authorized by the U. S. marshal to arrest the deceased, coupled with an offer to show that the killing occurred in an attempt to arrest deceased, which he resisted, is admissible as tending to show motive and intent of the defendants, thus reducing the grade of the offense. Brannigan v. People, 3 U. 488; 24 P. 767.

In view of medical testimony that deceased's wounds must have been caused by a powerful blow, it was proper to allow a witness to testify that defendant was a strong, powerful man. People v. Thiede, 11 U. 241; 39 P. 837. Affirmed, Thiede v. People, 159 U. S. 510.

Where the manner of the homicide was such that the person committing the crime must have gotten blood on his clothing and defendant at the time of the killing accused another, evidence that no blood was found on the latter's clothing the morning after the crime is admissible. Id.

Without alleging in the indictment by way of inducement the circumstances surrounding the publication of the libel, it was held proper to show that by using the name of the party libeled as a part of the name of a fictitious corporation, defendant intended to refer to him as the manager of another corporation in the same business. People v. Ritchie, 12 U. 180; 42 P. 209.

To prove that a constable had reasonable cause for believing defendant guilty, evidence of the contents of a telegram known to have been placed in the vest pocket of the constable but not searched for in his clothing after his decease, was properly admitted. People v. Coughlin, 13 U. 58; 44 P. 94. It was proper for the jury to consider the condition of the weather, the ice upon the lake, the size of the bullet and the direction from which it was shot, whether the bodies were placed under the ice, and how they came to be found upon the shore, the defendant's effort to prevent a search, his condition of mind and manner when viewing the bodies, and what he said and did indicating a malicious intent, or the absence of it. State v. Hayes, 14 U. 118; 46 P. 752.

BAD CHARACTER OF WITNESS. In a prosecution for adultery, it is error for the court not to allow the defense to show the bad character of the woman with whom the offense was alleged to have been committed, she being a witness for the prosecution. U. S. v. Bredemeyer, 6 U. 143; 22 P. 110. CONSPIRACY. Evidence tending to prove a conspiracy having been given in a prosecution charging defendant with conspiring with a woman to keep a house of ill fame; held, that evidence of notes sent by the woman and statements made by her in furtherance of the common design was admissible against the defendant. People v. Hampton, 4 U. 258; 9 P. 508.

PHOTOGRAPH. A photograph taken two years before the death of the person photographed, but identified as an accurate photograph of the appearance of the person just before her death, may be shown to a witness who saw deceased just before her death for the purpose of identification. State v. McCoy, U.; 49 P. 420.

SEPARATE TRIAL. On the separate trial of a defendant indicted jointly with the owner of a building for burning the same, testimony was allowed over defendant's objection, that the building was insured, and that the owner had made certain statements, with none of which defendant was shown to be connected. The court refused to strike out this testimony or to instruct the jury that there was no connection between the defendant and the owner; held, error. People v. Scott, 10 U. 217; 37 P. 335.

COMPETENCY AND CREDIBILITY OF WITNESS. A person whose signature was forged is a competent but not an indispensable witness. People v. Mahon, 1 U. 205.

A statute which simply enlarges the class of persons competent to testify is not ex post facto as to offenses previously committed: such alterations relate to procedure only, which the state may regulate at pleasure, and in which no one can be said to have a vested right. Hopt v. People, 110 U. S. 574. Same case. 4 U. 247; 9 P. 407.

The credibility of a witness cannot be impeached by asking her whether she has not had some difficulty with her husband. People v. Thiede, 11 U. 241: 39 P. 837. Affirmed, Thiede v. People, 159 U. S. 510.

RES GESTÆ. On the trial of an indictment for murder, the res gestæ will include statements by one of the participants in the fatal affray a few moments after its occurrence, and explanatory of it, but will not include statements made three miles from the scene of the conflict, and after the lapse of sufficient time for reflection. People v. Callaghan, 4 U. 49; 6 P. 49.

On the trial of an action for libel charging rape, while the fact that the woman claimed to have been ravished made complaint that plaintiff had committed the outrage upon her person is material, the particulars or details of her statement are immaterial. Lowe v. Herald Co., 6 U. 175; 21 P. 991.

Where, 45 minutes after being shot, deceased first told an officer in response to a question "who shot him," that he was not a "squealer," but after insistence by the police officer gave the nickname and description of defendant as his assailant: held, that such statements were not part of the res gestæ. People v. Kessler, 13 U. 69; 44 P. 97.

OTHER CRIMES. In a trial for homicide, where the question, whether the prisoner or the deceased commenced the encounter which resulted in death, is in any manner of doubt, it is competent to prove threats of violence against the prisoner made by the deceased, although not brought to the knowledge of the prisoner. Wiggins v. People, 93 U. S. 465. Same case, 1 U. 324.

A long time before the homicide deceased had been assaulted, but the evidence in no way tended to connect the defendant with the assault; held, evidence of the assault is not admissible to show malice. People v. Hancock, 7 U. 170; 25 P. 1093.

Where the defendant offered evidence tending to show the making of an agreement by defendant to kill a certain person, and that certain money was obtained by means of a false statement that such person had been killed, it is not error to exclude testimony that the person making the agree ment had solicited another person to commit the same crime, where such evidence is offered as original. People v. Berlin, 9 U. 383; 35 P. 498.

On a trial of one for murder of his wife, evidence of ill treatment of the deceased by the defendant was admitted as bearing upon the question of motive. People v. Thiede, 11 U. 241; 39 P. 837. Affirmed in Thiede v. People, 159 U. S. 510.

Where in a prosecution for uxoricide a witness testifies that deceased came to her house crying on a certain occasion, the defendant cannot ask the witness concerning his treatment of deceased at a different time. Id.

Evidence of defendant's having killed at the same time another man besides the one with whose killing he is charged, is admissible as part of the res gestæ. The character of the wound on such other person's body may also be proved. People v. Coughlin, 13 U. 58; 44 P. 94.

The testimony of a sheriff whom defendant tried to kill four days before the homicide for which he was tried, while the sheriff was about to arrest him, was admissible. People v. Coughlin, 13 U. 58; 44 P. 94.

Evidence that a watch was taken from the house where the robbery was committed, at about the same time, and found on defendant's person the next day, is admissible to show the presence of the

defendant in the house on the night of the robbery. People v. Kerm, 8 U. 268; 30 P. 988.

THREATS. Where the defendant was the assailing party, and the deceased was unarmed, proof of uncommunicated threats is inadmissible. People v. Wiggins, 1 U. 324.

Where the deceased had threatened the life of defendant, evidence of the character of the deceased for violence should be admitted, to show that he was likely to carry out such threats. People v. Tracy, 1 U. 343.

Threats of deceased against defendant are admissible where the evidence does not show any circumstances at the time of the homicide calculated to excite fear, and, on the contrary, shows that defendant did not act from fear. People v. Halliday, 5 U. 467; 17 P. 118.

The

ADMISSIONS AND CONFESSIONS. acts and declaration of one of a committee of the miners' union while acting in pursuance of the orders of the union are admissible in evidence against all the defendants, they also being members of the union. People v. O'Loughlin, 3 U. 133; 1 P. 653.

Voluntary statements of defendant's made to an officer are admissible. People v. McGrath, 5 U. 525; 17 P. 116.

K., the owner of a stolen mare, found the same in the possession of the defendant, who claimed to have bought the same from I., and sent K. to see I. about it; held, that the conversation between K. and I. was admissible against the defendant as part of the original conversation between K. and the defendant. People v. Clauson, 2 U. 502.

If a defendant voluntarily appears before the grand jury, and after being warned by the prosecuting attorney, still voluntarily was sworn and confessed the charge; held, that upon his trial for such offense, his confession so made could be given in evidence against him. U. S. v. Kirkwood, 5 U. 123; 13 P. 234.

A statement by a defendant made five days before the homicide wherein he said, in reply to a statement that the officers were after him: "Let them come; I am ready for them," was properly admitted. People v. Coughlin, 13 U. 58; 44 P. 94.

Acquiescence in a statement charging a man with crime may be inferred from his silence when he is free to contradict it; but if the circumstances render a denial improper, no such inference follows. People v. Kessler, 13 U. 69; 44 P. 97.

The presumption upon which weight is given to a confession of guilt, ceases when the confession appears to have been made, either in consequence of inducements or because of a threat or promise. Hopt v. People, 110 U. S. 574. Same case, 4 U. 247; 9 P. 407.

A confession made to an officer will not be excluded from the jury merely because it appears that the accused was previously in the custody of another officer; and the court will not require the prosecution to call the latter, unless circumstances render it probable that the accused conversed with the first officer upon the subject of a confession, or justified the belief of a collusion between the officers. Id.

HEARSAY-DYING DECLARATIONS. Statements of the deceased re pecting the cause of his death, made when he had a dread of approaching dissolution, and at a time when he believed that the hand of death was upon him, are to be considered as dying declarations. People v. Tracy, 1 U. 343.

When such statements have been reduced to writing, and signed by deceased, parol evidence is not admissible to prove such declarations, unless the loss or absence of the writing is accounted for, People v. Tracy, 1 U. 343.

The identification of the defendant by the deceased may be admitted in evidence when made by deceased under a belief of impending death. State v. Kessler, U.; 49 P. 293.

The deceased, while under the present apprehension of impending death, and in answer to leading questions, stated the circumstances attending the affray in which he was shot. Both questions and answers were reduced to writing at the time, but were not signed by the deceased; held, properly admitted in evidence. People v. Callaghan, 4 U. 49; 6 P. 49.

Hearsay evidence is incompetent to establish any specific fact which in its nature is susceptible of being proved by witnesses who speak from their own knowledge. Hopt v. People, 110 U. S. 574. Same case, 4 U. 247; 9 P. 407.

EXPERT TESTIMONY. A person acquainted with the handwriting of the person whose signature was forged, is a competent witness. People v. Mahon, 1 U. 205.

The opinion of a physician after making a post mortem examination of the deceased, who came to his death by a blow inflicted upon his head, as to the direction from which the blow was delivered, is admissible in evidence. People v. Hopt, 4 U. 247; 9 P. 407. Affirmed in Hopt v. Utah, 120 U. S. 430.

A person not an expert is competent to testify that certain stains resemble blood stains. People v. Thiede, 11 U. 241; 39 P. 837. Same case, 159 U. S. 510.

It is competent for a doctor giving expert testimony to give as his opinion, from an examination of the body after death and from his previous knowledge of the deceased, that it was not necessary to produce an abortion in order to save the life of the deceased. State v. McCoy, U.; 49 P. 420.

WEIGHT AND SUFFICIENCY. In an indictment for bigamy where the second marriage is alleged to have been with Caroline Owens, but the proof showed a marriage with Caroline Owen Male; held, not a material variance. U. S. v. Miles, 2 U. 19. Same case, 103 U. S. 304.

The indictment charged that three defendants held a pistol, and that with the pistol so held killed deceased; evidence proving that one of the three held the pistol and fired the shot, and that the others aided and abetted therein; held, to sufficiently support such charge. People v. Callaghan, 4 U. 49; 6 P. 49.

The evidence stated in the opinion held not to show a conspiracy on the part of the officers to entrap C. and M. into committing crime, or the consent of the owner of the building to the entry of C. and M. People v. Morton, 4 U. 407; 11 P. 512.

On the trial of one for the murder of his wife, when there is no evidence as to what took place at the time of the homicide, it is error to charge, in effect, that the jury should give little weight to testimony of marital quarrels, unless an express connection between said quarrels and the homicide is shown. Theide v. People, 159 U. S. 510. case, 11 U. 241; 39 P. 837.

Same

Where a crime was committed thirty-two years before trial, when the principal witness for the prosecution was only five years old and other witnesses have grown old, the lapse of time is a strong circumstance to be considered by the jury. People v. Hancock, 7 U. 170; 25 P. 1093.

Where there is evidence sufficient to establish the defendant's guilt, it is for the jury to pass upon its weight and determine whether or not the defendant is guilty beyond a reasonable doubt, State v. Hayes, 14 U. 118; 46 P. 752.

Use on trial of testimony taken in preliminary examinations, ?4513.

If a witness is wrongfully kept away by the prisoner, his testimony taken on a former trial of the prisoner for the same offense, but under another indictment, may be given in evidence. The finding of the trial court that the witness was thus wrongfully kept away should not be disturbed

unless the error is manifest. Reynolds v. U. S., 98 U. S. 145. Same case, 1 U. 319.

Upon a prosecution before a district court on appeal from a justice's court, evidence of what a witness testified to before the justice, where the witness is not produced, and no attempt made to produce him, is inadmissible. Provo City v. Shurtliff, 4 U. 15; 5 P. 302.

Exception.

Cal. Pen. C. ? 1322.

Husband not compelled to testify against wife or wife against husband, Con. art. 1, sec. 12; 4515. In civil cases, 3414.

The alleged second wife can be admitted to testify as to the second marriage, notwithstanding the prior marriage of defendant with another woman, who has been shown only by the admissions of the defendant. U. S. v. Miles, 2 U. 19. Same case, 103 U. S. 304.

It is only in cases where the first marriage is not controverted or has been duly established by other evidence, that the second wife is allowed to testify, and she can then be a witness to the second marriage and not to the first. Id.

This section applies even where party under indictment married a woman before trial to render her incompetent. U. S. v. White, 4 U. 499; 11 P. 570. Under section 1156, code of civil procedure, permitting a husband or wife to testify in a criminal action for a crime committed by the one against the

other, the wife is a competent witness against her husband before a grand jury which indicted him for polygamy. U. S. v. Cutler, 5 U. 608; 19 P. 145.

Under section 1, Edmunds-Tucker law, 24 Stat. 635, providing that the lawful husband or wife of the person accused shall be a competent witness, but shall not be compelled to testify, the privilege is a personal one of such witness. Ex parte Hendrickson, 6 U. 3; 21 P. 396.

But where the witness was asked whether the accused did not marry another woman on the same day; held, on habeas corpus that the question was material in order to determine the validity of witness' claim of privilege and that an answer might be enforced. Îd.

In a prosecution for polygamy, the wife is a competent witness against her husband, notwithstanding his objection, since polygamy is a crime against her. U. S. v. Bassett, 5 U. 131; 13 P. 237. Overruled, Bassett v. U. S., 137 U. S. 496.

Cal. Pen. C. 1323*.

Accused shall not be compelled to give evidence against himself, Con. art. 1, sec. 12; 4515.

Where defendant testifies, the court may call jury's attention to his interest in the result of the trial, provided his credibility and the weight of his evidence be left to the judgment of the jury. People v. Callaghan, 4 U. 49; 6 P. 49.

Counsel for prosecution stated to jury that certain testimony stood uncontradicted, and that it was in defendant's power to explain it, but did not say

how he could explain it; held, no error hereunder. People v. McGrath, 5 U. 525; 17 P. 116.

Where the defendant offers himself as a witness in his own behalf, his cross-examination is subject to the same rules as that of any other witness. People v. Hite, 8 U. 461; 33 P. 254.

Under this section the fact that defendant makes no explanation of his possession of stolen property six hours after its being taken, raises no presump tion against him. People v. Hart, 10 U. 204; 37 P. 330.

Mont. Pen. C. ? 2443.