the jury to the respondents. Oregonian Ry. Co. v. Hill, 9 Or. 377. It is not necessary, however, to disturb the verdict. The error lies in the form of the judgment alone. The judgment must be reversed, with directions to the court below to proceed upon the verdict in conformity with the views herein expressed.

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The hearsay evidence, which was improperly admitted, being material to the issues, is ground for reversal of the judgment. Moreover, no relation between the informant and the defendant is shown to justify the admission of his declarations against the defendant, and we cannot supply the admission.

Geo. K. Sheil and Bonham & Ramsey, for appellant.

J. A. Stratton, for respondent.

WATSON, C. J. The respondent, Jones, brought this action in the court below to recover the amount of an alleged overpayment from the appellant. The respondent and one George Powell undertook to grind some wheat furnished by the appellant, and market the flour made therefrom, and account to him for the proceeds. It is alleged in the complaint that they advanced the respondent a sum greater by the amount for which judgment is asked than was received from the proceeds of the flour. The respondent has succeeded to Powell's interest in the claim. The only issue made by the pleadings is as to the amount for which the flour was sold.

Upon the trial, one Church, a witness for the respondent, testified, without being asked by the party calling him, that the flour shipped by the respondent was damaged on the way to Liverpool, and that he obtained his information on this subject from the agent of Sibson, Church & Co., who acted for the respondent and Powell at Liverpool, and sold the flour there, and that in consequence of such damage the flour sold for less price. Appellant, by his counsel, asked the court to exclude the testimony from the consideration of the jury as being incompetent, which was refused, and exception taken. This evidence tended to prove the respondent's side of the issue. He claimed to have sold for the less price, and the appellant contended that he had sold it for a greater amount. The evidence was therefore material, and, if improperly admitted, it is ground for reversal. We can perceive no ground upon which its admissibility can be successfully maintained. No such relation between the appellant and the agent of Sibson, Church & Co. is shown as would justify the ad

mission of his declarations against the appellant, nor will any presumption in favor of the regularity of the proceedings in the lower court, which we are permitted to indulge in, supply the omission. The evidence given by Church was mere hearsay, and should have been excluded. The failure to do so was error on the part of the court below, affecting the substantial rights of the appellant. The objections to the admission of the Exhibits A, B, and C are insufficient in the present state of the bill of exceptions to raise the points relied on to secure a reversal. But for the error in refusing to exclude the testimony of Church, the judgment is reversed and a new trial ordered.

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The complaint herein states no facts which, under section 10, act of 1878, would make the wife liable for the goods purchased as for family expenses, and the instruction to the jury not to find against her, unless the goods in question were sold to her, was proper.

Appeal from Multnomah county.

A. H. Tanner, for appellant.

Sears & McGinn, for respondent.

PER CURIAM. The complaint in this case charges the sale and delivery of goods, wares, and merchandise to the respondent at her special instance and request, and her promise to pay their reasonable value. The answer contains simply denials of the material allegations in the complaint. Some evidence tending to show that the articles, for the price of which the action was brought, were delivered partly on the order of her husband, Joseph Sherwin, since deceased, and were purchased for family use, was admitted on the trial without. objection. The appellant asked the court to instruct the jury, in effect, that the respondent would be liable in this action if such articles were for family use, although delivered on the order of her husband. The court refused to so instruct the jury, but directed them not to find a verdict against the respondent unless they found that the goods or some portion of them had been sold to her. The jury found for the respondent. The errors assigned arise upon the action of the court below with reference to these instructions.

This action is apparently founded upon section 9 of the act of 1878, which provides: "Contracts may be made by a wife, and liabilities incurred, and the same enforced by or against her to the same

extent and in the same manner as if she were unmarried." Sess. Laws 1878. Section 10 of the same act makes the property of both husband and wife chargeable with family expenses, but there is nothing in the complaint in the present action to indicate that it is the liability thus created by positive statute that is sought to be enforced. The complaint in this instance does not state the facts which would make the respondent liable under section 10 of this statute, and we cannot regard the action as founded upon it.

It is claimed, on behalf of the appellant, that the respondent was estopped from claiming the instruction given at her request, by her failure to object to the evidence tending to show a purchase for the family use, at the time it was offered. We think not. There was no issue to which it was applicable, as the pleadings stood, and no attempt was made by the appellant, so far as the record shows, to obtain leave to amend. It was still in the power of the court, upon a proper showing, to have allowed such an amendment. Civil Code, § 99. We think the course taken by the lower court, with reference to instructing the jury, was entirely proper. Rogers v. Newbury, 105 Mass. 553.

The judgment is affirmed.

(2 Idaho [Hasb.] 76)



Filed February 20, 1884.

On an appeal from the judgment only, the court cannot inquire whether the verdict is supported by the evidence. This can be done only upon an appeal from the order denying a new trial.

In case of a homicide committed by the defendant, where the fatal shot was fired while the deceased was retreating and after all danger from him was over and while defendant was pursuing him, then the defendant is guilty of murder or manslaughter, as the case may be.

An instruction as to the credit that should be given to a witness, and one that the same weight should be given to the testimony of defendant, when corroborated, as to that of any other witness, invades the province of the jury and is properly refused.

Where the defendant seeks to justify a homicide, on the ground that the killing was necessary to protect the person of his wife, evidence on the part of the prosecution tending to show the bad character of the woman alleged to be the wife of the defendant, and that she kept a house of prostitution, with a view of showing that the deceased was upon the premises for purposes other than felonious, is proper.

An instruction that if the jury believe from the evidence, beyond a reasonable doubt, that the defendant killed deceased on account of a desire for revenge for some real or imagined injury, then defendant is guilty of murder, is proper.

Where the deceased was slain while endeavoring to escape from the defendant, and had succeeded in wholly withdrawing, in good faith, from the vicinity of defendant and his house, and all danger to the person of defendant, to his habitation, or to any one residing therein, was over, then the Lilling can neither be justified, excused, or mitigated by declarations of defendant made to another person shortly before the homicide, and evidence thereof was properly refused.

Appeal from Alturas county, Second judicial district.

L. Vineyard, for appellant.

Jas. H. Hawley and T. D. Cahalan, Prosecuting Attorneys for Alturas and Ada counties, respectively, for respondent.

MORGAN, C. J. The defendant, George Pierson, was indicted, tried, and convicted at the October term, A. D. 1882, of the district court for Alturas county, for the murder of John T. Hall, at Vienna, in said county, on the twenty-fifth day of August, 1882. The case is brought to this court by an appeal from the judgment. In the argument of the case considerable time was occupied in the apparent effort to show that the verdict was contrary to the evidence. The court is unable to see any substantial objection to the verdict upon that ground. There is no occasion, however, to consider that branch of the argument. The appeal is taken from the judgment.

Section 465 of the Revised Laws, subd. 2, p. 432, provides that

the appeal to the supreme court from the district court shall be en questions of law alone. The only method whereby this court can review the evidence for the purpose of determining whether the verdict is sustained thereby, is through an appeal from the order of the court below denying a new trial upon that ground. As no such appeal is taken in the case at bar, we can only review the evidence so far as is necessary to determine the questions of law brought here by the appeal from the judgment.

The bill of exceptions alleges as error the refusal of the court to allow the declarations of the defendant to the deputy sheriff in endeavoring to procure the arrest of deceased for alleged offenses against the wife of defendant, made on the day of the homicide, and immediately preceding the same; and the ruling of the court in refusing to instruct the jury, at the request of the defendant, that if the jury believe, from the evidence, that the deceased approached the defendant's dwelling at the time of the fatal affray with the intent of committing a felony upon the person of the defendant, or upon the woman in the dwelling of defendant, whom he claims as his wife and who claims the protection cf the defendant, and an asylum in his house, and that the defendant did the killing in order to prevent such felony, then the killing was justifiable, and the jury should acquit. Also in giving the following instructions, to-wit:

"If you find from the evidence that the defendant was justified, under the rules of law given above, in firing the first shot, but that, after such shot had been fired by the defendant, the deceased, Hall, retreated, and all danger from him was over, and that, while deceased was still retreating and all danger from him being over, the defendant pursued him and fired upon him, thereby inflicting the mortal wound, then the defendant is guilty."

While the law recognizes the right of the husband to protect the person of his wife from assault or personal injury, even to the taking of the life of the assailant, still, before this plea can be invoked, it is incumbent upon the defendant to establish two precedent facts to the satisfaction of the jury, to-wit: (1) That the relation of husband and wife actually existed between the defendant and the person against whom the assault was threatened or made; (2) that an assault was actually being made or attempted against the wife of the defendant at the time the homicide was committed, and that, in the judgment of a reascnable person, the killing of the deceased was necessary, at the time, to protect the wife from death or great bodily


The appellant also set out in his brief certain assignments of error in admitting and rejecting testimony on the trial, which do not ap pear in the bill of exceptions, and therefore cannot be considered.

The defendant urges error in the court refusing to give two instructions, as follows:

"When the defendant is a witness in his own behalf, as in this case, his evidence is entitled to the same credit as that of any disinterested witness, provided his testimony is sustained and corroborated by other credible and


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