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Defendant can not complain of the exclusion of his declarations made after the struggle and shooting which resulted in the death of his antagonist, if, in a subsequent period of the trial, all of such declarations are admitted after the state had called out a part of them. Edwards, 112-901.

On the trial of J and R for murder a witness for the state testified as to a conspiracy between defendants; that R and witness were in jail together and R told witness that they had been his ruin; that he said he met three persons named, and had started home, and they begged him to come back with them to hunt certain boys to get into an affray with them; that he had then turned and went back with them and that was his ruin. Defendant J was not present during this conversation: Held, that it was error to admit such testimony as against J. Stanton, 118-1182.

Where it appeared that a pistol was loaned to the prisoner it was not competent for him to show that he could hear of no one who had loaned him a pistol. McKinney, 111–683.

A witness for the state testified that he was present at the time of the killing and identified the prisoner as the perpetrator of the act. Soon after a number of persons assembled at the place, and, in the presence of the witness, accused persons other than the prisoner of the crime, to which witness made no response: Held, that the silence of the witness under such circumstances was a fact going to his discredit, and it was error to exclude the evidence of it from the jury. Morton, 107-890.

Where A, B and C are indicted for murder, and after a severance B is tried and convicted, and is then introduced by the state as a witness against A, he may be asked, for the purpose of contradicting him, if he did not tell the counsel of C, while conversing with him in jail, "that he was sorry A and C were put in jail for his devilment." Davidson, 67-119.

Evidence that "some time before the deceased was killed," a third party went in the direction of the house of the deceased with a deadly weapon, threatening to kill him, is inadmissible. Davis, 77-483.

Evidence that a third party "had malice towards the deceased, a motive to take his life and the opportunity to do so, and had threatened to do so," is inadmissible. Davis, 77-483.

Where the homicide was committed at the house of a woman whom the prisoner visited, a declaration by the prisoner that he would kill any man who came around "his woman's house," is competent as tending to show motive and malice. Teachy, 138-587.

No particular formula of set words is required in regard to the force of circumstantial evidence, and it is sufficient if the judge charges the jury that the law presumes the defendant to be innocent, and that the burden is on the state to show his guilt and that upon all the testimony they must be fully satisfied of his guilt. Adams, 138-688.

It is error to exclude the testimony of one of the prisoners that his brother, the other prisoner, asked the witness to go with him to the home of the deceased to help him persuade the deceased to marry their neice, and that the witness informed his brother that he would go with him for that purpose, and there was no agreement or conspiracy to use force if deceased declined. White, 138-704.

Where defendant's father testified that defendant was at home at seven o'clock on the night of the shooting, and that he, the father, went to bed early and did not see defendant until next morning, and deceased was shown to have been shot about nine o'clock that night, testimony of a state's witness that a few days after the shooting the father said, on hearing that the shooting was done at nine o'clock, that he might as well give up the case, as he could not account for the defendant after seven o'clock, was inadmissible, since it was neither contradictory nor connected with any fact concerning the shooting. Teachy, 134–656.

Evidence that the prisoner, who was foreman of a lumber camp, had not sent the deceased a sufficient amount of dinner on the day of the killing is irrelevant. Castle, 133-769.

Evidence that the prisoner drank liquor is incompetent, he not being a witness and his character not being provable by particular facts. Castle,

133-769.

Statements made by the prisoner to a witness whom the prisoner procured to aid in the commission of the homicide are competent as a part of the res gesta. Register, 133-747.

A letter written by the prisoner tending to show an attempt to manufacture or suggest statements that a witness should testify to in his interest is competent. Register, 133-747.

An indictment against a witness who had turned state's evidence is not admissible to impeach him. Register, 133-747.

Evidence that the prisoner, immediately after the shooting, said: "That was a good shot, wasn't it, with my leit hand?" is competent. Utley, 132— 1022.

It is competent for a witness to state that shortly before the shooting the prisoner seemed mad at the deceased. Utley, 132-1022.

The deceased, a woman, was found dead just outside her house which was about a mile from town, and about one-fourth mile from a public road. The prisoner previously had been seen frequently going in the direction of the deceased's house, and on the afternoon of the day preceding the finding of the body was seen at a place about a quarter of a mile from the house of the deceased, after which he went in the direction of her house. Shortly afterwards he was in town drinking, spoke of going to see his "old gal" and of having sexual intercourse with some woman, and was further heard to say, "I expect to kill some d▬▬d woman, and have got money enough to carry me wherever I want to go." After his arrest splotches which had the appearance of blood were found on his clothes, but the tracks found near the place of the homicide did not correspond with the prisoner's foot. He made no attempt to fly:

Held, that the evidence was not sufficient to warrant a conviction of murder. Goodson, 107-798.

The prisoner, shortly before his arrest on the charge of murder, had been apprehended for an assault on his wife; on being arrested for murder he said he had already given bond and expressed surprise at being again arrested: Held, that this was not res gesta, and his declarations were incompetent. Moore, 104-743.

Evidence that the prisoner, near the time of the homicide, was engaged in a disgraceful quarrel with his wife, the deceased being present and partly the subject of the wrangle, and that prisoner then threatened to kill deceased, and was shortly thereafter seen to follow her in the direction of the place where the mortal blow was given, is competent against him to show motive and opportunity. Ib.

Where the prisoner killed deceased on account of alleged improper intimacy between deceased and his sister, a letter written by deceased to the prisoner's sister on the night before the homicide, but which was never received by her, is incompetent to prove any fact stated by deceased prior to his death, or to show the state of the affection of deceased toward her, and that he intended to marry her. Shields, 90—687.

When the crime is shown to have been committed by a single person and the question is one of identification, it is competent to prove that another than the accused did the act; but this must be done by proof direct to the fact, and not by admissions or conduct seemingly in recognition of it. Gee, 92-756.

A witness who does not know the reputation of the accused, who was once a slave, may state what his former master said of him. Ib.

Where the officer making the arrest is accompanied by two large, strong men, unarmed, and the prisoner is a small, weak man, and no threats of violence are used and no inducements held out, the confessions of prisoner under such circumtsances can not be excluded on the ground that he was put in fear by force and numbers. Howard, 92-772.

When the evidence is that the prisoner and deceased had gone into a barn together, a witness who passed the barn soon afterwards can testify to a conversation overheard between persons in the barn, although he does not know the prisoner's voice, and can only identify the voice of deceased. Ib.

In case of a conspiracy, evidence of the acts and declarations of one of the conspirators in furtherance of the common purpose, is competent, though made in the absence of the others. Anderson, 92-732.

Evidence of the acts and declarations may be admitted, in the discretion of the court, before proof of the conspiracy, the state undertaking to prove it at a later stage of the trial. Ib.

Evidence that the prisoner did not escape jail when he had opportunity to do so is not competent. Wilcox, 132-1120.

The declaration of a conspirator, at the time of the homicide, who was in close proximity to, but not within sight of the prisoner, upon hearing a pistol shot, that the prisoner had killed some one, is admissible in evidence. Ib.

Where a conspiracy is alleged between a person and the prisoner to take possession of a mine, in doing which the homicide took place, the declarations of such person, when setting out to take possession of the mine, as to his motives in doing so, are not competent for the prisoner. Ib.

Evidence is competent to show that the prisoners had bad feeling against deceased on account of some disputed accounts. Gooch, 94-987.

Evidence is not competent on the part of the prisoners that deceased kept false accounts with other persons. Ib.

Evidence that the deceased bore malice toward the prisoners is incompetent. Ib.

Evidence of the moral character of the deceased is irrelevant unless it is to show that he was a violent man, and it is only competent then when the evidence of the homicide is wholly circumstantial, and the character of the transaction is in doubt; or when there is evidence that the killing is done in self-defense. Ib.

Where there are several witnesses and the testimony is conflicting, it is error for the court to single out a single witness who is contradicted by others, and charge the jury that if they believe the testimony of such witness, then the prisoner was guilty of murder. Rogers, 93-523.

Testimony evoked on cross-examination by a prisoner can not form the ground of an exception, especially where it is immaterial and in no view prejudical to the prisoner. DeGraff, 113-688.

A witness may testify that he made the same statement to others before going on the stand, but can not tell other things said in the same conversation, which were not brought out on the first examination. Speaks, 94—865.

Where a prisoner is accused of murder by poisoning with strychnia, it is competent to show that he bought some of the drug the previous year. Cole, 94-958.

Where an assault is made at the same time upon two persons, one of whom is killed, it is competent for the survivor to testify to the character and nature of the wounds inflicted on him. Gooch, 94-987.

Where the homicide is committed with a knife, and the prisoners offer evidence that one of them did not have a knife on the day of the homicide, it is competent for the state to show that both prisoners were seen together shortly before the homicide, and that one of them did have a knife. Ib.

There was evidence tending to show that the wound by which the deceased came to his death was inflicted by a coupling-pin; that a man, like the prisoner, had been seen the night of the homicide to drop out of his pocket a piece of iron about the length of a coupling-pin, which he wrapped in a white cloth, and that something like iron rust was afterwards found on the handkerchief in his pocket: Held, that evidence that the coupling-pin was found near the house where the prisoner boarded was admissible. Brabham, 108-793.

The evidence established a strong chain of circumstances tending to show that the prisoner killed his wife by choking her and then throwing her in the river, and there were appearances of a struggle on the bank near where the body was found: Held, no error to instruct the jury that if the killing was established, the crime was murder or nothing. Jones, 98-651.

Evidence that a gun found in prisoner's possession after the shooting, had belonged to a witness, and had been lost two years before the shooting when the prisoner worked for the witness, if error, is harmless. Dixon, 131-808.

On trial for murder, a witness testified that immediately after the fatal shot he heard a voice say, "I have got one of the damned rascals," and recognized the voice as that of one of the prisoners: Held, that a declaration of the witness, made soon after the killing, that he "knew the prisoner killed deceased," was competent as in corroboration of the statement made on the stand. Brewer, 98-607.

The evidence tended to show that one of the prisoners fired the fatal shot from an upper window late at night: that the other two prisoners, on the approach of deceased and his friends, went up-stairs with their comrades, some of them having pistols; that the firing immediately commenced, and that the prisoners were making a common cause: Held, no error to refuse to charge that there was no evidence to go to the jury that the two were present in the room when the shooting was done. Brewer, 98–607.

The evidence tended to show that the prisoner had slight motive to kill deceased, and that he had made indefinite threats against him; that his tracks were seen as if going from the place where the body of deceased was found toward the house from which he was taken, but the tracks were not measured, nor did it appear that the prisoner's feet were at all peculiar, nor did the witness say why she knew the tracks were his. On the night of the homicide the prisoner was in the house with others and appeared to be uneasy and anxious, and exclaimed without apparent cause, "Great God! boys, I'm going to leave this country." He gave no reason for this exclamation, and next morning he demanded the wages due him and seemed anxious, but did not fly: Held, that the evidence was insufficient to be submitted to the jury. Brackville, 106-701.

It is not error to permit a witness who arrested defendant to testify that on the way to the guard-house defendant asked witness to shoot him, and seemed furious. Jacobs, 106-695.

Pending the trial, the prisoner was placed in the asylum upon a verdict that he was insane, but was afterwards put on trial and pleaded "not guilty," and there was some evidence that the insanity was feigned: Held, that it was not error to permit the state to ask the prisoner, who was examined as a witness in his own behalf, "why he played off crazy." Pritchett, 106-667.

In such case it was not error to permit the superintendent of the asylum to testify as to the mental condition of defendant while in the asylum. Ib.

On a trial for murder, there was much evidence as to whether the ball extracted from the body of the deceased was a 32 or 38 calibre. Defendant proposed to prove that another person, who was arrested with him shortly after the homicide, sent by witness and got his pistol which was a 32 calibre; that defendant also sent witness and got defendant's pistol which was a 38 calibre, and also proposed to prove by the witness what was said and done at the coroner's inquest in respect to the two pistols: Held, that

such evidence was incompetent, since it tended only very vaguely and indirectly to show that another person killed deceased, and evidence in such cases must be direct to the fact. Pritchett, 106–667.

The evidence was that deceased was probably slain while chasing a hog, and to connect the prisoner with the homicide the state was allowed to prove a declaration by her that "the hog was bruised, and when salted down after it was killed was nice, clean meat, but that when she put it in warm water, it would look like clotted blood:" Held, that such testimony, standing alone, is irrelevant. Mikle, 81-552.

After proof that the deceased kept money about him and was robbed on the night of the murder, the declaration of the prisoner, made twelve months before the homicide, to the effect, "Don't you reckon if any one was to run in on old man Autrey (the deceased), he would get a handful of money?" is competent against him as tending to fix him with a knowledge of the reputation that deceased kept money in his house. Howard, 82-623.

Evidence that gun wadding found at the place of the shooting contained a part of the same matter as the pages of a magazine, a copy of which was found at the prisoner's house with two pages torn out, is competent. Dixon,

131-808.

Evidence tending to show improper relations between the prisoner and the wife of the deceased is competent. Dixon, 131-808.

Statements made by a witness for the defense before the coroner's inquest are competent to contradict such witness on the trial. Dixon, 131-808.

Where the testimony is entirely circumstantial, evidence that the prisoner I went to the room of witnesses about 12 o'clock on the night of the homicide; which was about one hour after it occurred; that his actions there were unnatural, that he spoke hurriedly and in a low tone, and that his hand trembled and he seemed nervous, when taken in connection with the other facts tending to show defendant's guilt, is competent. Brabham, 108-793.

The rejection of competent testimony is not ground for a new trial when the record shows that afterwards the rejected evidence was admitted. Anderson, 101-758.

On trial for murder, the evidence showed that the prisoner and his brother went to the house of deceased (their father) in his absence; that prisoner complained to deceased's wife of the conduct of a younger brother and threatened to whip him, and expressed bad feelings towards the father; that he and his brother then sharpened their knives, and the brother said, "Some one will be surprised to-night," to which prisoner assented; that afterwards, when the father arrived, a quarrel began between him and the prisoner, a fight ensued in which the father was killed by a stab; the evidence as to the circumstances of the fight and whether the prisoner acted in self-defense was conflicting, and it further appeared that he uttered heartless expressions towards his father after the fatal blow: Held, (1) that the declaration of the brother to the prisoner while sharpening their knives was competent; (2) that a charge that if the provocation was slight and the prisoner used excessive force he was guilty of murder was correct. Ellis, 101-765.

Where three persons are jointly indicted for murder and one of them joins the state in the prosecution of one of the others, it is not error to receive evidence introduced by the first against the second, though such evidence also implicates the third, when the court instructs the jury that they must consider the evidence only as against the second and not as against the third. Collins, 70-241.

Where a witness states on cross-examination that she "did not tell Mrs. L on the day of the homicide that the deceased was sitting up, and she did not think he was hurt as bad as he pretended to be," the state calling out

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