« ForrigeFortsett »
the probability of mistake and confusion The next question submitted involves the should the name of any candidate be printed status of the nominations of Jordan and Sims. in more than one place as a candidate for the One ground of objection is that a large numsame office. Are those reasons, and is the rule ber of the persons purporting to sign the certifideduced therefrom in the case of other offices, cate of nomination had joined in nominating inapplicable to the office of presidential elector? at least three other persons for the same office The one difference existing in the law between by attending and participating in the primaries that and other offices is that the dames of those of the Republican party. Independent of the candidates for presidential electors presented very general character of the allegation, we in one certificate of nomination shall be ar. are of the opinion that tbe provision of the ranged upon the ballot in a separate group. statute (Laws 1890, chap. 80, $ 89), attempted In view of the further provision of law affect to be thus invoked is prohibitory only of the ing alike all candidates upon the ballot that same person joining in a certificate of nominaone cross votes for but one individual, and tion by electors of more than one person for that the name of the presidential nominee no. the same office. The last part of the clause where appears on the ballot, we are unable to containing the provision referred to provides distinguish the caseof such candidates from tbat that, if any person does so join, his name of candidates for any other office in the respect shall not be counted upon either certificate, and under consideration; otherwise any person or the context clearly indicates that it was only group of persons nominated by more than one intended to forbid one from joining in more party would be entitled to as many places upon than one elector's certificate making a nomina. the ballot corresponding with the number of par- tion for the same office. Whether anyone shall ties nominating them, or certificates lawfully have so joined can then easily be ascertained filed of such nominations. The same group of by the officer with whom the certificates are rethree persons might be presented by several par- quired to be filed. It is, however, contended ties, and the entire group be given as many places that 100 electors cannot supplant a regularly upon the official ballot. Such a result could organized political party, and are not auth. only cause much confusion, and throw doubt orized to place in nomination any candidate as upon the correctness of the returns of the votes representative of such a party. The position cast. We are clearly of the opinion that the taken is that a party nomination is permitted law does not contemplate the printing of the to be made only by a party convention. Coun name of one person as candidate for elector of sel for relator stated upon the hearing that President and Vice President in more than one they were until tbat time unaware that the place upon the ballot. Daniel L. Van Meter People's nominees had first or at any time been was regularly nominated by the People's party, nominated by an electors' certificate; and it and the certificate thereof duly filed. He has was conceded by such counsel that, if a vapot declined that nomination. There is cer- cancy occurs in the nominations made by such tainly no authority to remove his name from an electors' certificate, it might be tilled in the the People's party group. His nomination by same manner. The papers upon which the that party was made long prior to its adoption cause was submitted conclusively sbow that by the Democratic party. His name being 100 electors bad dominated by certificate in entitled to but one place upon the ballot, and due form said Randall, Matthews, and Van no one possessing the rigbt to ignore his first Meter as candidates of the People's party or nomination in the preparation of the ballot, it representing the principles of that party, and necessarily follows that his name is not im- that filiog preceded the certificate of the offiperatively required to be also printed in the cers of the convention. The resignation of same group, and in conjunction with the other Randall and Matthews declined by clear and Democratic candidates. He is described as express language only the dominations conDemocratic as well as People's, and this de- ferred by the state convention of the People's scription indicates to the voter that he has party; but included in their respective state. been nominated as representing both parties. ments of declination was a direction to the An arrangement of the ballot in which all ap secretary of state to omit their names from the propriate groups could be maintained, and vet official ballot sufficiently indicating an intenihe name of Van Meter immediately precede tion upon their part to entirely withdraw as or follow the names of the other Democratic candidates for presidential electors. It is at candidates, thus bringing the three into closer least certain that the respondent has not certiproximity, would certainly not violate the let- tied their names, and that po person or party ter or the spirit of the law: but that matter is insisting that his action in that regard was has been left to the discretion of the county erroneous. A vacancy, then, occurred in the clerks, which, unless the statute is departed list of candidates for the office in question, from, is not subject to the control of the courts. presented by the said certificate of electors. These views find support in State, Sturderant, That vacancy at least was filled by the certitiV. Allen (Neb.) 62 N. W. 35, and Miller v. cate which is now attacked, naming Jordan Pennoyer, 23 Or. 364. Had someone, pot al- and Sims. It is not necessary therefore, for ready a candidate of another party, been nom- this court to decide whether or not a vacancy inated to fill the vacancy caused by the declina in nominations made by a regular convention tion of George H. Cross, the name of such of a political party can be filled by an electors' nominee would be entitled to a place in the certificate, even though, as in the case at bar, same group with the original associates of such political party has not again acted in the Cross. A reasonable construction of the statu- matter by convention, and the convention tory provision would clearly require the name making the original nominations, bas not emof one thus substituted to be given the same place powered any committee to fill vacancies. Inupon tbe ballot that the name of the candidate deed, the contention seemed to have narrowed wbo had declined would have bech entitled to. Ito an attack upon the action of the respondent in grouping the names of Jordan and Sims but has come to our notice. While according with that of Van Meter, and using in connec- to each of those courts our entire respect, if tion with their names the party name “Peo the conclusions arrived at in the cases cited are ple’s,” without any qualifying words to indi. not at all depending upon the character of cate that they were not presented by a party their ballot, we would hesitate to follow them convention. So far as concerns the objection in their application to a statute such as that in to their being grouped with Van Meter, what force in this state. We are inclined, however, has already been said is sufficient, bearing in to the opinion that there is a well-defined dismind that the latter-named person was origi. tinction between those cases and the one at naliy nominated by the certificate of electors bar. In this state, any convention or primary conjointly with Randall avd Matthews, for meeting held for the purpose of making nomi. whom Jordan and Sims were afterwards sub nations to public office, and also a specified stituted.
number of electors, may nominate candidates It is, however, very seriously insisted on be- for public office to be filled by election. Laws half of the relator that the respondent is not 1890, chap. 80, $ 84. A convention or primary authorized to certify the designation of “Peo meeting is defined as “an organized assemblage ple’s” in connection with the names of these of electors or delegates representing a political substituted candidates, but that he should use party." $ 85. Nominations made by a con. some other word of description, or add to that vention or primary meeting are required to be so used, which would clearly indicate that they certified in writing containing the name, resiwere nominated by certificate of electors; and dence, and business of the person nominated, in support of that view we are referred to the and in not more than five words, the party or case of Philips v. Curtis (Idaho) 38 Pac. 405, principle which such convention or primary which gives countenance to that proposition. meeting represents. It is required to be signed That case, however, is founded upon a statute by the presiding officer and secretary of the wbich, although quite similar in some respects convention or primary meeting, and verified to our own, and particularly so concerning by them in a certain manner. $ 86. Candi. the making of nominations, is radically differ- dates for office may be nominated otherwise ent in others, which must bave considerable than by convention or primary meeting, as bearing upon the question. In that state the follows: A certificate containing the name of method of preparing the ballot follows that of a candidate for the office to be filled with most of the states using the Australian system. such information as is required to be given "Their statute expressly, requires that “the in certificates of nominations by convention width of the ticket shall be divided into as shall be signed by electors, etc. When the many equal parts by lines the whole length of office is to be filled by the electors of the the ticket,
as there are political prin entire state, the certificate must be signed ciples or parties represented by the candidates by not less than 100 electors. Such cer. each of said parties or divisions to bave a tificates may be filed in the same manner, heading or caption designating the political and with the same effect, as a certificate of principle or party represented by the several nomination made by a party convention. $ 88. candidates.' The ballot in that state therefore Provision is made for declining a nomination, is arranged in separate columns, the candidates at least twenty-five days before election ($ 95); of each party being contained in one column and, in case of vacancy occurring for any reawith the name of the party or principle at the son, the same may be filled in tbe manner re. head. In the case cited we are led to infer quired for original nominations. § 96. In from the opinion that the People's party, al- case the nomination thus vacated bas been though holding a convention, and making cer- made by a party convention, which has dele. tain nominations, bad failed to mention any gated to a committee the power to fill vacanone as a candidate for state senator; and Phil cies, the same may be filled by such committee. ips, who had been nominated for that office by $ 97. It was urged by counsel for respondent another party, sought to have his name placed that the language of $ 96, viz., "may be filled upon the ticket of ihe People's party under a in the manner required for original nominanomination made by a certain number of elect. tions,” expressly permitted a vacancy to be ors, the certificate thereof designating him as filled in either of the ways provided for the People's party candidate. The effect would be, making of original nominations, irrespective if his prayer had been granted, that his name of the manner in which the original nominawould bave gone upon the regular People's tion in the particular instance bad been made; party ticket, and in the column upon the bal. that is to say, either by convention (or comlot set aside for the ticket of that party, and mittee, if authorized), primary meeting, or with the other candidates regularly dominated certificate of electors. Whether or not the by a convention of that party. It was held language or purport of the statute goes to that that the certificate authorized his name to go extent we do not, as already intimated, express upon the ballot as an independent candidate any opinion, as we find in this case the vacanonly, and that any number of electors could cies to have been filled in the same manner as not secure the name of any candidate which the original nominations were made and prethey saw tit to indorse to be placed upon the sented. ticket of any party. It will be observed, In an earlier part of this opinion we adwhether it is important or not, that the candi. verted to the method of making up the ballot, date seeking the aid of the court in that case from which it appears that there are no party was already pamed upon the ballot in the headings thereon, nor columns set apart for ticket of another party. The same comments separate parties; but the ballot is required to are applicable to the case of Atkeson v. Lay, contain, in addition to the names of the candi115 Mo. 538, which was not cited by counsel, dates, the name of the party or principle repre
sented by them respectively as contained in which will accord to the citizen the greater the certificate of nomination. It must be ob- liberty in casting his ballot. People, Eaton, v. served that the certificate under which the con- | District Court, 18 Colo. 26. It has been held troversy arises as to the right to use the word that, where two factions of the same political “People’s” is not arraigned by any persons or party have held separate conventions, and cerauthority representing the People's party. No titied nominations, using the same political one claiming any allegiance to that party is designation, the secretary of state is without here complaining of the act of Chairman Pat- authority to decide which of the two is entitled terson and his associates. The complaint to the party name, and is required in such case comes from the chairman of the state commit to certify both sets of nominations, giving to tee of an entirely separate political party. each the political designation found in the cerWhile he probably has the right to prefer such tificate of nomination. People, Eaton, v. Disa complaint, and have the matter adjudicated, trict Court, supra; Phelps v. Piper, 48 leb. nevertheless we are confronted with the fact 724, 33 L. R. A. 53; Shields v. Jacob, 88 Mich, that at the instance of one pot afliliated with 164, 13 L. R. A. 760. In Kansas a nomina. the People's party in any manner, so far as the tion by electors designating their single candi. record discloses, we are asked to judicially date as the nominee of the Miners' and Labor. deny the right of more than 100 electors, in- ing Men's party was recognized as a party cluding the one bighest in authority in the nomination, and the court says: "We think party in this state, describing themselves as that each political party has a perfect rigbt io ibe representatives of that party, from giving select its candidates as it pleases, and have the party name to their candidates. If this their names printed under its party heading; certificaie bad come in conflict with other that there is nothing in the law nor in reason nominations made by the same party in regu- preventing two or more political parties, lar convention, a very different question might whether acting through conventions or by pe. arise. In the case at bar, however, we have titions, from selecting the same individuals before us the broad question whether, in any for one or more of the offices to be filled.” case, the secretary of state is at liberty to re- Simpson v. Osborn, 52 Kap. 328. In Minnespect the designation of a political party or sota the supreme court upheld as party nomiprinciple mentioned in a certificate of nomina- nees certain candidates named by a mass iion by electors, when the certificate is signed, convention, in opposition to rival candidates sworn to, and presented by the state chairman presented by a delegate convention of the same of such party, and in its body alleges that the party; one of the reasons assigned being the signers represent the party, in the absence of entire absence of any statutory provision reguany other existing nomination by such party lating the manner in which political parties for the same ollice; or whether he is bound to should proceed in organizing conventions or disregard such description, or add something making nominations. Manston v. Mchitosh, to it, not found in the certificate, indicating 58 Minn, 525, 28 L. R. A. 605. To hold that the manner in wbich the nominations were the provisions of the statute authorizing a made. There can bardly exist a doubt but convention to make nominations, and defining that our legislation or the subject of elections a convention as an organized assemblage of is more or less imperfect, wbich fact in vites electors representing some political party or contlict, and possibility of confusion; but the principle, necessarily contines a political party courts cannot supply omissions in the law. to proceedings by and through a convention, Anticipating, or perhaps baving experienced, especially in view of the other provisions af. controversy along this very line, many of the fecting nominations by electors' certificate, or states have explicitly regulated the manner in by petition, as it is sometimes popularly which party nominations may be made. There termed, would require the judiciary to interis nothing of that character in our law. We polate something which has been omitted, perhave searcbed the election law in vain to dis. baps purposely, from the statute. In the case cover any limitations upon party nominations. at bar no convention of the People's party has There is not a clause or line anywhere requir- acted as to two candidates for electors subse ing or tending in that direction that a political quent to the declination of two persons named party can only present nominations for public in convention as well as by petition. No comoffice through the medium of party conven-mittee was given authority to act. The chairtions or primary meetings. The writer of this man of the state committee, with 100 associ. opinion believes that a wise regulation in that ates, present the certificate in question as regard, and legislation explicitly defining the alleged representatives of the party. If a status of nominations by certificate of elect- party may, under any circumstances, act otherors, would be desirable; but there is no such wise, than by convention or primary meeting, legislation at present, and the courts have no no lawful or reasonable objection can be urged authority to place restrictions upon those mat. to such action in the case and upon the facts ters when the legislature has left them open. before us. We conclude, therefore, that the A convention of delegates, or even a mass con respondent was not bound to disregard the po. vention, is, after all, but a representation of litical designation accompanying the names of some political party; neither constitutes the the candidates Jordan and Sims in the certifiparty itself; and until the appropriate depart- cate nominating them, that a fair and reasonment has limited or restricted the method by able construction of the statuie does not rewhich a party may be represented, and through quire him to add to or qualify the party name what character of representation it may act, thus used. No such duiy being imposed upon we do not consider it within the province of that officer, it does not rest upon the court. the courts to do so. If there is any doubt The urit prayed for must be denied. about a matter of this character, then that Conaway, J., concurs. Groesbeck, Cb. construction of the statute should be adopted 'J., did not participate in the decision.
NEBRASKA SUPREME COURT.
Andrew DEBNEY, Pijf in Err.,
roneous instruction where it could not have 0.
prejudiced the complaining party. STATE of Nebraska.
3. Held, that the eighth instruction, de
fining the term deliberation,” was as
favorable to the accused as he was entitled to (45 Neb. 856.)
4. Instructions given to a jury should be *1. The crime of murder is regarded as construed together; and if, when so considered having been committed at the time when as a whole, they properly state the law, it is suththe fatal blow or wound is inflicted, although
cient. the death occurs on a subsequent date; and the 5. Held, that the twenty-fourth paraparty is to be tried by the laws in force at the graph of the charge to the jury, upon the time the injurious act is done.
subject of intoxication, is applicable to the evi2. It is not reversible error to give an er
dence adduced on the trial.
6. Evidence held to sustain a convic*Headnotes by NORVAL, Ch. J.
tion for murder in the first degree.
NOTE.-Time when homicide is deemed to be com- with the requisite contemporaneous intent and demittců.
sign which legally rendered it felonious,--the sub
sequent death of the injured party being the reAs to the locality of crime committed by shoot- sult or sequence, rather than a constituent eleing or striking across state boundary, see note to mental part of the crime, the giving of the blow State v. Hall (N. C.) 28 L. R. A, 59.
constituting the felony, the blow alone being the This note is limited entirely to the consideration act of the party, the death only a consequence of of the question of time, and does not include any such act. cases involving the jurisdiction of the court, or the Again, in Stout v. State, 76 Md. 317, it was held question of place, although in many cases the time that by the inflicting of a mortal wound then and and place of the commission of the crime would there, the accused expended his active agency in seem to be treated as analogous, the weight of au- producing the crime, no matter where the injured tbority being in favor of the doctrine that the party migbt languish, or where he might die, if crime is committed where the blow is struck, the death ensued within the time and as a consequence shot fired, or the poison administered, and there of the stroke or poison given, the grade and charfore it would seem that if the place where the blow acteristics of the crime being determined immeis given determines the place or jurisdiction of the diately that death ensued, and that the result recourt, the crime may equally be said to he com- lated back to the original felonious wounding or mitted at the time the blow is given, the shot is poisoning, the giving of the blow that caused the tired, or the poison is administered.
death constituting the offense. There is, however, very little direct authority And so in Siate v. Gessert, A1 Minn. 369, it was upon the question involved in this note, the courts beld that it was for his acts that the defendant was as a general rule seeming to assume that the place responsible, such acts constituting his offense, the where the crime is committed determines the time death which characterized those acts not being his of the committal of the offense. The dicta of the act but the consequence thereof. courts in many cases wherein the point raised was Again, in Com. v. Macloon, 101 Mass. 1, 7, 100 Am. purely one of jurisdiction lead to this supposition. Dec. 89, the court in support of the theory that the
With respect to the question of time, it has been deed is committed at the time when the fatal blow, held that murder is a complex term denoting sev- etc., is given, stated that the injury and death were eral facts of which the death of the party is one of as much the continuance, operation, and effect of the most essential. The mortal stroke or the ad- the unlawful act as if the deed had proved instantly ministration of poison does not constitute the fatal, the unlawful intent attending and qualifycrime, unless the sufferer dies thereof within a year ing the act until its final result. and a day. Com. v. Parker, 2 Pick. 550, 558. This And in Riley v. State. 9 Humph. 646, 658, it was principle may be said to be the settled rule of law, held that the blow given was the act of the party, the authorities as a whole supporting it.
and the death was only the consequence of the In United States v. Guiteau, 1 Mackey, 498, blow. 539, it was held that murder was committed within So, in State v. Carter, 27 N. J. L. 499, the time that the District of Columbia when the felonious blow the blow was given was looked upon as the time of was struck there, notwithstanding the consequent the committal of the offense. That case, however, death happened without the District and in one of was one dealing with the question of jurisdiction. the states.
And in People v. Adams, 3 Denio, 190, 45 Am. Dec. So, in People v. Gill, 6 Cal. 637, where the blow 468, which was also a case relating to jurisdiction, was given before, but the death ensued after, the the court held tbat a crime was committed in the passing of the California statute of April 16. I state of New York at a time when a party, though 1856, which provided that upon trials for crimes out of the state, put in motion bis act by an innocommitted previous to its passage the party should cent third party acting under him within the state. be tried by the laws in force at the time of the com- Again, in Burns v. People, I Park. Crim. Rep. 182, mission of such crime, the court holding that the 185, the court said that if a party assaulted, after a death must be made to relate back to the unlawful felonious attempt, died within a year and a day, act which occasioned it, and that as the party died the same act, which till his death was an assault in consequence of the wounds received on a par- and a misdemeanor only, though aggravated, was ticular day, the day on which the act was com- by that event shown to have been a mortal wound, mitted, and not the one on which the result of the the event, strictly speaking, not changing the charact was determined, was the day on which the acter of the act, but relating back to the time of murder was properly charged.
the assault, and the same act which might be a felAnd again, in Green v. State, 66 Ala. 44, 41 Am. onious assault only, had the party not died, was Rep. 744, it was held that the crime of murder con- shown by tbat event to have been a mortal wound sisted in the infliction of the fatal wound coupled and the crime a capital felony.
7. When the county attorney finished Messrs. Reid & Morgan,M. V. Moudy,
bis closing address to the jury, some of the and Albert & Reeder for plaintiff in error. bystanders, without the knowledge or conni- Mr. A. S. Churchill, Aitorney General, vance of anyone connected with the prosecu- for the State. tion, applauded, which was quickly surpressed by the presiding judge, and wbo administered a Norval, Ch. J., delivered the opinion of rebuke to the persons making the applause. the court: Held, that the record failed to disclose that the
An information was filed by the county atdefendant was prejudiced by the demonstration. torney in the district court of Nance county,
charging the plaintiff in error, Andrew Deb(October 1, 1895.)
ney, with murder in the first degree. The
prisoner was found guilty as charged, and was County to review a judgment convicting judgment be seeks to reverse by this proceeddefendant of murder. Affirmed.
ing. It appears from the record before us that The facts are stated in the opinion.
the plaintiff in error and bis wife, Catherine
And in state v. Hall, 114 N. C. 909, 919, 28 L. R. A. given date, and while the state laws had changed 59, it was stated that if a party stauding in one the penalty prior to the finding of the indictment, state shoots at another in a neighboring state, un- the court held the indictment sufficient as charging til the act consummates a crime there is simply an that the deceased died on the day of the act conattempt, but when the party is wounded by such mitted, prior to the finding of the indictment, and shot the crime in its completeness exbibits itself. the passing of the law changing the death penalty.
So, in State v. Bowen, 16 Kan. 475, the court stated Agam, in Com. v. Stafford, 12 Cusb. 619, the court that altbough the crime was not complete until would also seem to lean to the opinion that the death, yet the death simply determined the charac- I crime is committed when the poison is adminis. ter of the crime committed in giving the blow, and ; tered at various times, death or murder being the referred back to and qualitied that act,
result. In that case, bowever, the question was one And it has been held tbat the offense of shooting of practice relating to the allegation of the crime at another is committed in the state of Georgia in the indictment, as being caused by injuries inwhen one in tbe state of South Carolina, without ficted on different days. malice aforethought, but not in self-defense, or In a case wherein the defendant was convicted under other circumstances of justification aims of manslaughter under $ 5344 of the United States and fires a pistol at another, who at the time is in Revised Statutes, which makes it manslaughter tbe former state, even tbough the ball misses him for a captain, engineer, pilot, or other person emand strikes the water in that state near the boat ployed on a vessel, by his misconduct, negligence, which he occupies. Simpson v. State, 92 Ga. 41, 22 or inattention to his duties, to cause the death of L. R. A. 248.
any person, the court stated that the offender was In Archer v. State, 106 Ind. 426, 432, the court guilty, not when the misconduct or negligence ocpointed out the conflict in the authorities as to curred, but where that misconduct bore fruit by whether death was part of the crime of murder, causing the death of a human being. Re Doig, some authorities maintaining that death was the 4 Fed. Rep. 193, 196. mere consequence of the crime; others holding In Rex v. Hargrave, 5 Car. & P. 170, in a case of that it was part of the crime, for the reason that manslaughter against the prisoner as principal in there was no murder until death occurred, which the second degree, the court stated that tbe giving must be within a year and a day, but the court did of the blows wbich caused the death constituted not pass upon the question, as in that case, which the felony, and that the languishing of the dewas one of murder, the defendant's acts were sub-ceased was no part of the offense. stantive criminal wrongs, forming essential parts And again, the case of Reg. v. Lewis, 7 Cox, C. C. of the crime, and the point was wholly jurisdic- 277, Dears. & B. C. C. 182, 186, 26 L. J. M. C. N. S. 104, tional in its character.
3 Jur. N. S. 525, would also seem to support the And the same conclusions would seem to have theory that the offense was committed at the time been arrived at by the court in the case of State v. the blow is given, although that case was one enKelly, 76 Me. 331, 49 Am. Rep. 620, although that tirely relating to the question of jurisdiction. was a case of jurisdiction.
In Reg. v. Holland, 2 Moody & R. 351, the court So, it would seem that the court, in State v. stated that if the prisoner wilfully and without Blunt, 110 Mo. 322, 337, looked upon the offense as justifiable cause, inflicted the wound wbich ulticommitted at the time the blow was given, inas-mately caused the death, he was guilty of murder, much as it stated that the fact that death occurred and that it made no difference whether the wound a short time after the county boundary had been was in its pature instantly mortal, or whether it reached, was a mere incident and result of the became the cause of death by reason of not being crime previously committed in another county. properly cared for, the real question being whether But that case related solely to the question of ju- in the end the wound intlicted was the cause of risdiction.
death, tbe court considering the ultimate death as And the same principles form the basis of the the consequence of the blow. court's decision in passing upon the court's juris- In the case of Chapman v. People, 39 Mich. 357, diction in Ex parte McNeeley, 36 W. Va. 84, 15 L 359, 361, 362, in answer to the argument that the mur. R. A. 226, a poisoning case, where the death oc- der was considered in law as occurring when the curred within the state, but in that case as juris blow was given which resulted in death, the court diction was expressly conferred upon the state looked upon death as an essential ingredient in court by statute, the court upheld the prosecution homicide, and that until it occurred there was no in the state where the death occurred.
such crime, no murder being then committed, Although the case of State v. Ryan, 13 Minn. 371, there being no doctrine of relation which could was one wherein the sufliciency of the indictment alter the date or the time of the death, and no rule was attacked, the defendant being indicted and which could anticipate the death and complete the convicted of murder in the first degree, under the crime earlier, -especially where there was no statlaws in effect at the time charged in the indictment, utory provision to the contrary. which alleged the killing of the deceased on a