illustrate the motive or intent of the accused in committing the homicide when it may be said to constitute a part of the res gesta. The character of the deceased, however rash and bloodthirsty, furnishes, per se, no excuse for taking his life. To render such evidence competent and relevant, the conduct of the deceased must be of such nature, that its tendency, under the circumstances and as illustrated by his character, is calculated to create a reasonable apprehension of great bodily harm. The purpose of such evidence is to show the honesty of the accused's belief of imminent peril. Franklin v. State, 29 Ala. 14; Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; Storey v. State, 71 Ala. 329; De Arman v. State, 71 Ala. 357. Where the deceased, at the time the fatal blow was struck, was making no demonstration of violence against the defendant, spoke no words, and did no act, which could tend, even remotely, to produce in the mind of the defendant any apprehension of harm. His character for turbulence and violence is not admissible." Clopton, J., in Lang v. State, 84 Ala. 1. See Keener v. State, 18 Ga. 194, 63 Am. Dec. 269; Wiggins v. Utah, 93 U. S. 465, 23 L. ed. 941.

§ 483. Evidence of Death by Poisoning.-"It would be most unreasonable and lead to the grossest injustice, and, in some circumstances, to impunity of the worst of crimes to require, as an imperative rule of law, that the crime of poisoning shall be proved by any special and exclusive medium of proof, when that kind of proof is unattainable, and especially if it has been rendered so by the act of the offender himself. No invariable and universal rule, therefore, can be laid down, and every case must depend upon its own particular circumstances; and, as in all other cases, the corpus delicti must be proved by the best evidence which is capable of being adduced." Wills, Circ. Ev. 233.

In cases of this kind the purchase or possession of poison under false pretenses and a knowledge of its properties are deemed among the most, if not the most material circumstances. 1 Archb. Crim. Pr. & Pl. (8th ed.) 856; 3 Whart. Am. Crim. L. (7th ed.) § 3494 a.

Motive, however strong, does not prove the crime. Its office is to aid in the application of other circumstances that point toward guilt. It is said to be a minor or an auxiliary fact, from which, when established in connection with other necessary facts, the main or primary fact of guilt may be inferred. Pierson v. Peo

ple, 18 Hun, 253. When the case depends upon circumstantial evidence, and the circumstances point to any particular person as the criminal, the case against him is much fortified by proof that he had a motive to commit the crime; and where the motive appears, the probabilities created by the other evidence are much strengthened. Earle, J., in Pierson v. People, 79 N. Y. 436, 35 Am. Rep. 524.

§ 484. Evidence of Blood Stains in Cases of Homicide.Stains of blood found upon the person or clothing of the party accused, have always been recognized among the ordinary indicia of homicide. The practice of identifying them by circumstantial evidence, and by the inspection of witnesses and jurors, has the sanction of immemorial usage in all criminal tribunals. Proof of the character and appearance of the stains by those who saw them has always been regarded by the courts as primary and legitimate evidence. It is in its nature original proof, and in no sense secondary in its character. The degree of force to which it is entitled may depend upon a variety of circumstances, to be considered and weighed by the jury in each particular case; but its competency is too well settled to be questioned in a court of law. Science has added new sources of primary evidence, but it has not displaced those which previously existed. The testimony of the chemist who has analyzed blood, and that of the observer who has merely recognized it, belong to the same legal grade of evidence; and though the one may be entitled to much greater weight than the other with the jury, the exclusion of either would be illegal. Each party is at liberty to offer such proof as he can, and if it be admissible in its nature and relevant to the issue, it cannot be rejected on the ground that, by greater diligence, it might have been made more satisfactory and conclusive. Either party has the right to resort to microscopic or chemical tests, but neither is bound to do it, and neither can complain of the other for the omission. Porter, J., in People v. Gonzales, 35 N. Y. 61.

Dr. Wharton with rare felicity touches the very pith and marrow of this entire subject in section 777 of his Criminal Evidence. "Scarcely a case arises where this issue is material in which experts have not appeared ready to identify dried blood as human, and by this process to supply a link on which a conviction of a capital offense may be made to rest. It is perhaps a minor matter that in this way enormous expenses are heaped not only on the

state, but on the accused. Experts are brought from a distance by the state at great cost, protracted experiments are made by them afterwards to be detailed to the jury; and testimony is adduced which the defendant must meet at the peril of his life. Controvert it he readily may, if he can procure the means, for the great weight of authority, as will presently be seen, is that such identification cannot be accurately determined. But to procure this testimony may be impossible for him, unless the prosecution assume the expense, which it is often either unwilling or unable to do. This amounts to a perversion of justice; but this is not the chief objection. Supposing experts are obtained so as to fully exhibit to the jury both sides of this vexed question, and the case goes to the jury on their testimony, what then? Is there not danger that the jury may regard the question as one determined, not by ascertainable physical laws, but by their own discretion or on the authority of particular experts? It would seem, in view of these dangers, and in view of the more recent explorations of scientists who have viewed the question, not as advocates retained by a particular party, but as dispassionate investigators, that the time has now arrived in which it is the duty of courts to advise juries, in all cases in which it is proposed to rest a conviction on the identification of certain blood-stains as human, that as matter of fact no such identification can be made out beyond reasonable doubt. That stains look like blood may be proved by expert and non-expert; that they are dried human blood can be satisfactorily proved by no one."

In a highly instructive discussion of this subject by Mr. Rogers in his well known work on Expert Testimony, p. 141, I find the following:

"When blood is dried on clothing, and it is necessary to extract the corpuscles by means of a liquid of a different nature from the serum, we cannot rely on slight fractional differences, since we cannot be sure that the corpuscles, after having once dried, will ever acquire, in a foreign liquid, the exact size which they had in serum. Medical evidence must, therefore, be based, in such cases, on mere speculation.

"There are no certain methods of distinguishing microscopically, or chemically, the blood of a human being from that of an animal, when it has once been dried on an article of clothing." Citing Satterthwaite's Manual of Histology, p. 36.

Common observers, having special opportunity for observation, may testify to their opinions as conclusions of fact, although they are not experts, if the subject-matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time, and the facts, upon which the witness is called to express his opinion, are such as men in general are capable of comprehending and understanding. Whether a witness, not an expert, is qualified to express his opin. ion as a conclusion of fact, is to be decided by the judge presiding at the trial, and his finding is not open to revision in this court, unless, upon a report of all the evidence, it is shown to be without foundation, or is based on some erroneous application of legal principles. Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401.

On the trial of an indictment for murder, a witness familiar with blood, who had examined, with a lens, a blood-stain on a coat, when it was fresh, and who testified to its appearance at the time he examined it, and that it was not in the same condition at the trial, was permitted to testify that its appearance when he examined it indicated the direction from which it came, and that it came from below upward, although he had never experimented with blood or other fluid in this respect. Com. v. Sturtivant, supra.

The views of the Wisconsin supreme court on one branch of its subject must be regarded as substantially embodying the juridical sentiment of this country. In a recent case decided in that court (Knoll v. State, 55 Wis. 249, 42 Am. Rep. 704) a physician had testified as an expert in regard to an examination made by him with a microscope of certain blood stains found upon pieces of cloth and wood. He gave it as his opinion, founded upon such examination, that some of the stains were caused by human blood corpuscles. For the purpose of discrediting the witness it was proposed on the part of the defense to read opinions stated in certain medical works on this subject. The court would not permit this to be done, holding, in effect, that as Dr. Piper had not referred to any medical work, and did not rely upon the authority of medical writers to support his views, but testified from his own knowledge and experience, it was not proper to read from medical works to contradict him. There can be no doubt of the correctness of this decision, which is sustained by the authorities

referred to by Mr. Justice Cassoday in Stilling v. Thorp, 54 Wis. 528, 41 Am. Rep. 60.

Where a medical witness has testified as from his own knowl edge and experience to a matter which is within his province as an expert (as that blood stains were caused by human blood corpuscles) he cannot be impeached by reading to the jury extracts from medical works. Knoll v. State, 55 Wis. 249, 42 Am. Rep. 704.

Proof of finding, six months after the alleged murder, blood on timbers and boards of the barn, where according to the testimony the body had been, was held competent as tending to corroborate. So far as the lapse of time detracted from the force of evidence, it is for the consideration of the jury. After evidence had been given tending to identify certain boards as those taken from the prisoner's sleigh, and that spots, caused by the flow of blood from the dead body, had been on them since the night of the alleged removal, there being no evidence that they had been tampered with since that time or were in any different condition, save that hogs had been dressed upon them, evidence of an expert was received as to certain experiments determining that the spots upon the board were some of them human and some hog's blood. Held, no error, and that the facts that the boards had been a long time out of the possession of the prisoner and had been used by other people, while they affected the question as to the identity of the boards and of the blood spots, did not render such evidence inadmissible. Lindsay v. People, 63 N. Y. 143.

Elaborate treatment of this subject is found in a discriminating article by Hon. Clark Bell, reprinted in the September (1892) number of the Medico Legal Journal, under the title of "Blood and Blood Stains in Medical Jurisprudence."

§ 485. Evidence should Convince Jury Beyond Reasonable Doubt.-In cases of homicide before the defendant can be convicted-this being a crime involving a capital punishment -the jurors should be satisfied upon the evidence disclosed, that the accused is guilty; and their belief in his guilt should be beyond a reasonable doubt. Lang v. State, 84 Ala. 1; Gunter v. State, 83 Ala. 96; Hudspeth v. State, 50 Ark. 534; People v. Goslaw, 73 Cal. 323; Territory v. Bannigan, 1 Dak. 432; Bond v. State, 21 Fla. 738; Weeks v. State, 79 Ga. 36; Marshall v. State, 74 Ga. 26; Watt v. People, 1 L. R. A. 403, 126 Ill. 9; Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99; State v. Trout, 74 Iowa, 5±5;