would tend to criminate him, or would constitute a necessary link in the chain of testimony sufficient to convict him of a criminal offense; and therefore, on the trial of a common prostitute as a vagrant, a witness can not be required to answer whether he has had sexual intercourse with her. Ex parte Boscowitz, 463.
19. Evidence as to former difficulty and threats. As illustrating the con- duct and motive of the defendant, it is permissible for the prose- cution to prove the fact of a former difficulty between him and the person assaulted, and the threats accompanying it, but not the particulars of that difficulty. Lawrence v. State, 424.
20. Acts admissible as part of res geste. The deceased, a deputy sher- iff, having been killed by the defendant, whom he was attempt- ing to arrest, a person who accompanied the officer may testify that the defendant, immediately after shooting the deceased, attempted to shoot him also, and knocked him down with his gun; these acts constituting a part of the res gesta. Seams v. State, 410.
21. Testimony of witness (or party) as to intention. The defendant tes- tifying for himself under an indictment for murder, can not be allowed to state "why he shot the deceased." Ib.
22. Pending prosecution as evidence. On a trial for murder, the prose- cution having proved threats made by the defendant against the deceased, in connection with a charge of burglary and larceny preferred against the former, or growing out of it, the deceased being one of the two witnesses before the grand jury, and his name being so marked on the indictment; the indictment in that case is admissible as evidence for the prosecution, but the merits or particulars of the charge can not be inquired into. Carden v. State, 417.
23. Flight of accused as evidence. The flight of the accused on the approach of an officer, a few days after the commission of the offense, is a criminative fact which may be proved against him; and his subsequent voluntary surrender, while it may weaken the force of the evidence, does not destroy its admissibility and relevancy. Ib.
24. Impeaching witness by proof of former statements on oath.-When preliminary examination before
the testimony of a witness, on a pre
magistrate, having been reduced to writing and subscribed, is produced in court on the trial, he can not be questioned as to de- tached portions of it, without showing or reading to him the en- tire testimony. Ib.
given, there was no injury from the question. The testimony as to her personal condition may have been pertinent and compe- tent. Myers v Staté, 11.
28. Reasonable doubt; charge. A charge asserting, in reference to proving guilt beyond a reasonable doubt, that it is not required to make proof pro "by an eye witness or to positive absolute math- ematical certainty;" and that "if from the evidence the jury be- lieve it is possible, or that it may be, or perhaps the defendant is not guilty, this degree of uncertainty does not amount to a reas- onable doubt;" though involved and argumentative, asserts cor- rect legal propositions. Lang v. State, 1.
34. Homicide of officer making arrest. The killing of an officer, in order to escape a lawful arrest, is without excuse or palliation. Seams v. State, 410.
35. Charges as to degree of offense. It is for the jury to say, in a case of homicide, whether the defendant is guilty of murder in the first degree, or some lower grade of homicide; and a charge re- quested in this case, which instructs them that, "if they believe the evidence, they should not convict him of murder in the first degree," is properly refused. Ib.
36. Constituents of offense. An intent to murder being an essential ele- ment of the offense, the issue necessarily involves the inquiry whether, if death had ensued, the killing would have been mur- der; but it is immaterial whether it would be murder in the first or second degree Lawrence v. State, 424.
37. Same; charge as to -To complete the offense, a wrongful act, amounting to an assault, and an intent to murder, must concur, and where there is any conflict or uncertainty in the evidence as to the commission of the assault, a charge instructing the jury that it is the intent which constitutes the crime, would have a tendency to mislead; but the assault being clearly proved and not disputed, such instruction could not mislead. Ib.
38. Manslaughter in first degree. An intention to take life is not a ne- cessary ingredient of manslaughter, even in the first degree. White v. State, 421.
39. Homicide by careless act. -Gross carelessness, even in the per- formance of a lawful act, causing an injury which results in death, is at least manslaughter. Ib.
40. Same; case at bar. The deceased having been thrown from a handear, on which he was riding with the defendant and others, and which was stopped suddenly as the defendant leaped from it, the evidence tending to show that he put his foot on the brake as he did so; a charge asked, instructing the jury that, if the defendant, "although he may have stepped on the brake in jump- ing from the car, did not know the result of stopping the car suddenly, then he would not be guilty," is properly refused. Ib.
41. Charge as to duty to retreat in case of homicide. A charge given, which asserts that "if the deceased was the assailant, the party assailed must retreat, unless retreat will endanger his safety, and must refrain from taking life, if there is any other reasonable mode of escape," asserts a correct proposition. Morrison v. State, 405.
42. Drunkenness as excuse, or in mitigation of killing. -Intoxication may reduce a killing to manslaughter, when it renders the per- son incapable of forming or entertaining the specific intent which is an essential ingredient of murder; but a charge requested, which instructs the jury that, if the defendant, when he fired the fatal shot, "was intoxicated, or under the influence of liquor, they may look to this fact in determining whether he acted in the passion and heat of blood, excited by the provocation of the blow he had received, or from malice,” does not come within this prin- ciple, and is properly refused. Ib. 405.
INDICTMENT. See RAPE, infra, 55.
43. Sufficiency ncy of indictment; averment of means in alternative. -In an indictment for murder, it is permissible to allege in the alterna- tive, that the offense was committed by different means (Code of 1886, § 4383); as, "by striking him in the head with some hard substance unknown to the grand jury, or by choking him with a piece of fuse or cord." Wilson v. State, 426.
44. Amendment of indictment; misnomer.-An indictment can be amend-
ed by correcting a misnomer, only "with the consent of the de- fendant." (Code of 1886, § 4389); and this consent must be affirmatively shown by the record, and will not be inferred from mere silence, or failure to dissent. Shiff v. State, 454.
45. Variance in description of article stolen.--Under an indictment for the larceny of a "gold watch,” a conviction may be had on proof of the larceny of a watch only ten carats fine, which is called a gold watch by the public generally, though it is not so designated by jewellers. Pfister v. State, 432.
46. Ownership of stolen property; variance.--When the indictment alleges the larceny of property belonging to the husband, and the proof shows that it belongs to the wife's statutory estate, there is no fatal variance, since the ownership may be laid in either, unless the Code of 1886 has changed the law in this particular; and if it has effected a change (which is not decided), this court will presume, in favor of the ruling of the lower court, that the offense was committed before the new law became operative, un- less the record repels the presumption. Robinson v. State, 434.
47. Form of indictment and proof,-An indictment which charges that the defendant "sold vinous or spirituous liquors without a license, and contrary to law," being in the form prescribed in the stat ute (Code of 1886, § 4037), is sufficient, and under it any viola- tion of a special or local prohibition law may be proved. Bogan v. State, 449.
48. Some; exception in favor of physicians and druggists--If the de- fendant was a physician or druggist, and lawfully disposed of liquor under the restrictions allowed by the local law, this was matter of defense, and it was not necessary that the indictment should negative it. Ib. 449
49. Sufficiency of indictment.--An indictment for selling or giving liquor to a minor, under the Code of 1876 (§ 4205), was required to negative the requisition of a physician for medical purposes; but, under the act approved February 26th, 1881, it was required to negative also the consent of the parent, guardian, or person having the management and control of the minor. Page v. State, 446.
LARCENY. See INDICTMENT, infra, 46; SELLING MORTGAGED PROPERTY, infra, 59.
50. Special venire in capital case. When an order for the trial of a capital felony is made during one week, and the trial is set for a day of the next week, thirty persons being drawn by the court as special jurors, under the provisions of the law approved Feb- ruary 28th, 1887, (§ 11); these persons, together with "the re- gular jurors drawn and summoned for the next week," constitute the special venire. Morrison v. State, 405.
51. Organization of petit jury. On the organization of a special jury in a capital case, some of the names drawn and summoned be- ing left out of the box (or hat) by inadvertence, and the mistake not discovered until all the names in it had been drawn out with- out completing the jury; the court may properly refuse to have talesmen summoned, until all the omitted names, being placed in the box (or hat), have been drawn out and passed on; and the jury being still incomplete, the deficiency may then be supplied by talesmen. Ib. 405.
52. Same; order for talesmen. Under the uniform practice of the lower
courts, an order for the summons of talesmen to complete a petit jury is not required to be entered of record, but may be given orally; and this court sanctions that practice. Ib. 405.
LIQUOR LAWS. See CONSTITUTIONAL LAW, 7; INDICTMENT, infra, 47, 48, 49.
53. Constituents of offense.--A conviction may be had for selling or giving liquor to a minor (Code of 1876, § 4205; Code of 1886, § 4038), on proof that the minor and his uncle came into the de- fendant's saloon, and the uncle called for two drinks; that the defendant set out a bottle of whisky, with two o glasses; drinks were poured out, for which the uncle paid, and gave one of them to the minor, who thereupon drank it in the defendant's presence. On these facts, although the defendant may not (or could not) have known when he furnished the liquor, that one of the drinks was intended for the minor, he must reasonably have understood that such was the intention, and that was sufficient to charge him with notice. Page v. State, 446.
PEDDLERS AND ITINERANT DEALERS.
54. Revenue license required of peddlers and itinerant dealers.-A ped- dler's license, issued to a partnership of which the defendant is a member, is full protection to him for peddling anywhere in the county, but not for carrying on the business of a transient or itinerant dealer in goods, wares and merchandise. (Code of 1886, § 629, subd. 29, 34); and being indicted for carrying on that business without a license the prosecution may prove that he had in person made sales in other counties, and had gone from one county to another dealing in goods; and while there can be no conviction without proof of some act done, in prosecution of the business, in the county in which the indictment was found, it is not necessary to prove sales in more than one place therein. Shiff v. State, 454.
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