the supreme court may proceed with the hearing of the exceptions, dismiss the appeal, or direct the cause to be continued to await the recapture of the fugitive, and any judgment it may pronounce will not be invalid because of the fact that the defendant was not actually or constructively in custody, or not represented by counsel. Jacobs, 107-772.

Where a prisoner under sentence of death is rescued and escapes, and is not recaptured until after the day fixed for the execution, the judge, at a subsequent term, may direct the sentence to be carried into effect. Cardwell, 95-643.

RESPITE BY GOVERNOR.-The fact that the prisoner had been granted a respite by the governor does not make it the duty of the executive to fix the day for the execution after the prisoner is recaptured. Cardwell, 95–643.

Where a prisoner convicted of a capital felony escapes and is at large when his appeal is called in the supreme court, the court will either hear and determine the assignments of error, dismiss the appeal, or continue the case. Cody, 119-908.

JAILER TRUSTING KEYS TO ASSISTANT.-On indictment of a jailer for the escape of a prisoner, it appeared that he had entrusted some of the keys to an assistant, who, according to the testimony, connived at the escape: Held that it was proper to instruct the jury that the only question was whether the defendant exercised due care in the employment of his assistant. Lewis, 113-622.

GOOD FAITH FOR JURY.-Where there is evidence that the officer tried in good faith to prevent the escape, the question of his good faith and diligence should be submitted to the jury. Blackley, 131–726.

DEFENDANT MUST NEGATIVE NEGLIGENCE.-On indictment of a jailer for the escape of a prisoner in his custody, it is not necessary to prove negligence on his part, since that is implied, and the burden is on defendant in such case to show that the escape was not with his consent or through his negligence. Lewis, 113-622.

INDICTMENT MUST AVER ESCAPE OF LAWFUL PRISONERS.-An indictment for assisting prisoners to break jail which does not allege that such prisoners had committed any offense, or state facts or circumstances from which the court can see that they were lawfully in prison, is fatally defective. Jones, 78-420. PAROL AUTHORITY TO COMMIT PRISONER VOID.-When a person, not a constable, has been deputed to serve a state's warrant, the deputation ceases upon his returning the defendant before a justice and returning the process before him. An authority to convey a prisoner to jail can not be given by a justice by parol; nor is a person thus conveying a prisoner liable to indictment for an escape. Dean, 48 (3 Jones), 393.

RESPONSIBILITY OF OFFICERS.-Officers and public agents will not be held to the rigorous common law rule of responsibility for the custody of convicts outside the penitentiary, actual negligence being the test of guilt. Johnson, 94-924.

As a general rule it is not necessary to prove negligence when one has the lawful custody of prisoners, for it is implied unless occasioned by the act of God, or from irresistible adverse force. Johnson, 94-924.

CONVICT USED AS "TRUSTY."-Where a prisoner confined in the public jail was used by the county authorities to work on the public roads, the person in charge of him was guilty of an escape for negligently allowing such person to make his escape. Sneed, 94-806.

EFFECT OF ESCAPE PERMITTED BY OFFICER AS TO FINE AND COSTS.-An escape permitted by the sheriff does not operate as a discharge of a fine and costs imposed on defendant, who was placed in the custody of the sheriff. Simpson, 46 (1 Jones), 80.

JUSTIFICATION-ERRONEOUS JUDGMENT NO EXCUSE.-An officer charged with an escape can not justify on the ground that the prisoner was placed in his custody under an erroneous judgment. Garrell, 82-580.

Sec. 286 (3657). Breaking prison.

If any person shall break prison, being lawfully confined therein, he shall be guilty of a misdemeanor.

Code, s. 1021; R. C., c. 34, s. 19; 1. Edw. II., st. 2d.

Sec. 287 (3658). Escape.

If any prisoner, who shall be removed from the prison of the respective counties, cities and towns under the law providing for hiring prisoners, shall escape from the person or company having him in custody, he shall be guilty of a misdemeanor, and imprisoned at hard labor not more than thirty days, or fined not more than fifty dollars.

Code, s. 3455; 1876-7, c. 196, s. 4.

Sec. 288 (3659). Escape of, permitting, or maltreating.

If any person charged in any way with the control or management of convicts, hired for service outside of the state's prison, shall negligently permit them to escape, or shall maltreat them, he shall be guilty of a misdemeanor; but this provision shall not be held to relieve any person from any criminal liability.

Code, s. 3450; 1881, c. 127, s. 2.

Sec. 289 (2822). Solicitor to prosecute officer for escape.

It shall be the duty of solicitors, when they shall be informed or have knowledge of any felon, or person otherwise charged with any crime or offense against the state, having within their respective districts escaped out of the custody of any sheriff, deputy sheriff, coroner, constable or jailer, to take the necessary measures to prosecute such sheriff, or other officer so offending.

Code, s. 1023; R. C., c. 34, s. 36; 1791, c. 343, s. 2.

ESTOPPEL.

The doctrine of estoppel does not apply to the state. Williams, 94a—891.

The age of a child may be shown by entries in a Bible where the witness states that he knew the handwriting of the child's mother, that the Bible belonged to the mother, and that the entries had been made by her and that she had been dead seven years. Hairston, 121–579.

A witness may testify to his own age according to the reputation in the family. Best, 108-747.

2. ALIBI.

In attempting to prove an alibi defendant can not give in evidence what he stated to a witness who saw him at a distanct place at a particular time. Morgan, 19 (3 D. & B.), 348.

Evidence that a servant of defendant, on the morning after the offense was committed, went to a neighbor's house to borrow a pair of saddle-bags and returned with them toward home is competent, if it be further proved that the defendant was seen soon afterwards with a pair of saddle-bags going in a direction from home. Scott, 22 (2 D. & B.), 35.

What defendant said to a witness who saw him at a distant place at a particular time can not be given in evidence by defendant to prove an alibi. Morgan, 19 (2 D. & B.), 348.

An instruction that it is "essential to the successful proof of an alibi that it should cover the whole time of the occurrence" is erroneous, since the effect of the evidence is for the jury, whether it cover all or only part of the time. Jaynes, 78-504.

A charge that when an alibi is set up, the burden is shifted to defendant to establish it, can not be sanctioned, yet if such an instruction is followed by another, that the state must prove beyond a reasonable doubt both the

perpetration of the crime and that defendant committed it, and that if such absence was shown it was an end to the case, the objection is removed. Freeman, 100-429.

A charge "that the burden of proof to show the guilt of the prisoner was upon the state, but when the state had made out a prima facie case, and the prisoner attempted to set up an alibi, the burden of proof was shifted, and that if the defense failed to establish the alibi to the satisfaction of the jury, they must find the prisoner guilty," is erroneous. Josey, 67—56.

It is error to charge that where the evidence makes out a prima facie case of guilt, and the defendant relies upon an alibi, the burden is shifted, and if the defendant fails to establish his alibi, the jury should convict. Josey, 64-56.

3. BEST IMPRESSION OF WITNESS.

WHEN "BEST IMPRESSION" OF WITNESS ADMISSIBLE.-A witness who testified on a trial for murder that he saw the prisoner with a child in her arms, and was not sure the child was the deceased's, was asked: "Is it your best impression that the child she had in her arms was her son R?" Held, to be error to admit the question. A witness can give his "best impression" or memory of a fact within his knowledge, but not his impression or inference from what he saw. Thorp, 72–186.

4. CHARACTER.

While a witness as to character may, of his own motion, say in what respect the character of the person asked about is good or bad, the party introducing him can only interrogate him as to the general character of such person. Hairston, 121–579.

Where a character witness answers that he does not know the character of the party introducing him, he should be stood aside; the party introducing him has no right afterwards to ask him if he knows his character for truth and honesty. Wheeler, 104-893.

A witness introduced to impeach another witness can not be asked if, from his general character, he would believe the impeached witness on oath. Caveness, 78-484.

Where a witness, called to impeach the character of another witness, states that he knew his character when he lived in another place some two or three years ago, but does not know what his character is where he now lives, such evidence is not too remote, and its rejection is error. Lanier, 79-622.

A witness who gives another witness a bad character may be asked, on cross-examination to name the persons who had spoken disparagingly of the witness, and what was said. Perkins, 66—126.

A witness will not be allowed to testify as to character until he shall have urst qualified himself by stetor that he knows the general reputation of the person in question. Coley, 114-879.

Where the prosecuting witness testifies that the defendant told him that he sold the cotton taken from the barn of W, who was neither a party nor a witness, it was not error to refuse to allow defendant to prove that W was a man of good character. Staton, 114-813.

If a character witness is cross-examined as to particular facts the redirect examination must be confined to the particular matter brought out by the cross-examination. Ussery, 118-1177.

A witness as to character can not be asked by the party introducing him in what estimation the impeached witness is held in his neighborhood. O'Neale, 26 (4 Ired.), 88.

5. CHARACTER OF DECEASED.

Evidence as to the character and habits of the deceased is not competent, except where there is evidence tending to show that th killing may have been in self-defense, or where the evidence is wholly circumstantial and the character of the transaction is in doubt. Exum, 138-600.

6. CHARACTER OF DEFENDant.

Where the defendant offers no evidence of his character the jury are to weigh the evidence as if they knew nothing against him except what is disclosed on the trial. Collins, 14 (3 Dev.), 117.

Where defendant offered proof only of the character he sustained at the time of the alleged offense it is not competent to prove his character at the time of the trial. Johnson (60 Winst.), 151.

Where a defendant introduces evidence of his good character, the state is limited in reply to evidence of general reputation. Laxton, 76-216 .

Where on the trial the defendant testifies in his own behalf and introduces no evidence as to his general character, but the state introducss evidence to show that his character is bad, such evidence by the state can only be considered as affecting the credibility of the defendant as a witness, and not as a circumstance in determining the question of his guilt or innocence. Traylor, 121-674.

A defendant may offer evidence of his good character without testifying in the case himself. Hice, 117-782.

Where a defendant offers evidence of his good character the state may show his bad character either by cross-examination or by other witnesses. Hice, 117-782.

When a prosecutor or defendant goes upon the witness stand as a witness te becomes just as any other witness, and his general character can be proven, not only as it was before a charge affecting it was made, but as it is at the date he goes upon the stand. Spurling, 118-1250.

Where a defendant testifies in his own behalf it is competent to prove his character for truth, although he introduces no evidence as to his general character, bu it is not competent to show any particular trait of his character, as that he was "a little fussy." Foster, 130–676.

Where defendant testifies for himself, but introduces no evidence as to his character, it is error to admit evidence that he had the reputation of being "a little fussy." Foster, 130–666.

7. CIRCUMSTANTIAL EVIDENCE.

Evidence of facts, which in themselves are slight, should in cases of circumstantial testimony, be admitted if they, with other facts proved, bear upon the crime charged. Rhodes, 111-647.

Where the evidence is circumstantial, each fact proving a necessary link in the chain must point to the guilt of the accused, and must be as clearly and distinctly proven as if the whole case depended on it, the strength of the chain being determined by the strength of its weakest link. Carson, 115— 743.

It is not error to refuse an instruction that the strength of circumstantial evidence must be equal to the strength of the testimony of one credible eyewitness. Carson, 115-743.

Circumstantial evidence is not only a recognized and accepted instrumentality in the ascertainment of truth, but it is essential, and when properly understood and applied, highly satisfactory in matters of the gravest moment. Brackville, 106-701.