of the prosecution and the evidence in this case, erroneous.
    (Syllabus by the Court.)

      Appeal from the United States Court for the Southern District of the Indian Territory, at Pauls Valley;

      J. T. Dickerson, Judge.

    B. F. Driggers was convicted of murder, and brings error.
    Reversed and remanded.
    October 3, 1903, the grand jury of the United States Court for the Southern District of Indian Territory returned its indictment, charging B. F. Driggers, Tom McCarter, John Underwood, and Ted Bennett, with the murder of Robert G. Brady, and .L. W. Goff as a principal, in the second degree as to each of them. Goff was paced on trial at Ada; and after 'his conviction, the venue was changed, for the trial of the other defendants, to Pauls Valley, at which place the appellant in this case was placed on trial, in June, 1905, and the jury returned a verdict finding him guilty in the manner and form charged, without capital punishment. A motion for a new trial was filed and overruled, the defendant saving his exception, and the case was taken to the United States Court of Appeals of Indian Territory by writ of error. On September 26, 1905, that court affirmed the judgment of the lower court. Driggers v. U. S. 104 S. W. 1166. A petition for rehearing was filed, which was pending at the time Indian Territory was admitted as a state, and the case is in this court by virtue of the terms of the enabling act.
    On the consideration of the petition for rehearing this court granted it, and on the hearing on the merits of the case the Attorney General, represented by Hon. W. A. Ledbetter, filed his answer to the contentions of the appellant, and admitted error in the record sufficient to require us to reverse' the prior decision rendered herein. He admitted that the admission of the testimony of the witnesses Rhea and Saddler was erroneous, and then said: “There are other errors in the case, which will doubtless receive the attention of the court.” In view of the fact that we concur in the conclusion reached by .the Attorney General’s office, it will be unnecessary for us to discuss in detail and at length many of the propositions urged upon .the attention and considered by Mr. Justice Clayton, who wrote the opinion for the United States Court of. Appeals of Indian Territory, but will confine our discussion to those matters which, at the trial of the case anew, will probably arise again.
    The scene of the homicide was a farm, located near the little town of Jesse, in the Chickasaw Nation in Indian Territory, An Indian woman by the name of Colbert owned this land, which she had leased to a merchant by the name of McNeal. He, in turn, had rented the place, for the year 1902, to one of the defendants named in the indictment (Goff) and a man by the name of Riley. A crop of cotton had been raised on one part of the land, and a crop of corn on the other, the two crops joining, but without any fence or other division between them. Driggers, the defendant, who lived in that neighborhood, some time in the month of October, 1902, bought the right to run his stock in the cornfield after the corn was gathered, paying therefor the sum of $50. Riley and Goff had not picked their entire crop of cotton; and, there being no fence between the cornfield and the unpicked cotton, the defendant Driggers did not turn his cattle in, under an agreement with his vendors that they would protect him and see that he was permitted to turn in after the cotton crop was. gathered. Goff claimed that he had rented the land from McNeal for the year 1903, and it was under this asserted right of his that he agreed that Driggers might have the benefit of the stock field, notwithstanding the fact that the cotton crop was not all gathered at the end of December, 1902. McNeal testified that he had not rented to Goff, but the evidence shows that if lie had, he changed his mind, and rented the land to Robert G. Brady, the deceased, who was living in that neighborhood, running cattle, and who, desiring to use the stock field, the day before the homicide, started to run a fence across the land dividing the cotton field from the stock field, so that his cattle might run therein without interfering with the unpicked cotton crop. While he w^s engaged with his hands in the construction of this fence, Goff came to him in the afternoon, and, according to the testimony of Kelley, said to Brady:
    “ ‘What the hell are you doing here? This is my land.’ I told him McNeal had rented the place to Brady. I walked on down the line a piece, and walked on up to where Brady was. Goff, it seems to me, stayed there a while, and went back and came back with an Indian, Tom Me Carter [who was a son-in-law of the woman who owned the land.] Q. What was then said? A. Well, there wasn’t a great deal said, more than Brady told him. He says he didn’t want to hear any more of his noise. He [Goff] said: ‘If you put any cattle in here’ — I understood him to say he would kill the cattle As we started away, he said: ‘If you put any cattle in here, I will kill you.’ He stood there and talked, and he says: ‘Put them in, and I will be with you, God damn you.’ Brady didn’t seem to pay any attention to him.”
    This testimony was offered on the theory that a conspiracy had been formed between Goff and the defendant McCarter, which was subsequently joined by Driggers, and that it was admissible, as against Driggers by virtue of this fact. It was objected to on the part of the defendant, and its admission is assigned as one of the errors. Goff immediately went down to where Driggers lived for the purpose of informing him of the presence of Brady on the land, of the adverse claim, and the building of the fence. Driggers was not at home, but returned that night about 10 or ij o’clock, and thén learned that Brady was going to turn cattle in the cornfield.. During the rest of that evening, and that night, the defendants here gathered together Winchesters and shotguns and ammunition, and arming themselves with them, appeared next morning inside the field, along the highway where it was expected Brady would drive his cattle near to turn them in. Driggers testified that he and Kelley were enemies, and that he expected that he would accompany Brady when he came with the cattle; that he expected to drive them out if they were turned in; that his presence and purpose in going to the field with the parties named, armed as they were, was that he believed that when Brady saw they were there, he would not come up; that he supposes that he was there to resist any trouble that Kelly would bring about, and that he thought he would keep the cattle out. On the morning of the difficulty a man by the name of French Curtiss came down, ahead of the Brady party, in a wagon, with some wire and posts for the purpose of completing the wire fence; and on arriving at a point in the road near where Driggers and Goff and the other parties stood inside the field, and on the south side of the cross-fence, Goff told him to go back, and to get back quick. Curtiss testified that Driggers told him to go back and to tell them not to bring the cattle there. A short time after Curtiss turned back, the cattle were driven down the road by Brady, Kelley, and two brothers by the name of Saddler. Across the road, and nearly opposite the place where the defendants stood on the inside of the field, was a farm inclosed in a wire fence, the gate to which was either open or down, and when the cattle came opposite this point, some of them ran into the inclosure. The deceased, turning his horse out of the highway, ran in and drove these cattle out, crossed the road, and stopped near the Driggers party, got down from his horse, and, according to the evidence of the prosecution, began to arrange his saddle blanket, or at least handle his saddle, and it is at this time, it is asserted, without any overt act on his part, he was fired upon by the party with which defendant was connected, fell to the ground,arose, staggered or ran across the highway, and fell lifeless. Kelley, who had not dismounted, was also fired upon, receiving wounds, and his horse was killed. The Saddler boys both retreated. According to the testimony of the defendant, Brady rode up within four or five feet of the fence near where Driggers stood, got down off his horse, pulled up the knee wire of the wire fence about 2% feet, took hold of the post, when defendant said: “Brady, don’t you pull that fence down.” He jerked the fence down and ran backwards, grabbed for his gun and jerked at the fence all at the same time, and ran backwards, trying to get his gun; pulled it out, so that defendant saw it, who told him not to pull it. That he then shot him, or shot at him, with a No. 12 shotgun, loaded with B. B. shot, when he was about 12 or 15 feet from the fence. That he then shot at Kelley, whose horse fell with him across the road near the other fence.
    The witness Tom McCarter, who was jointly indicted with Driggers, but who was offered as a witness on. the part of the government, testified that at the time Brady got on the ground, and about the time the shooting commenced, he heard Driggers say to him: “Brady, don’t you do that.” Kelley, who was placed on the stand as a witness for the government, testified:
    “When Brady came out of the gate with those cattle, he rode in a northwest direction in the middle of the lane, and got off •of his horse in the neighborhood of the middle of the lane. I liad stopped, was simply moving a little at this time, on the right •of Brady. I was watching to see what he was doing, and to see what these parties were doing. And he kind of put his hand on the saddle, just as though he was going to pull the saddle up, and raised his head to look. That was the first time he looked towards them. And Driggers shot.”
    Contradicting and impeaching Kelley and the testimony which he gave in reference to what Brady was doing at the time the shooting was done, the defendant introduced a witness by the name of Boatright, who testified that, on the same day of the shooting, at his home Kelley stated that Brady got off his horse, and went over and took hold of the fence post, and that Driggers shot him. The government then, for the purpose of supporting Kelley and his testimony, and to show that the statement which he had made on the witness stand was in consonance with previous statements which he had made concerning the same matter, consistent with his evidence, introduced witness Rhea, who had a talk with Kelley, the Defendant, after he was wounded, concerning these matters. He testified that: “Kelley at the time did not say anything about the fence any more than Brady went inside the fence and drove some cattle out, came out, and got down off his horse, pulled his saddle up, and as he turned his head, the shooting commenced.” To this testimony of Rhea the defendant objected and excepted, and that it is error is most strenuously insisted.
    On the preliminary examination which took place before a United States Commissioner, Jim Saddler, one of the parties who accompanied Brady to the scene of the homicide, testified concerning the affray. It is not necessary for the purpose of this case to recite his testimony here, but it was most material, and in many ways in conflict with the' evidence of the defendant. On the trial of the cause he was not present, but the government introduced his written evidence as transcribed by the commissioner, upon a showing that by general report Saddler was dead, one witness testifying that his wife told him that her husband was dead; and the return of the subpoena, which was issued for him, made by the marshal who sought to serve it, while not appearing in the record, is conceded to have been by both parties, returned that he was dead. The record is voluminous, a great unmber of witnesses being introduced, and a great amount of evidence being offered, but the foregoing statement of facts is sufficient for the purpose of this opinion.

      H. M. Carr, Crawford & McKeown, Cruce, & Cruce, Mornan Pruiett, and Potter, Bowman & Potter, for appellant.

      Charles J. West, Attorney General, and W. A. Ledbetter, Assistant Attorney General, for the State. »
   Dunn, J.

(after stating the facts as above) : From the conelusion to which the court has come, that it will be necessary to reverse the case and grant to defendant a new trial, we will note the assignments of error only which in the new trial granted will be liable to again arise.

The first and second assignments of error, made by appellant, are the usual ones, that the verdict was contrary to the law and the evidence. The third assignment of error is an averment that:

“The court erred in permitting the government witness, Kelley, to testify, over the objection of defendant, to a conversation between the deceased, Brady, and one Goff, on the day before the difficulty, because the defendant was not present at such conversation, and because no conspiracy is shown to have existed at that time between the said Goff and the defendant, and the said testimony was purely hearsay.”

This evidence was admitted by _the court under the theory that a conspiracy existed between Goff, McCarter, and the defendant, or between Goff and McCarter, and afterward joined by Driggers, at the time these utterances were made. Under no other theory could this evidence have been admitted. The rule is as well established as any other that, after a conspiracy has once been formed, whether to bring about and effect the purpose finally accomplished or not, evidence of acts and expressions of one of the co-conspirators is admissible against the others, whether • the conspirator against whom it is introduced was present or not. This, under the view taken by the authorities that, when a conspiracy is created, the parties so agreeing constitute a separate and distinct individuality, and that the act of one is the -act of all, and that the expression of one is the expression of all made in pursuance of the conspiracy. Greenleaf on Evidence, vol. 3, § 94. When evidence is offered of an act or conversation of a party in his absence, who is charged with being a party to a conspiracy, the primary question to be determined is, whether or not the conspiracy had been formed at the time, or had the conspiracy ceased. If it had not been formed, or if it had Ceased, then the act or statement is inadmissible. In the case of People v. Kief, 126 N. Y. 661, 27 N. E. 556, the rule is laid down in the following language.

“Where the guilt of one of several defendants, jointly indicted for a felony, is sought to be established by evidence showing, or tending to show, a conspiracy between him and the others for the commission of the crime, evidence as to acts or statements of the others must be confined to such statements as were made, or acts done, at times when the proofs in the case permit of a finding that a conspiracy existed, and where the acts or statements were in furtherance of the common design. The acts or statements of one of the defendants prior to the formation of the conspiracy, or subsequent to its termination by the accomplishment of the common purpose, or by abandonment, are inadmissible as evidence against the others.”

The evidence of which complaint is made is the statement Goff made to Brady the day before the shooting, when Brady was on the land constructing a fence, when Goff said to him: “If you put any cattle in here I will kill you” — this being further connected with the offense by Goff’s statement to Brady at the time of the shooting, when he said, with an oath: “I told you the other day that I would kill you.” The evidence of the relationship between these parties is set out in the statement of facts, and we submit that under it there must be great doubt as to whether or not the conspiracy was formed at the time Goff used that language. It is true, if one had been formed, and Driggers joined it afterwards, his joining it would be an adoption by him of the things done or said by the others in furtherance of the general plan formed prior to his joining it. State v. May, 142 Mo. 135, 43 S. W. 637. Whether there is any evidence of a conspiracy is primarily a question to the court. There must be some tangible material evidence of the conspiracy or a promise of its production, before a court can properly admit evidence of statements made in the absence of the party against whom they are used, when he, in fact, was not present, and knew nothing of them. This evidence need not be direct and .positive or conclusive, in fact, but there should be some, and it is for the court to say, in the first instance, • whether or not it exists. This does not apply, of course, where it is sought to show, by the very language itself, that it was a part of the formation of the conspiracy. Goff testified that he had rented this place for the year 1903, and that he was entitled to the possession of it. There is nothing in the record to show that at the time Brady started to run his cross-fence over this land, either Goff or Driggers or Tom McCarter or any of the other parties had' any prior information that such was his intention. The fence was well under way when Goff discovered it, and, going over to where the work was going on, forbade continuance of it, He then left and returned, Tom McCarter accompanying him. There is no evidence from either McCarter or Goff or from any other source, as to why they went back, or what their purpose was. Goff again continued the conversation that he had begun before. McCarter said nothing, taking no part in the conversation, nor doing any act which would show that there was any concert of action whatever between them or of any formation of a conspiracy. He was simply present. He said nothing. He did nothing. Certainly Goff could not form a conspiracy with himself. It might be asked why McCarter went over there with Goff, what his purpose was, if it were not the beginning of a conspiracy? We cannot say what his purpose was. We do not know. There is no evidence in the record to show. He was living on the place. It belonged to his mother-in-law, and this, in our judgment, is clearly as strong and pertinent a reason as the one ascribed to it by the district attorney, and is more in consonance with the strict policy of the law, which presumes innocence and not guilt. It is true that immediately after this took place, Goff went to Driggers’ house. McCarter immediately began to take action to get ammunition and a gun, and that as soon as Driggers returned home, and on being informed of the circumstances, he likewise began to make preparations for the affray, but to us it seems more reasonable to conclude from the evidence that these acts were simply carrying out the purpose of the threat made by Goff, and the intent then formed, than was the threat part of a conspiracy formed prior to its being spoken. There is evidence of the conspiracy be ing formed immediately afterward. Wc cannot find any evidence that it was formed before. Hence we hold that this admission of the statement of Goff to Brady in the absence of Driggers was prior to any conspiracy formed and, it not being shown that he consented or assented thereto, was erroneous.

The fourth assignment of error raises the question of the admissibility of the evidence of Rhea, which was offered to support the testimony given by Kelley when it was sought to impeach him by Boatright, who testified, in reference to the statements made by Kelley, contrary to those which he had given upon the witness stand. In view of the contrariety of opinion existing among the text-writers and judicial expressions of the courts of the United States, and in view of the further fact that this question is a new one in this jurisdiction, have combined to impel us to give it a more extended examination than we otherwise should* It is the contention of the defendant that this was prejudicial error, and he cites a number of authorities to sustain his position. The theory adopted by some of the states in admitting this testimony is that, the credibility of the witness being impeached or assailed by proof of contrary statements made out of court, the witness may support his evidence, and his credibility is sustained by showing his consistent statements, made at or about the time when it is alleged the prior inconsistent statement was made; and some of the courts, unreservedly and without qualification, adhere to the doctrine that this evidence is admissible. Others hold that it is admissible under any circumstances, while others, with another line of authorities, and in our judgment by far the greater weight and number, hold that where it is attempted to be shown that the statement on the stand is a late fabrication, brought about by the changed situation of the witness to the case or the parties to it, or because of a motive recently formed, then the evidence of prior statements, consistent with those made on the stand undei oath, is properly admitted. The states which hold broadly and without qualification that such evidence is admissible appear to be the following: Texas, North Carolina, Missouri, and Indiana. The decisions of the courts of these states, which we have examined, and in which it is so held, are as follows: Jones v. State, 38 Tex. Cr. R. 87, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; Easterwood v. State, 34 Tex. Cr. R. 400, 31 S. W. 294; Lee v. State, 44 Tex. Cr. R. 460, 72 S. W. 195; State v. Exum, 138 N. C. 599, 50 S. E. 283; State v. Grant, 79 Mo. 113, 49 Am. Rep. 218; Hicks v. State, 165 Ind. 440, 75 N. E. 641. The r.ule generally-adopted in those states is expressed by the Supreme Court of Indiana, in the case of Hicks v.State, supra, in the following language:

“Where a witness is impeached by evidence of contradictory statements,, he may be supported by corroborating statements made at about the same time as the alleged contradictory statements.”

On the other hand, the following states seem to hold squarely againse the admissibility of such testimony under any circumstances: 'Mississippi, Maine, Iowa, Georgia, Colorado, and Alabama. The cases decided by these courts, which sustain this doctrine, and which we have examined, are as follows: Head v. State, 44 Miss. 731; Ware v. Ware, 8 Me. 42 (This was a case decided in 1834, and our researches do not disclose that the rule has been changed) ; State v. Porter, 74 Iowa, 623, 38 N. W. 514; Cook v. State, 124 Ga. 653, 53 S. E. 104 (but, in this connection, see the case of Sweeney v. Sweeney, 121 Ga. 293, 48 S. E. 984); Davis v. Graham, 2 Colo. App. 210, 29 Pac. 1007. In this case it will be noted, however, that there is a limitation placed upon the rule, which is that statements, made after the alleged contradictory matter, are not admissible. Sonneborn v. Bernstein, 49 Ala. 168. This case expresses the earlier doctrine of Alabama, and went to the extraordinary extent of holding that where a witness was impeached, not by proof of the contradictory statements made by him, but by showing that his general character for truth was bad, even under these conditions he may be supported, or his testimony may be corroborated by showing that, prior to the commencement of the action he made statements out of court, uniform and consistent with his testimony in court. This doctrine, however, was directly overruled, and the case went with it, in McKelton v. State, 86 Ala. 594, 6 South. 301, in which the court said:

“A witness having been impeached by proof of contradictory statements made by him on the preliminary examination of the defendant before a committing magistrate, it is not permissible to sustain or corroborate him by proving that, just before his examination as a witness on that occasion, he made statements to the magistrate in substance the same as his testimony on the trial.”

The view entertained on this question in that state is further complicated by the holding in the case of Nichols v. Stewart, 20 Ala. 358: “Proof of declarations, verbal or written, made by a witness out of court, is, as a general rule, inadmissible in corroboration of testimony given by him on the trial of a cause”— this case being one in which the testimony of a witness was contradicted by showing contrary statements out of court but it was allowed to be corroborated by evidence of prior consistent declarations. These different divergent opinions, cited from the Alabama court, are given to show how mixed some of the courts are on the propositions, but Alabama is not alone. Other states have made holdings practically as conflicting. The rule generally adopted in the above states is expressed by the Supreme Court of Mississippi in the case of Head v. State, supra, in the following language:

“To discredit a witness it is competent that he had made discordant statements at other times and places; but to re-establish his credibility, or to support what he has deposed on the trial, it is inadmissible to prove that he has made the same statements to third persons.”

We now come to a consideration of the authorities which aver the rule so well expressed by the Tennessee Supreme Court in the case of Legere v. State, 111 Tenn. 368, 77 S. W. 1059, 102 Am. St. 781, that we adopt its language for our expression of the same:

“It is a general rule that where evidence of contradictory statements is offered to impeach the credit of a witness, evidence of statements made by him on former occasions, consistent with his evidence, are inadmissible. But where it is charged that the evidence of the witness is a recent fabrication, and is the result of some relation to the party or cause, or of some motive or personal interest, his evidence may be supported by showing that he had made a similar statement before that relation or motive existed.”

Arrayed in support of the doctrine declared by the court will be found the Supreme Court of the United States, Arkansas, California, Kansas, Illinois, Louisiana, Michigan, Massachusetts, New Hampshire, New York, Pennsylvania, South Carolina, South Dakota, Tennessee, Vermont, and Washington. The cases examined, in which the appellate tribunals of the United States and the states named have adhered to the rule last declared are as follows: Ellicott and Meredith v. Pearl, 10 Pet. 412, 9 L. Ed. 475. Ark: Burks v. State, 78 Ark. 271, 93 S. W. 983. California: Barkley v. Copeland, 74, Cal. 1, 15 Pac. 307, 5 Am. St. Rep. 413; People v. Turner, 1 Cal. App. 420, 82 Pac. 397. Illinois: Chicago Railway Co. v. Matthieson, 212 Ill. 292, 72 N. E. 443; Id., 113 Ill. App. 246. Kansas: County Commissioners v. Vickers, 62 Kan. 25, 61 Pac. 391; State v. Petty, 21 Kan. 54; State v. Hendricks, 32 Kan. 559, 4 Pac. 1050. Louisiana: State v. Waggoner, 39 La. Ann. 919, 3 South. 119. Michigan: Stewart v. People, 23 Mich. 63, 9 Am. Rep. 78. Massachusetts: Commonwealth v. Jenkins, 10 Gray, 485. New Hampshire: Reed v. Spaulding, 42 N. H. 114. New York: Robb v. Hackley & Welton, 23 Wend. 50. North Carolina: Wallace v. Grizzard, 114 N. C. 488, 19 S. E. 760. Pennsylvania: Commonwealth v. Brown, 23. Pa. Super Ct. 470; Crooks v. Bunn, 136 Pa. 368, 20 Atl. 529. South Carolina: State v. McDaniel, 68 S. C. 304, 47 S. E. 384, 102 Am. St. Rep. 661. South Dakota: State v. Caddy, 15 S. D. 167, 87 N. W. 927, 91 Am. St. Rep. 666. Tennessee: Glass v. Bennett, 89 Tenn. 478, 14 S. W. 1085. Vermont: State v. Flint, 60 Vt. 304, 14 Atl. 178. Washington: State v. Coats, 22 Wash. 601, 61 Pac. 726. From the foregoing collaboration on the proposition involved it will be readily seen which side of the balance the great weight of judicial expression rests. We, therefore, declare the doctrine of this jurisdiction to be as annunciated by the Supreme Court of Tennessee above quoted, which may be epitomized by saying that such evidence is not admissible to support an impeached witness, except in those cases where not only his veracity is attacked, but his motive is also impugned. This being so, we will now consider the evidence to which objection is urged.

The learned Mr. Justice Clayton, speaking for the court in his decision in this case states: “We think the court erred in admitting the evidence of Rhea. But was this prejudicial error?” He then urges that it was not in the following language:

“The point in controversy was: Did the deceased at the time he was shot lay his hand on the post? And, if Kelley’s testimony was contradicted, it was only on this point. We have already pointed out that the tearing down of the fence under lhe circumstances was not felony, and that act did not justify defendant in the shooting and killing Brady; and, therefore, if he were killed because of that, it was murder, and if he were n it killed because of that, it was immaterial.”

We clearly appreciate the force of the argument presented, but to our mind the error which was committed was not so much in reference to the substantive facts to which the evidence related, as it was to the effect which it had upon the testimony of both Kelley and the defendant. The portion of the opinion quoted, relating to the tearing down of the fence, and that this act did not justify defendant in shooting and killing Brady, calls for reference to the terms of the Annotated Statutes of 1899 if Indian. Territory, relating to justifiable homicide. Paragraph 890 is as follows:

“Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony.”

And paragraph 1008 of the Annotated Statutes of 1899 of Indian Territory which provides:

“If any person shall willfully or maliciously burn or otherwise destroy any rail or plank fence, or other enclosure, * * * shall be deemed guilty of a felony.”

And it being made to appear by the evidence of defendant that, at the immediate time of the homicide or the shooting, Brady was in the act of pulling out or tearing down the fence, and that if his acts brought him within the purview of the statute last cited, this in itself appeared to be a justification for defendant’s action. The decision holds, and we think correctly, that they did not constitute a felony, and hence was no defense to defendant, even though he were reiving upon it. The deceased carried his revolver in a scabbard unuei his arm inside or his shirt, which was open in the front, and in addition thereto, had a slit in it. His revolver was found partially drawn from its receptacle, when he was examined, immediately after his death, as he lay upon the ground where he fell. It was the contention of Driggers that the deceased was engaged in drawing his revolver and throwing down the fence at the immediate time the shooting began, and that he did not shoot until he saw the revolver partially drawn and in the hand of Brady. Kelley was the government’s principal witness. He had been an officer in that country holding commission from the United States marshal’s office. Driggers testified that he and Kelley were enemies, and there was outside evidence tending to support him. Kelley and the defendant were the principal witnesses in this case as to what took place at the immediate instant of the shooting-. They both claim to know, and they alone testify on that point although, there was other evidence tending to sustain the government in its contention that, when Brady goi off his horse, he was engaged in fixing his saddle and blanket and did not have hold of the fence at the time the shooting began. Driggers was entitled to no more than the law gave him. But he was on trial for his life, and was entitled to all that the law gave him. If, as we have seen, from the authorities cited, a witness contradicted or impeached by proof showing or tending to show that he has made statements out of court contrary to his evidence in court, may be supported under those conditions only where the party producing the impeaching evidence charges that the testimony of the witness is a recent fabrication, due to a late altered relationship to the parties or the cause or of some new motive, then if these conditions did not exist, Rhea should not have been permitted to have sustained Kelley, and in view of the fact that there is no evidence charging these things, or tending to show that his attitude toward the cause or the parties was in any wise altered, it was improper to admit this evidence; and while we agree with Justice Clayton that it was error, we cannot say it was not prejudical. If it was not lawful to sustain Kelley in this matter, Driggers was entitled to be relieved of the support given the adverse witness’ evidence, and of the imputation which such support cast upon his own. If the jury believed that Kelley was telling the truth when he stated that Brady did not have hold of the post, they necessarily believed that the defendant was guilty of falsehood. If they believed that Kelley told the truth, and that Driggers falsified, in reference to the fact mentioned, which occurred contemporaneously with the shooting there can be no question that they would, at the same time and with good reason, come to the conclusion that Kelley also told the truth in reference to the shooting, and that here again Driggers was falsifying. It was this effect which the evidence in support of Kelley had, which to us appears to have constituted its chief prejudicial effect, rather than of the mere conflict in the evidence as to whether Brady did or did not take hold of the fence.

Was the evidence of Jim Saddler "admissible ? It will be observed that Saddler’s evidence was taken before the United States Commissioner. He was not present at the trial of this cause, and his evidence as transcribed was admitted and read to the jury, over the objection of defendant, upon proof of the officer’s return on the subpoena issued for him, showing that he was dead; and also it appears by the testimony of other witnesses that they had been told that he was dead. The question now presents itself, taking into consideration the duty of the court in the admission of evidence under circumstances of this character, was this proof of legal sufficiency as a foundation for secondary evidence ? Paragraph 1995 of the statutes of Indian Territory provides:

“A subpoena may be served by the sheriff, coroner or any constable of a county whose return thereof shall be proof of the service.”

Encyclopedia of Pleading & Practice, under the title “Returns”' (volume 18, p. 963), states:

“An official return is the best evidence of the doings of the ■ officer under the mandates of the writ or process, and is sufficient as proof of the facts which the officer is authorized and required to certify.”

The question then arises, was the marshal in this case authorized and required to certify to the death of the witness, to secure whose attendance he endeavored to serve the subpoena? Was this the return authorized by the statute ? This question -is answered by the Supreme Court of the United States in the case of Walden v. Craig, 14 Pet. 147, 10 L. Ed. 393, wherein Mr. Justice McLean, who delivered the opinion of the court, says:

“It is admitted that the marshal’s return of service, or non-service, which he indorses on the process, and of which he has official knowledge, becomes matter of record, and is binding on the parties. But the marshal can only know, in common with other citizens, of the decease of a person named in the writ; and if he indorse the fact of such decease, though it may be spread on the record, it is clearly not binding on the parties. Shall a rumor which shall, in the opinion of the marshal, justify such indorsement make the fact a matter of record? It may excuse the officer, but it does not bind the party whose rights are involved.”

Th'e officer in the case at bar may have known, in common with the other citizens, of the decease of the witness Saddler; but his return thereof on the subpoena not being authorized and required by law, was clearly not binding on the defendant. When he went beyond the statutory requirement and certified to a fact not made by law a part of his official duty, such certificate or such statement then contained no greater evidentiary or probative force than if made by any other person, one not an officer. Obermier v. Core, 25 Ark. 562. This being true, the question)then arises, what force was the evidence of the other parties called and examined, who testified that they had been told that Saddler was dead?

We have examined a number of authorities on this proposition, and as usual, on close questions of this kind, there is contrariety of opinion among the courts. Alabama (Burton v. State 107 Ala. 68, 18 South. 240), Michigan (Wheeler v. Jenison, 120 Mich. 422, 79 N. W. 643) and Iowa (Spaulding v. Railway Co., 98 Iowa, 205, 67 N. W. 227) hold that the matter is addressed to the sound discretion of the court, and that hearsay evidence is admissible to prove the absence of a witness from the jurisdiction, and sufficient to sustain the admissibility of secondary evidence. While this is true in the cases cited, in Alabama and Iowa the same courts have also held to the contrary on the same proposition. For instance, a later case in Alabama (Mitchell v. State, 114 Ala. 1, 22 South. 71) holds:

“Where an officer, who had for execution the subpoena for an absent witness, and had returned it ‘not found,’ testifies that he had hunted for the witness, and she could not be found in the county, but he did not know that she had left the state, he cannot, for the purpose of laying a predicate for the introduction of evidence of the testimony -of such absent witness given on the preliminary trial, further testify as to what was the report in the neighborhood where the witness lived as to her whereabouts, or that it was the general report in her neighborhood that she had gone out of the state; such evidence being merely hearsay and inadmissible.”

In an earlier case in Iowa (Baldwin v. Railway Co., 68 Iowa, 37, 25 N. W. 918) the court holds:

“Under the provisions of section 3777 of the Code the shorthand reporter’s notes of the testimony of a witness cannot be used on the trial of another cause, without first showing, as in the case of the use of a deposition, that the witness himself cannot be produced in court; and evidence that the witness was reputed to have left the state was not sufficient for the purpose.”

The fact relied upon was the death of Saddler, and it was sought to prove it by showing hearsay statements that he was dead. No facts stated before the court established Saddler’s death. All that anything in the evidence proved was that the parties who testified had been informed by others that this was a fact. This was unquestionably unallowed hearsay, and was inadmissible to prove the fact; and as a fact it must be proved to admit the evidence. Hearsay evidence is admissible in many instances, but where it is sought to introduce the evidence of a witness taken on a prior trial, based on the fact of his death, this death must be shown as a fact. And the court, in overruling the objection of defendant to the introduction of Saddler’s testimony, committed error. All that these witnesses testified to could have been true, and Saddler may not only have been alive, but actually within the jurisdiction of the court. If he was he should have been produced in person. If he was not, this should have been proven as othei facts, by the testimony of some one who knew it.

The defendant took formal exception to but one instruction given by the court. This was the instruction relating to the law of mutual combat, but he offered to the court, and requested that they be given to the jury as the law of the case, six instructions which, with the exception of No. 2, related generally to rights which he claimed, growing out of his possession of the field over which the controversy arose. All of these were refused, and defendant urges error therefor. Instruction No. 2, which he offered, relates to the instruction in reference to Tom McCarter, who was one of the defendants jointly indicted with Driggers. Justice Clayton, speaking for the Court of Appeals in the decision heretofore rendered in this case, so accurately states the law applicable that we adopt that portion of the opinion as ours, and agree with that court that there was no error in refusing this instruction in view of the one given. His language is as follows:

“The eighth assignment of error complains of the charge of the court relating to the necessity for corroborating testimony of an accomplice before conviction can be had. The defendant requested the following instruction. ‘You are instructed that Tom McCarter, the witness introduced by the government, is an accomplice in the offense charged against the defendant, and a conviction cannot be had upon his testimony, unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that an offense was committed, and the circumstances thereof.’ The charge of the court was as follows: ‘Under the laws of Arkansas (section 1602, Ind. T. Ann. St. 1899) it is provided as follows: “A conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if. it merely shows that the offense was committed and the circumstances thereof.” ’ An exception was saved to the refusal of the court to give the requested instruction, but none saved as to the charge given. The only difference between them is that in the requested instruction the court is asked to charge the jury that Tom McCarter was an accomplice, while the instruction given left that question to the jury. Whether McCarter was an accomplice or not was a question of fact, to be determined by the jury. ‘The court is not required to affirmatively charge that a witness is an accomplice. Where he is admitted to be such, or the facts place this beyond dispute, the court may so charge, without invading the rule that charges should not be upon the weight of the evidence. Whether or not a witness is an accomplice is a question of fact, and the charge may be so framed as to submit this as an issue to the jury. It was not necessary, in this case, to instruct the jury that Anderson was an accomplice.’ (Dill v. State [Tex. Cr. App.] 28 S. W. 950.) ‘It is urged that it was plain from the testimony of the witness Kelley that he was an accomplice of the dedefendant, if defendant committed the crime alleged, and the court should have so instructed the jury; but the court fully and carefully instructed as to the weight and effect of the testimony of an accomplice, and to have gone further and told them that Kelley was an accomplice would, have been clearly a charge with respect to matters of fact, which is not allowed.’ (People v. Sansome, 98 Cal. 235, 33 Pac. 204) See, also, Spears v. State, 24 Tex. App. 537, 7 S. W. 245. If the plaintiff in error regarded the word ‘accomplice’ as a technical, legal one, requiring, at the hands of the court, a definition, he should have requested it, and not by asking a declaration on the part of the court that McCarter was an accomplice, for this would be a finding of fact from the proof. And this was the effect of the requested instruction. ‘While in one sense it is undoubtedly the duty of the judge to give instructions to the jury covering the entire law of the case, as respects, all the facts proved, or claimed by the respective counsel to be proved, still, if he omits something, and is not asked to supply the defect, the party who remained voluntarily silent cannot complain.’ (1 Bishop, Cr. Proc. § 98; Carroll v. State, 45 Ark. 548.) The court followed the language of the statute, and in this case it was amply sufficient, and there was no error in refusing the requested instruction.”

In reference to the right which Driggers had, claiming, as he did, the possession and the right of possession of the field under contest, he requested the court to give the following instruction:

“If the jury find from the evidence that the' defendant Driggers had rented the stock field, referred to in the testimony, from Goff and Riley, and was in possession of the same, then the deceased would not have the lawful right to eject the defendant therefrom by force of arms. And if you further find from the evidence that the deceased attempted to take the possession of said stock field from the defendant Driggers with force of arms under such circumstances as reasonably indicated to defendant that it was the purpose of the deceased to use deadly weapons in obtaining possession of said stock field, then defendant Driggers had the legal right to meet force with force, and if the deceased by any act then done manifested an intention to kill defendant Driggers or to inflict serious bodily injury upon him, then the defendant had the legal right to kill the deceased; and if you so find, you will acquit the defendant. If the jury believes from the evidence that defendant Driggers was in his own field and on his own premises, and that he was advised that the deceased had threatened to take possession of his property by force, and in good faith believed, as a reasonable man, that the deceased intended to kill him or do him great bodily injury in order to get possession of the field, and whilst so in his own field deceased came there and undertook to enter the field by tearing down the fence, and in a violent threatening manner reached for his pistol, and with said pistol partly drawn in a threatening manner undertook to enter the field where defendant was, and that defendant believed, as a reasonable man, that deceased intended to kill him or do him great bodily injury, and acting under the influence of said belief, whilst deceased was so endeavoring to enter the field, defendant killed him (deceased), the killing would be justifiable.”

We believe from a reading and careful consideration of these instructions that they correctly state the law in reference to the right Driggers had in the premises and his right of defense in resisting the efforts of Brady to secure or take possession of the land. These being correct, the question now arises, did .the court give these instructions to the jury, or did the charge which he gave contain substantially the same matter?- The court’s instructions on this subject are as follows:

“You are instructed that a man may use force to defend his real or personal property, in his actual possession, against one who endeavors to dispossess him without right, taking care that the force used does not exceed what reasonably appears to be necessary for the purpose of defense and prevention. But in the absence of an attempt to commit a felony, he cannot defend his property, except his habitation, to the extent of killing the aggressor for the purpose of preventing a trespass; and if he should do so, he would be guilty of a felonious homicide. Life is too valuable to be sacrificed solely for the protection of property. Rather than slay the aggressor to prevent a mere trespass, when no felony is attempted, he should yield, and appeal to the courts for redress. You are instructed that, although you may believe from the evidence that the deceased had rented the lands in controversy, and was entitled to the possession thereof, still he was not justified in driving his cattle thereon, or taking possession of the land by force, if the same was in the actual possession of the defendant. But the court would instruct you that an attempt of the deceased to drive his cattle on the premises would not of itself be a.felony.' If you believe from the evidence beyond a reasonable doubt that the defendant, either by himself, pr acting with others, armed himself, and had others with him who were armed, for the purpose of going to the stock field in question and preventing the deceased from driving the cattle into said stock field, and that his purpose in being so armed was to prevent an entry into said stock field on the part of the deceased with said cattle, and if you further*believe that it was his purpose and intention in being thus armed and present at said place to make an assault upon and kill the deceased, or otherwise attempt to injure him with a deadly weapon, if the deceased attempted to drive said cattle into said stock field, and in pursuance of said purpose he did shoot at and others acting with him did shoot and kill the deceased, then in such case such act upon the part of the defendant, if the deceased was thereby killed, is murder, although you may believe that the deceased was fired upon and his death ensued thereafter by reason of the fact that he may have attempted to pull down the fence for the purpose of entering said cattle.”

It will be observed that the instructions given by the court were probably predicated upon the testimony which Kelley gave concerning the threat made by Goff on the day previous, to the effect that if Brady put the cattle into the field, he would kill him; either this, or upon the facts which developed between the time this threat was made and the affray. If upon the former, then it was correct, as the evidence we have found was incompetent; and if upon the latter, it seems to us that it scarcely takes into consideration, to the extent to which defendant was entitled, his evidence given as to why he went to the field, and the contention made in reference to his claim of right there. His claim being, as stated by his counsel in his brief, that “he was on his own premises, trying to protect his own property against the wrongful trespass of the deceased, and while so protesting, and while making no effort to kill the deceased, the deceased assaulted him with a deadly weapon,” and that the homicide took place, not by reason of the attempted trespass on the property, destruction of the fence, nor the turning in of the cattle on it by deceased, but because of the alleged attempt of deceased to draw his revolver and inflict death or great bodily harm upon the defendant. The instructions given by the cdurt present the theory of the prosecution, and state the law in relation thereto without error; but the defendant was entitled to have the law declared in reference to the facts^ which he contended the evidence reasonably tended to show, and if there was any evidence in the record upon which the instructions offered could properly be predicated, they should have been given. __.

The instructions asked and refused stated that:

“Driggers had the legal right to meet force with force, and if the deceased by any act then done manifested any intention to kill the defendant Driggers, or to inflict serious bodily injury upon him, then the defendant had the legal right to kill the deceased; and if you so find you will acquit the defendant.”

And, further, that if, while defendant was peacefully in his Own field, “the deceased came there and undertook to enter the field by tearing down the fence, and in a violent threatening manner reached for his.pistol, and with said pistol partly drawn in a threatening manner undertook to enter the field where defendant was, and that defendant believed, as a reasonable man, that deceased intended to kill him or do him great bodily injury, and, acting under the influence of said belief, whilst deceased was so endeavoring to enter the field, defendant killed him (deceased), the killing would be justifiable.” We believe this instruction, taken in conjunction with the elaborate and correct statement of the law of self-defense, correctly stated the rule, which defendant was entitled to have declared.

As above stated, exception was reserved to but one instruction, given by the court, which was one on mutual combat, and is as follows-:

“If you should believe from the evidence that the defendant B. F. Driggers was informed and believed that the deceased and one Tom Kelley had taken possession of a certain stock field the day previous to the killing, which stock field was also claimed by the defendant, and the defendant was informed and believed that the said Kelley and the deceased, or either of them, would be at the field in question on the morning of the killing, and that the man Kelley or the deceased had made threats -against the life of this defendant, and that the defendant believed that Kelley and the deceased and others would be at the field in question, having in their possession deadly weapons, as mentioned heretofore, and you further believe that the defendant, knowing all these things, voluntarily organized or assisted in organizing a company of men, arming himself and such men with deadly weapons, guns, and revolvers loaded, and that such preparation was for the purpose of meeting the said Kelley and the said deceased in deadly conflict, and that the defendant proceeded to the place of the killing with said company and with said arms, and that at such time and place a conflict ensued with deadly weapons, and the deceased 'was killed, and the defendant participated in the shooting, then such conflict would be what is known tn law as a 'mutual combat.’ And if in such combat a party is killed, all parties, who knowingly and intentionally engaged in the conflict, are guilty, of murder.”

After the jury had retired and had been out about 20 hours, it returned back into the court, and presented to the court, the following question: “Your honor, does the charge of what is known as 'mutual combat’ cut out the right of self-defense?” The court, in answer to this inquiry, added to the instruction above quoted, after the words “guilty of murder,” the following language, “and cannot claim the right of self-defense if you can so find.”

This instruction was predicated upon the contention of the prosecution in this case. The expression “mutual combat” about as clearly conveys the meaning of what is required to constitute it as any definition could. It means, in different language, though probably not more clear, an agreement or meeting of minds between two parties to fight, whether with or without arms. It means a coming together, with a mutually understood purpose for a violent contest. The government took the position that the evidence in this case established that Driggers and his party knew that Brady and his party were coming to the field armed, for the purpose of driving cattle in on this field and' taking possession thereof at all hazards. That they knew, or had ieasonable ground to believe, that Driggers and his party would be armed, with the purpose and intention, as declared to Brady by Goff on the day before, of killing him if they carried out this purpose. That Driggers and Goff gathered together men, arms, and ammunition for the purpose of using them in preventing these things on,the part of Brady, thereby, through these acts, creating the agreement to fight, and in view of this claim which, it must be conceded may be said to find reasonable support in the evidence, in our judgment the instruction given was not erroneous.

Counsel for defendant in their briefs inveigh against it most vigorously, denominating it “a fiery and.fierce resume of the most strained construction of the evidence against the plaintiff in error, with many exaggerations to his detriment, which suggests many conclusions and deductions of which the evidence is wholly incapable.” While it is true the instruction improperly includes a revolver with the other weapons which defendant’s party had, yet it will be noted that this instruction in fact assumes nothing as proved or as true, but places upon the prosecution the very highest possible burden of proof in the case. It does not. assume, as is asserted, that Brady had possession of the field, but requires the jury to find from the evidence that Driggers was informed and believed that Brady had taken possession of the field, and requires proof that defendant was informed and believed that Kelley and the deceased would be at the field in question on the morning of the killing, having in their possession deadly weapons, and further requiring the jury to find and believe that defendant, knowing of these things, voluntarily organized a company of men, and armed them “for the purpose of meeting said Kelley and the said deceased in deadly conflict.” If this fact was not proved by the evidence, then the law of mutual combat did not apply, and the instruction fell with it. But to find this the jury were compelled to find against all of the evidence by defendant on this point, and to find that the extreme contention of the prosecution was true. We do not see that the defendant could complain of this.

This instruction placed a heavy burden upon the prosecution, and to our mind in fact, instead of being adverse to the defendant, was really favorable to him. Of course, in passing on this instruction we do not presume to say that the evidence in this case established mutual combat. All that we hold is that there was evidence in the case sufficient, under the claims of the prosecution upon which to predicate this instruction, and under it the government was entitled to have the law relating thereto declared. It is strenuously urged that it should have contained a saving clause, providing for the contingency of defendant's withdrawal from the coming fray. There is no question on the- law on the subject, for the defendant, even though he went to the field for the purpose of engaging in a mutual combat, if he, in good faith, withdrew, and sought to avoid the difficulty before the fatal moment, and if, while in this attitude, the -deceased himself brought about, by his acts, a condition wherein the life of the defendant was endangered, or where he in good faith believed it was, then the right of self-defense would exist in him, and he would have the right to defend his life as against the deceased, notwithstanding his previous intentions to engage in a combat. But did he withdraw ? Counsel urge and insist that, when defendant sent word to Brady not to come there, he could not turn the cattle in; that this amounted to a withdrawal. We cannot consent to this. It seems to us that it was an effort, or an invitation at least, to induce Brady and his party to withdraw, not a withdrawal of Driggers. He remained where he was, with his gun and his party, and awaited the arrivel of the deceased, who, with his party, came on, and the conflict ensued.

We believe we have now covered practically all of the propositions urged in this court which will be likely to again arise in a new trial hereof, and we believe that a trial, conducted along the lines and within the limitation herein prescribed, will safeguard the rights of both the state and the defendant. The decision is accordingly reversed, and the case remanded to the district court of Garvin county, with instructions to grant the defendant a new trial.

Hayes, Kane, and Turner, JJ., concur; Williams, C. J., disqualified.


source: Caselaw Access Project

author: Dunn, J

license: Public Domain

text:
    Rutherford v. United States.
    No. 843,
    Ind. T.
    Opinion Filed May 16, 1908.
    (95 Pac. 753.)
    TRIAL — Instructions—Circumstantial Evidence. Where, in a criminal case, circumstantial evidence solely is relied on for a conviction, it is error for the trial court to fail and refuse to instruct on the law applicable thereto when the defendant requests it.
    (Syllabus by the Court.)

      Error from the United States Court for the Central District of the Indian Territory, at Atoka; Thomas C. Humphrey, Judge.

    Emmett Rutherford was convicted of grand larceny, and appeals.
    Reversed.
    On the 14th day of November, 1905, the grand jury for the United States Court in Indian Territory, Central District, sitting at Durant, returned its indictment into open court charging Emmett Rutherford and Charles Jones with having on the 12th day of June, 1905, within that jurisdiction; committed the crime of grand larceny of certain saddles and harness belonging to E. R. Benson of the value of $62. Jones fled and was not caught. The defendant, Rutherford, on arraignment, pleaded not guilty.
    The evidence connecting Rutherford with the offense was entirely circumstantial. The facts are briefly as follows: Benson, the prosecuting witness, lived on a farm near the little town of Utica. On the night of the 12th of June, 1905, there' was taken from his barn and harness house the goods mentioned in the indictment. He went to town the next morning, secured the services of one Dobbs, who, on going to the place where Rutherford lived and where two Jones brothers were stopping, found a borrowed buggy in the yard in which was a whip, part of the goods which had been stolen from Benson. On going into the house and calling for the defendant, who lived there, he, being upstairs, came down, and observing Dobbs, ran back again. Dobbs, having no warrant for his arrest, went to town to procure it, and coming back, found that the Jones boys, who had been there when he first went to the place Were gone, and after a search the defendant was found concealed or partially concealed about half a mile from his home. Tracks of two of the parties led toward the place where the stolen property was afterwards found. The searching party was led to the place of its concealment, which was about 3J2 miles from defendant’s home, by the defendant, and while he did not take the stand, it developed from cross-examination of members of the searching party that they, were informed by him that the Jones boys had told where the property was located, and in this manner he was able to disclose it.
    The case was tried to a jury, which returned a verdict finding the defendant guilty as charged, and the court sentenced him to serve two years in the United States penitentiary. Motion for new trial was filed and overruled, and the case was taken by writ of error to the United States Court of Appeals for the Indian Territory at South McAlester, and was pending there on the passing of that court with the organization of the state of Oklahoma, and is before us by virtue of the terms of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 267).

      Hatchett & Ferguson, for appellant.

      Fielding Lewis and W. C. Reeves, Assistants Attorney General, for the State. '
   Dunn, J

(after stating the facts as above). Defendant requested the court to give the following instruction:

“The jury are instructed that if in this case they can reconcile the circumstances tending to show defendant’s guilt, if any; reasonably with the fact of the innocence of defendant, then it is your duty to acquit him.”

In addition to this, on the refusal of this instruction, counsel for the defendant again urged the court to charge the law on circumstantial evidence. The instruction which was presented and the specific request were both refused by the court and error which is confessed by the Attorney General, is assigned therefor. The instruction asked for, or one governing the proposition involved, should have been given, and it was error for the court to refuse it. The Annotated Statutes of Indian Territory for 1899, § 1600, provides: “When the evidence is concluded, the court shall, on motion of either party, instruct the fury on the law applicable to the case” — and the authorities all hold, and without dissent, that where circumstantial evidence is relied upon for conviction this necessitates the court on the trial, when requested, to give the law applicable thereto in its instructions to the jury, and a failure to do so is error. 12 Cyc. 633; State v. Cohen, 108 Iowa, 208, 78 N. W. 857, 75 Am. St. Rep. 213; Hamilton v. State, 96 Ga. 301, 22 S. E. 528; Wantland v. State, 145 Ind. 38, 43 N. E. 931; Gablick v. People, 40 Mich. 292; Territory v. Lermo, 8 N. M. 566, 46 Pac. 16; 1 Greenleaf on Evidence, § 34; People v. Scott, 10 Utah, 217, 37 Pac. 335.

The rule as annunciated in Cyc. supra, is as follows:

“Where the prosecution relies solely upon circumstantial evidence, the court must always instruct upon the nature of circumstantial evidence. Such evidence should be expressly defined, and the rules governing its effect concisely stated.”

In discussing the law of presumptive evidence Mr. Greenleaf, in the section cited above, thus states the reasons of the propriety and righteousness of such instruction:

“Thus, as men do not generally violate the Penal Code, the law presumes every man innocent; but some men do transgress it. and therefore evidence is received to repel this presumption. This legal persumption of innocence is to be regarded by the jury in every case as matter of evidence, to the benefit of which the party is entitled. And where a criminal charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.”

In commenting on the refusal of an instruction requested by a defendant on circumstantial evidence in a Michigan case, Gablick v. People, supra, Mr. Justice Cooley, who was at that time a member of the court, says:

“We think the plaintiff in error was entitled to the instruction requested. It is perfectly true that the jury must judge of the. proper weight of the evidence; but when evidence is laid before them which only indirectly tends to raise an inference of guilt, and the importance of which must depend altogether upon circumstances, it is the right of the respondent to have the jury instructed how these circumstances bear upon the presumption of guilt. Possession of stolen property, if immediately subsequent to the larceny, may sometimes be almost conclusive of guilt (see People v. Walker, 38 Mich. 156) ; but the presumption weakens with the time that has elapsed, and may scarcely arise at all if others besides the accused have had equal access with himself to the place where it is discovered. A jury may or may not attach importance to these circumstances; but as the law permits the inference of guilt to be drawn, under some circumstances, and not under others, the jury should have' some instruction how to deal with these circumstances when they are placed before them.”

The compiled laws of Utah relating to instructions to juries are, in effect, substantially the same as those of Indian Territory, and in the case of People v. Scott, supra, it appears that the evidence on which it was sought to convict the defendant was circumstantial, and that defendant offered an instruction on this point, which was denied by the court, and the Supreme Court in that case held that, “where the testimony in a criminal case is entirely circumstantial, it is the duty of the court to charge upon the law of the subject, though the request offered by defendant on this subject was erroneous”; this being based upon the proposition that, although the instruction may not have been strictly formal, it at least amounted to a request or a motion, the denial of which was error.

The danger in cases where circumstantial evidence is entirely relied upon for conviction is that jurors being brought into court and impaneled for the purpose of determining the guilt or innocence of the defendant, and the court admitting the circumstances as evidence against the defendant, unless warned in some manner might be inclined to believe that absolute proof of the circumstances would be conclusive proof of the crime, and their attention would be exclusively directed to the evidence which established the incriminating circumstances, instead of weighing and judging whether or not the incriminating circumstances proven established the ultimate fact and proved beyond a reasonable doubt that defendant was the guilty party.

There are other assignments of error, urged, practically all of which relate to alleged erroneous instructions, and, as the same questions will probably not arise in a further trial hereof, there will be no value in the discussion thereof.

The judgment of the trial court is accordingly reversed and set aside, and the defendant granted a new trial.

All the Justices concur.


author: Turner, J.

text:
    Gibbons v. Territory.
    Nos. 2076 and 2103,
    Okla. T.
    Opinion Filed June 22, 1908.
    (96 Pac. 466.)
    TRIAL — Instructions—Reasonable Doubt. The trial court- erred in instructing the jury that: “By the term ‘reasonable doubt,’ as used in these instructions, is meant a doubt that has a reason for it. It is a doubt that you can give a reason for” — and the same is cause for reversal of the judgment.
    (Syllabus by the Court.)

      Error from District Court, Caddo County; Frank E. Gillette, Judge.

    Thomas Gibbons was convicted of murder, and brings error.
    Reversed.
    At the November term, 1905, of the district court for the Seventh judicial district of the territory of Oklahoma, at Anadarko, Thomas Gibbons, plaintiff in error, defendant below, together with one M. C. Reddington, were jointly indicted for the murder of one T, C. Renfro, by shooting, alleged to have been committed in the county of Caddo on July 13th of that year. On November 27, 1905, defendant was arranged, pleaded not guilty, asked for and was .granted-a severance, was tried by a jury, found guilty, and was sentenced to imprisonment for life, from which judgment and sentence he appealed to the Supreme Court of the territory of Oklahoma, and the case is now before us, as successoi of that court, for review.

      P. H. Cullen, for plaintiff in error.

      W. O. Cromwell, Atty. Gen., for the Territory.
   Turner, J.

(after stating the facts as above). The evidence discloses that defendant was director of school district No. 115 in said county, and had been some time prior to the homicide, and that M. C. Reddington, jointly indicted with him, had been elected clerk and had resigned. On August 16, 1904, J. E. Beard, “as treasurer of said district, called a meeting of the .voters thereof for the purpose of electing a clerk to succeed Reddington. On August 26, 1904, at the meeting for that purpose, the deceased, Renfro, was elected clerk, and Reddington filed- his resignation as such, and on November 16, 1904, turned the books over to him. On May 31, 1905, pursuant to a notice given by deceased, Renfro, as district clerk, for an election of officers for that district, defend-ant was elected for three years, M. C. Reddington clerk for an unexpired term of two years, and M. O. Nation treasurer for an unexpired term of one year. On the same day, Reddington duly qualified as such, and on June 13, 1905,’together with Gibbons as director and Nation as treasurer, duly filed' their acceptance of office with the superintendent of public instruction of Caddo county, as required by law. A short time thereafter, a report was filed with the county superintendent of Caddo County by deceased, Renfro, as clerk, in which he certified that at the schoil election held. May 31, 1905, in school district No. 115, the following persons were elected to the respective offices therein set forth, viz: Thomas Gibbons, director; T. C. Renfro, clerk; and J. E. Beard, treasurer. That shortly thereafter Reddington, as clerk of said district, made a demand on the deceased, Renfro, for the books and records pertaining to said office, which he refused to surrender.

After securing the advice of the county attorney, defendant and Nation, as directors of school district No. 115, brought suit in replevin before one Dillingham, a justice of the peace, to re ■ cover said books; but the same was for some reason dismissed by the justice. On July 10, 1905, defendant, as dircetor of said district, caused another suit in replevin to be brought, entitled “School District No. 115 v. Thurston Renfro,” before T. C. Britton, a justice of the peace, to recover from deceased the-books and records aforesaid, and owing to the fact that there was no constable in that township, and failing to obtain the services of H. W. Boulware, a deputy sheriff, the justice of the peace on his own motion appointed Plowman as special constable to serve the process. He was a stranger to Renfro and slightly acquainted with the defendant, resided in another school district, was a man of delicate health, and of very defective eyesight. On the evening of the day the process was issued, Plowman went to Renfro’s house to serve the papers, taking Nation along to identify the books and papers mentioned in the writ; but Renfro was not at home, and the process was not served at that time.

On the morning of the 12th, as Nation could not go on ac-. count of sickness, Gibbons accompanied Plowman in the service of the process in order to identify the property sought to be replevined. ' On exhibiting the process to Renfro, he declared the same, to be improper, and refused to give up the property, and wheeled and went into the house, saying that he regarded any man trying to take possession of it as hunting trouble, and that “he wordd be damned sure to get it,” at which Plowman and defendant rode off. That same day Plowman returned to the justice of the peace and sued out a writ charging Renfro with resisting him as an officer in the service of process and refusing to deliver the property sought to be replevined which was placed in his hands for service, returnable forthwith before said justice. Gibbons was present at that time, but did not advise the suing out of the writ, and was, without his seeking, appointed as a special deputy on Plowman’s suggestion to assist him in the service of the process. The next morning, Plowman, accompanied by Gibbons, armed with the process aforesaid, went to the home of the deceased, Renfro, to serve the same. As they rode up, they found him and one J. B. Berry, a neighbor, seated under a tree near the house. After exchanging friendly salutations, Plowman produced the writ of replevin, which was read to the deceased, There is considerable conflict in the evidence from this time on as to what actually occurred. Berry, the only eyewitness other than defendant, swore that Renfro agreed to give up the books. Gibbons swore that he declined to do so. Plowman dismounted, and together with Renfro, approached the east door of the house coming from the north; Berry following at a short distance. Defendant remained seated -on his horse. When within about eight feet of the door, something was said about a warrant, and Renfro, replied: “I will go with you.” About that time defendant ,dismounted and hitched his horse and slowly approached Plowman and Renfro. Renfro, seeing him coming, ordered him to keep out of the yard. Plowman said: “Tom Gibbons, I deputize you to search the house.” Renfro replied: “You cannot search the house without a search warrant.” Renfro’s manner was determined, and Plowman seemed very nervous. Renfro opened the east door and sprang into the house. There was a loaded rifle and a shotgun leaning against the west wall near the door and a 38 revolver, loaded, lying close by the table. Defendant and Plowman were standing at the end of a plank leading to the east door about eight feet away. Here the testimony conflicts. Berry said that when Renfro entered the east door he was standing neat the northeast corner of the house, when Plowman and defendant rushed abreast across his line of vision into the house, at w'hi.ch time the shooting commenced in the house. Defendant said that they did not enter the house, but that the firing was done by Renfro from the inside, shooting at them through the open east doorway. Both agree that Plowman jumped back and ran around the southeast corner of the house, which consisted of one room 14x16, with a door in the east and west sides and a window in the north and south ends; that Renfro, rifle in hand, went out the west door and rushed around the southwest corner of the house, where he met Plowman. There was a shot fired by Renfro, and Plowman fell dead, shot in the back, his pistol the only weapon he had, being found lying on the inside of his coat on the left side, which had been thrown back, indicating that it had been snapped once, but not fired. Here the testimony again conflicts. Berry says he was standing close to the northeast corner of the house, but could see diagonally through the door and through the window on the south side; that he thus saw Renfro south of the house, and heard the shot, but did not see him fire. He said: That when Plowman and Gibbons first rushed in the house, and the, firing took place, they both jumped back, and Plowman ran around the southeast, corner, where he was shot; thar Gibbons, after Plowman was shot, rushed back into the house, where he saw him and Renfro struggling; that he heard more shooting in the house, and started to leave the scene, when the shooting ceased, and Gibbons emerged from the house and hailed him after it was all over. Gibbons says: That, when Plowman- rushed around the house in one direction, he went around the house in the other direction; that he started for the west gate, and saw Renfro coming back from the shooting of Plowman around the southwest corner of the house, when he (Gibbons) jumped back and sought shelter behind the north end of the housé; that before he reached it Renfro fired at him, but missed and was upon him; that he had his pistol in hi's hand, and Renfro his rifle that they grappled, and a struggle ensued for the rifle to keep Renfro from shooting him. In the struggle, while they were near the west door, he shot Renfro twice in the breast. Renfro’s body was found in the house lying with his feet near the west door and his head a little north of east, near his bed with his rifle lying across his body the butt being upon the floor the muzzle resting against the bed, with a deep cut as though made with a blunt instrument across his forehead.

The theory of the prosecution was that a conspiracy existed between Reddington and Gibbons to kill or “fix” Renfro, that ill feeling had existed between them some time, and that the process sought to be served on Renfro was a subterfuge under cover of which Gibbons went to deceased’s house and killed him. The defense contended that the process was sued out and was sought to be served in good faith, that in its service deceased assaulted and killed Plowman without provocation, and that defendant killed Renfro in his own necessary self-defense while he was resisting iawful process.

Numerous errors were assigned -by defendant, but the ( nly one necessary for us to consider is that the court erred in charging the jury, over the objection and exception of defendant,. as follows:

“By the term ‘reasonable doubt,’ as used in these instructions, is meant a doubt that has a reason for it. It is a doubt that you can give a reason for. It is that state of the case which, after a full consideration of all the evidence, leaves your minds 'n : hat condition that you cannot say that you feel an abiding conviction of the guilt of the defendant. You should not go beyond the evidence to hunt for doubt or entertain doubt from mere caprice or conjecture. Such doubt should arise from a candid and impartial consideration of all the evidence and facts and circumstances presented upon the trial. If, upon sonsideration of all the evidence, doubt does so arise, and by reason of it you cannot say that you are satisfied to a moral certainty of the guilt of the defendant, you should return your verdict herein not guilty.”

This instruction, in almost identical language, was disapproved in Abbott v. Territory, 20 Okla. 119, 94 Pac. 179, and that it does not state the law can no longer be considered .in open question in this jurisdiction. This court, in that \case, speaking through its learned Chief Justice,-said: 857, 75, Am. St. Rep. 213, where it was held that: ‘An instruction defining a “reasonable doubt” as one that the jury are able to give a reason for is erroneous, as, in effect, placing the burden on defendant to furnish reasons for acquittal.’ And where it was further held that: ‘An instruction defining a “reasonable doubt” as one that the jury are able to give a reason for is erroneous, as requiring jurors to give reasons for their conclusions.’ And in this case the court, speaking by Mr. Justice Ladd, used the following language: ‘Nor can we approve the fifth instruction as a safe definition of “reasonable doubt.” By a “reasonable doubt,” as herein instructed is meant a doubt such as reasonable man might entertain, after a careful review of all the evidence in the case, as to the guilt of the defehdant. In a legal sense, a reasonable doubt is one which has some reason _for its basis. It does not mean a doubt from mere caprice or groundless conjecture. A reasonable doubt is such a doubt as the jury are able to give a reason for. The last clause is one to which exception is taken. Who shall determine whether able to give a reason, and what kind of a reason will suffice? To whom shall it be given? One juror may declare he does not believe, the defendant guilty. Under this instruction, another may demand his reason for so thinking. Indeed, each juror may in turn be held by his fellows^to give his reasons for acquitting, though the better rule would seem to require these for convicting. The burden of finding reasons for not finding guilt established is thus cast on the defendant; whereas, it is on the state to make out a case excluding all reasonable doubt. Besides, jurors are not bound to give reasons to others for the conclusion reached.’ In Siberry v. State, 133 Ind. 677, 33 N. E. 681, the Supreme Court of Indiana held that: ‘It is erroneous to instruct the jury that a “reasonable doubt is such a doubt as the jury are able to give a reason for.” ’ In State v. Sauer, 38 Minn. 439, 38 N. W. 355, Mr. Justice Mitchell, who delivered the opinion of the court says: ‘The most serious objection to it is that it is liable to be understood as meaning a doubt for which a person could express a reason in words. A person may, after a consideration and comparision of all the evidence, feel a reasonable doubt as to the guilt of a defendant, and yet find.it difficult to state the reason for the doubt.’ In Owen v. United States, 130 Fed. 279, 64 C. C. A. 525, an instruction in the following language: ‘A reasonable ground of doubt is one which is reasonable from the evidence. It must be a ground of doubt for which a reason can be given, which reason must be based upon the evidence or want of evidence’ — -was disapproved.”

“This same question has been before the Supreme Court of Iowa. An instruction in almost the identical language was disapproved in the case of State v. Cohen, 108 Iowa, 208, 78 N. W.

We are therefore of the opinion that the court erred in giving the instruction complained of,' and for that reason the case should be reversed. It is not necessary to discuss the questions raised in the record on defendant’s application for a new trial on account of newly discovered evidence.

The judgment of the trial court is reversed, and this cause remanded, with instructions to grant the defendant a new trial.

All the Justices concur.


author: Dunn, J.

text:
    Bruner v. United States.
    No. 792,
    Ind. T.
    Opinion Filed June 23, 1908.
    (96 Pac. 597.)
    1. EVIDENCE — Overtures to Witnesses. To admit in evidence overtures to purchase witnesses to testify in defendant’s behalf, where it is not shown that defendant was responsible therefor, is error.
    2. SAME — Evidence of Independent Assault — Purpose — Instructions. Where, in a homicide case, evidence is admitted of an independent assault hade by a third party unknown to defendant upon deceased, by reason of which deceased was being taken home and killed on his way by defendant, the purpose and effect of such evidence should be set out by the court in an instruction limiting it in its operation to an explanation of the presence of the deceased at the place of the homicide.
    (Syllabus by the Court.)

      Error from the _ United States Court for the Western District of the Indian Territory, at Okmulgee; Louis Sulsbacher Trial Judge.

    Louis Bruner was convicted of manslaughter, and he brings error.
    Reversed.

      Joe S. Eaton and H. E. P. Stanford, for plaintiff in error.

      William M. Mellette, U. S. Atty.

   Dunn, J.

Lewis Bruner was convicted at the February, 1906, term of the United States Court for the Western District of the Indian Territory at Okmulgee of the crime of manslaughter, from which judgment and sentence thereon he appealed to the United States Court of Appeals of Indian Territory, and the case is before this court by virtue of the terms of the enabling act.

At the close of the case, on the part of the government in rebuttal. one Jessie McGee was offered as a witness against the defendant. Objection was made to the reception of the testimony of this witness, for the reason that her name did not appear upon the indictment, and, although- the rule had been invoked for the exclusion of the witness, she had been in the courtroom during the taking of the testimony. This objection was overruled, and the witness was restricted in her evidence to such only as was not covered by the testimony of any witness who had theretofore testified in the case.' She testified that John Bruner, the defendant’s brother, had offered to pay her $25 if she would testify in defendant’s behalf. There was no showing made as to what she was expected to testify to, but merely that it was to be in the interest of the defendant. In a conference which took place between the counsel and the court on the admission of this.evidence, counsel for the government represented that the defendant would be connected with the offer. On its conclusion, counsel for the defendant moved to strike it out, for the reason that it was not shown that the defendant was connected with the making of the offer, and that it was on this condition that evidence was admitted. The court overruled the motion to strike out the evidence, and this is assigned as one of the errors. There is no pretense that the evidence was offered for the purpose of impeaching John Bruner who was a witness for the defendant, and no authority is cited by counsel for the government tending to support or sustain its admissibility. That it was incompetent and irrelevant we think there can be no question, nor can we say that it was not prejudicial to the rights of the defendant. If the defendant could have been shown to have been connected with it, to have either made the offer himself or to have prompted his brother to make it, or even had it been shown that he was making a promiscuous offer for witnesses to testify in his behalf, the evidence would have been admissible against him because of these things, but the authorities are practically without exception that such evidence is inadmissible and that its reception by the court was error. Cecil v. Territory, 16 Okla. 197, 82 Pac. 654; Hardtke v. State, 67 Wis. 552, 30 N. W. 723; Newton v. State, 41 Tex. Cr R. 610, 56 S. W. 64; Nalley v. State, 28 Tex. App. 387, 13 S. W. 670; Rushing v State, 25 Tex. App. 607, 8 S. W. 807; Barbee v. State, 23 Tex. App. 199, 4 S. W. 584; Favors v. State, 20 Tex. App. 155.

The case of Cecil v. Territory, supra, was one wherein the defendant was charged with the crime of rape. During the trial of the case the father of the defendant was called as a witness for the territory, and over the objection of the defendant, was required to detail the particulars of certain negotiations which he had conducted with the parents of the girl, having for their object a settlement or compromise of the criminal proceedings about to be brought against his son. It was not shown that the son knew of these negotiations. Justice Gillette, speaking for the court, said:

“ ‘The admission of the defendant, particularly an oijer on his part to pay a certain sum of money to the prosecutrix or her mother, to settle the matter, are always relevant against him.’ Underhill on Criminal Evidence, §.418; Hardtke v. State, 67 Wis. 552, 30 N. W. 723; McMath v. State, 55 Ga. 303. As the evidence fails to in any way connect the defendant with the negotiations of the father, it was clearly hearsay, incompetent, and prejudicial, and its reception was material error.”

In the case of Hardtke v. State, supra, the prosecutrix was allowed to testify over the objection of the defendant’s counsel that a certain party had told her what to say in reference to her injury. This was assumed to have been at the instance of the defendant when there was no evidence to support it, and the court in the syllabus holds: “The prosecutrix should not be permitted to testify what a third person, not shown to have been acting for the defendant or with his knowledge, told her to say about the injury.” And this is one of the grounds on which the case was reversed.

The case of Newton v. State, supra, was one similar to the case at bar, wherein an offer was made to a witness by a third party to testify in defendant’s behalf. It was shown that the defendant was not present when this offer was made, and that he knew nothing about it. The court in the consideration of the same says: “It is well settled, by a long line of decisions in this state, that overtures to purchase witnesses, and matters qf that sort, made by others than defendant, without his knowledge and consent, cannot be used against him upon his trial.” And the case was reversed on account of this error.

Nor, as we have above said, are we able to say that this evidence was not prejudicial to the defendant. He was entitled to have the issue of his guilt or innocence presented to the jury upon the relevant and competent evidence properly applicable thereto, and he was entitled to be relieved of the damaging cloud which evidence of this character would throw over his entire case unless he was responsible for it. The illimitable scope of undeserved damage the cause of a defendant might suffer through friends or enemies should evidence of this character be admissible is readily seen; and where in a case such evidence appears, and it is not clearly shown that the defendant is responsible for it, and proper exceptions are saved, a conviction will not be sustained. It is a general rule, finding sanction in many authorities, that, “where testimony is erroneously received which may have influenced the court or jury in the findings or verdict, the error cannot be considered immaterial.” Such is the holding of the Supreme Court of the state of Kansas in the case of Gilleland v. Schuyler, 9 Kan. 569, which is cited approvingly by tha: court in ihe case of State v. Nolan, 48 Kan. 723, 29 Pac. 568, 30 Pac. 486, wherein Mr. Chief Justice Plorton. 'peaking for the Supreme Court of that state, and quoting from the case just cited, which was written by Mr. Justice Brewer, says:

•“It may be said that the testimony was immaterial, and that the error worked no substantial injury to the plaintiffs in error, because, first, there was sufficient testimony without this to support the findings. * * * If testimony is erroneously received which may have influenced the court or jury in the finding or ver-' diet, we cannot call the error immaterial. The findings or verdict must be based upon nothing but competent testimony before any presumption in favor of their correctness will arise in this court; for otherwise the court or jury may, disbelieving the witnesses who give competent testimony, reach their determination mainly or wholly on the incompetent evidence, and so a party obtain a judgment he is not in fact entitled to. The record must be clean, which, when passed upon by court or jury is sought to be sustained in this court because it has been so passed upon.”

For the error caused by the introduction'of this testimony, this cause must be reversed.

We will, however, notice one other objection made on the introduction of the evidence which would be likely to occur in the new hearing. There is but little controversy between the evidence for the state and that tor the defendant. The homicide took place at a picnic. The defendant being called a vile name by one of the women assaulted her. He, in turn, was set upon by her brothers and the deceased. On escaping from them, he fled, but did not leave the grounds. The deceased seated himself upon a log not far from the scene of the first difficulty, and while sitting there, was assaulted by the half-brother of the defendant, who immediately fled. The deceased then immediatly mounted a horse, and was riding off of the grounds, when, overtaking the defendant, the defendant turned and fired the shot from which he died. Evidence of this assault was admitted, which is assigned as error. There is not disclosed by the record the theory under which it was heard; but, as it is not shown that defendant connived at or knew aught of it, its operation should be confined simply to a showing of why the deceased was on the horse and in explanation of his presence at the scene of the shooting for the purpose of rebutting the inference that he was still pursuing defendant, and an instruction should be given the jury limiting the effect of this evidence to this one end.

Numerous other errors are assigned in the brief of plaintiff in error, some of which relate to the order and manner of the reception of the evidence, but most of them concern the instructions given by the court. These we will not notice as it is not likely that the same errors will be made in a new trial of this cause. The issue is a simple one on an indictment for murder and no complications ought to arise on a new trial in the instructions, and we believe we have settled the uncertainties of the evidence.

The judgment of conviction is set aside, and a new trial is granted defendant.

All the justices concur.