man going in the direction in which he was afterwards killed; that he had a gun and was disguised. All the searching party were armed with shotguns. They proceeded in the direction indicated by Cy as having been taken by Sanders, when they reached a thicket which he was seen to enter, and through which there ran a ditch from north to south. They stopped and sent Cy to the head of the ditch to look down it. Defendant went further down the ditch, and, after he had gotten about 30 yards below Cy, he slipped into the ditch; and he stated that at that time he heard something like the popping of a gun cap directly between him and Cy, and when he looked up he saw deceased lying in the ditch with a gun pointed at him, and that he heard the click of a gun lock, when he fired both barrels of his gun, and jumped out of the ditch. He then saw deceased's gun pointed towards Cy, and said to Cy, "He is going to shoot you. Shoot him,"-when Cy fired both barrels of his gun, and deceased was then found to be killed. Cy was examined before the coroner's jury, on a habeas trial, before the grand jury, and in the circuit court, where he made statements substantially as above set out. On the trial, after he had been examined and cross-examined, he was brought on the stand the next day by the state, and made statements wholly different from any made before. On the trial, Cy was asked by defendant if Mr. Rucker did not ask him, as soon as he shot, why he shot, and if he did not reply that, "instead of holding up his hands, he [deceased] was trying to shoot him," which Cy denied.

When defendant

was being examined, he was proceeding to state this conversation, when the district attorney objected, and the court sustained the objection, and defendant excepted.

Tho. Spight and John Y. Murray, Jr., for appellant. Frank Johnston, Atty. Gen., for the State.

WOODS, J. All assignments of error are without avail, save one, and for this error we are constrained to reverse the judgment of the court below. On the cross-examination of the state's witness, Cy Rucker, the predicate was properly laid for the introduction of evidence to contradict his statement as to what was said by him in response to an inquiry made by C. C. Rucker of him (the witness) as to why he shot at the deceased, immediately after he fired his gun. The matter on which it was sought to contradict was material. The conflict between the state's witness and the accused as to the circumstances attendant upon Cy's shooting was direct and violent. The state's witness testified that he shot under compulsion, and to save his own life from threatened injury at the hands of the accused. This evidence of Cy was contradicted flatly by the prisoner's testimony, and, for the purpose of discrediting Cy, the foundation was laid, on his cross-examina

tion, for the introduction of the contradicting statement said to have been made by him at the time of the commission of the homicide. This impeaching evidence was competent, and the serious difficulty which confronts us is as to the manner in which it was sought to be introduced. The impeaching witness was to state, in general terms, what was Cy's answer when C. C. Rucker asked him what he (Cy) shot for. The witness was asked to state what Cy said, without repeating to him in terms the question which had been put to Cy in the laying of the predicate for his impeachment by the introduction of his contradictory statements made out of court. The question to be determined is, was the general interrogation propounded to the impeaching witness the proper method of examination, or should the question have been put in the words employed in cross-examining the witness sought to be discredited? To state it in simpler and clearer form, should leading questions be permitted to be propounded by counsel to his own witness, who has been introduced to impeach an opposing witness by showing that such adverse witness has made other and contradictory statements touching the material point to which he testified? The question must be answered, generally, in the negative, and for several reasons: If the discrediting witness be really in possession and having memory of the particular contradictory statements supposed to have been made, and as to which he is called to testify, it will be quite enough to direct his attention to time, place, and person, and the subject of the conversation in which the contradiction is thought to be found, and then ask generally what the witness sought to be discredited said. If he be truthful and of ordinary memory, this course of examination will be sufficient, usually, to secure the desired evidence. If he be untruthful, or without clear recollection, this course of examination will result in nothing, as, indeed, in such case it should. But, again, the indulgence in leading questions of the character we are considering, where the very words are put into the impeaching witness' mind and mouth, suggests to the party's witness exactly what answer is desired by counsel, and what is necessary for him to say in order that the side calling him may put down a hurtful witness of the adversary party. As has been strikingly said, this method of examination supplies the forgetful witness with a false memory, and a lying witness with a ready answer. And it is painfully unjust to the witness sought to be impeached to permit his veracity to be assailed, not by the clear and unaided evidence of a competent and trustworthy person speaking his own mind and from his own memory, but by a dull or a willing tool, dexterously supplied with evidence, furnished him ready-made, in the form of leading questions. To us it seems clear that the reasons for denying to a party the right to lead his own witness are of vigorous force

in the very instances we are considering. There can be no danger of failure of justice in any case by pursuing the ordinary and approved course of examination, and primarily ask the impeaching witness what the other witness said, and not ask him whether the other said any particular words, or used such and such language. See Allen v. State, 28 Ga. 395; Gould v. Lead Co., 9 Cush. 338; 2 Phil. Ev. c. 1, § 10. Greenleaf, in his invaluable treatise on Evidence, states the exception to the general rule as we have laid it down, as follows: "In some cases, however, leading questions are permitted, even on direct examination, namely, *

* where

the mind of the witness, from the nature of the case, cannot be directed to the subject of the inquiry without a specification of it; as, where he is called to contradict another as to the contents of a letter which is lost, and cannot, without suggestion, recollect all its contents, the particular passage may be suggested to him. So, where a witness is called to contradict another, who had stated that such and such expressions were used, or the like, counsel are sometimes permitted to ask whether those particular expressions were used, instead of asking the witness to state what was said." 1 Greenl. Ev. 569, 570. For the refusal of the court below to permit the defendant to answer the general question, "What did Cy answer when your father asked him what he shot for?" we are forced to reverse the case, and award a new trial.

The accused has no ground to complain of the instructions. The law was most liberally charged on his behalf. The deceased was not an escaped felon, and he was entitled to exercise the right of self-defense, even if he had fled and attempted to conceal himself from armed persons pursuing him for an offense he never committed. Grant that he was, or had been, unlawfully engaged in the manufacture and sale of distilled liquors, and that he had escaped from confinement in the county jail on conviction for a misdemeanor; this defendant and his armed fellow pursuers were not aware of these small offenses, and they were not hunting him down to arrest him for these things. What these incidents and events had to do with the killing of the man it is difficult to conjecture. They were illustrative of timorous conduct in fleeing and hiding himself from his pursuers in the ditch where he met his miserable death, but we are perplexed to conceive in what way they shed light on the conduct of the accused. The instructions, too, which left it broadly to the jury, on the evidence offered on the point, to say whether the prisoner did not have an honest belief that the deceased had committed a felony, was most favorable to the accused under the facts in proof, seeing no inquiry was made by the accused, before the armed pursuit of the deceased was begun, of the Kellys, father and son, or any other person known to the accused, as to who fired on his brother in the road at Kelly's

house early that morning, but the deadly chase of the hunted old man was begun on the false statement of the drunken youth who had actually fired that shot. The consideration of the question of the diligence, or want of diligence, shown by the prisoner in seeking to ascertain the person who had fired upon his brother before taking up the armed hunt for the supposed felon, who might readily have been seen to be no felon, was wholly overlooked. The instructions, too, which overlook, not to say, by implication, deny to the dead man the right to defend himself against armed pursuers, whose avowed purpose was to arrest him and carry him before a magistrate for an offense he had not committed, and for which he had no reason to believe he was being hunted, these pursuers armed with deadly weapons, persistent in their chase, and under circumstances, as detailed by the state's witness Cy Rucker, well calculated to arouse the liveliest apprehensions of danger in the mind of deceased, these instructions are not to be complained of by this defendant. Reversed and remanded.

BILES v. DEAN et al. (Supreme Court of Mississippi. Dec. 18, 1893.) WILLS-CONTEST-"PERSONS INTERESTED"- WHO

ARE.

A person who takes more under a will than he would as heir is not a "person interested,' within Code, § 1822, authorizing such persons to contest a will probated without notice.

Appeal from chancery court, La Fayette county; B. T. Kimbrough, Chancellor.

Petition by Georgia D. Biles against R. A. Dean, executor of the will of Russel Dean, and others, contesting the validity of the will. Defendants were allowed to withdraw their answer to set up a plea of estoppel, and complainant appeals. Affirmed.

In October, 1889, Russel Dean died, leaving a will in which R. A. Dean, one of the appellees, was appointed executor. The will was probated in the chancery court of Marshall county. In May, 1893, appellant, Georgia D. Biles, who was one of the heirs of Russel Dean, filed her petition contesting the validity of the will, making the remaining distributees parties thereto. To this petition all of the defendants filed their answer. After the answer was filed, the defendants asked leave of the court to withdraw it, and to be allowed to file a plea of estoppel, setting up that under the will the said Georgia D. Biles became entitled to one-fourth of the real and personal estate of the decedent, while, if said testator had died intestate, or if said will be declared invalid, she would be entitled to only one-fifth thereof. From a decree allowing appellees to withdraw their answer and file said plea, complainant appealed.

W. M. Strickland, for appellant. Smith & Totten, for appellees.

COOPER, J. Counsel for appellant are mistaken in supposing that the plea of the defendants states that under the will of Russel Dean the appellant takes one-fourth of the personal estate, only, of the testator. The averment is that "under which will the said Georgia D. Biles became entitled to receive one-fourth interest of the estate, real and personal, of said decedent, while if the said testator had died intestate, or if said will be declared invalid, she would be entitled to only one-fifth interest therein.” Counsel are also mistaken in saying that the plea does not aver that appellant, in receiving distribution of the personal property, knew that such distribution was made under the will. The averment of the plea is that "the said R. A. Dean, as executor, has paid to the contestant, during the course of his administration, a fourth interest of the personalty of said estate, which she has received without protest as her distributive share of said personal estate, and which she claimed under said will she was legally entitled to receive." If, however, it be true, as alleged in the plea, that the appellant is entitled, under the will, to one-fourth of the estate of the testator, and would only be entitled to onefifth thereof if the will be disproved, we do not see how she can be said to be a "person interested," within the meaning of the statute (Code, § 1822)1 authorizing the contest. If she takes more under the will than she could without it, she has no interest to contest its validity. The order permitting the filing of the plea is affirmed, and the cause remanded.

LUCAS v. STATE.

(Supreme Court of Mississippi. Jan. 1, 1894.) MURDER-INDICTMENT-CONVICTION OF LESSER

OFFENSE.

Under an indictment for murder, drawn in accordance with Code 1880, § 3016, providing that it need not set forth the manner or the means by which the crime was committed, it is not permissible to convict for the offense of intentionally pointing a pistol, and accidentally discharging the same and killing deceased, provided for in Code 1892, § 969.

Appeal from circuit court, Coahoma county; R. W. Williamson, Judge.

"To be officially reported."

John D. Lucas was convicted of crime, and appeals. Reversed.

Appellant was indicted for murder, and tried in the court below. The jury brought in the following verdict: "Guilty under section 969, Code 1892, of intentionally pointing a pistol, and accidentally discharging the same, and killing, by such discharge, the de

'Code § 1822, provides that any person interested may contest the validity of a will probated without notice.

ceased." The defendant then made a motion to arrest the judgment because the indictment did not charge the murder of deceased by any act which could constitute the offense described in section 969, and because the offense of which the defendant has been found guilty is not a constituent offense of that charged in the indictment. This motion was overruled, and defendant appealed. Code 1880, § 3016, provides that in an indictment for homicide it shall not be neces sary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient to charge, on an indictment for murder, that the defendant did feloniously, willfully, and of his malice aforethought kill and murder deceased.

FitzGerald & Maynard, for appellant. Frank Johnston, Atty. Gen., for the State.

1. On trial of a claim to horses levied on as belonging to claimant's husband, testimony of the express agent by whom the money to pay for the horses was transmitted was incompetent to show title in the husband, when it was based on an entry of the money on the company's books in the husband's name, made with out the latter's direction.

2. Evidence that one of the horses was entered in the husband's name in the books of a fair association was properly excluded, when he did not appear to have been instrumental in having the entry made.

3. Declarations of the husband, made while the horses were in the possession of himself and wife, as to the ownership thereof, were admissible against those claiming under him.

Appeal from circuit court, Noxubee county; S. H. Terral, Judge.

"To be officially reported."

Claimant's issue between Charles E. Levy and F. M. Holburg to try title to horses levied on under an execution on a judgment against claimant's husband. From a judgment for claimant, Levy appeals. Affirmed.

In 1882 appellant obtained a judgment against Moses Holburg and others in the circuit court of Noxubee county. Execution was issued on this judgment in 1888, and levied on two horses, valued at $750, as the property of M. Holburg. Mrs. F. M. Holburg interposed a claim to the horses, and after several continuances a judgment was rendered against the claimant in February, 1891. This judgment was set aside by the

court, on motion of appellee, and a new trial granted. The case was again tried in February, 1893, and resulted in a verdict and judgment in favor of the claimant. From this judgment, Levy appealed, and assigned the following as error: The court erred in setting aside the former judgment and granting a new trial. The court erred in excluding the testimony of Tyson, and in permitting F. T. Scott to testify as to the conversation he had with defendant. The court erred in modifying the fourth and fifth instructions asked by plaintiff, and in refusing the sixth and seventh instructions asked by plaintiff. The following are the fourth and fifth instructions, as given, and the sixth and seventh, refused: "(4) If the jury believe from the evidence that, at the time the horses were bought, M. Holburg's note was given for them, and that they were purchased by, and then belonged to, M. Holburg, then, even if they believe that Mrs. F. M. Holburg's money was sent by express, and paid off that note for the horses, that did not affect the right or title of M. Holburg to the horses. The right or title to the horses could not be transferred by M. Holburg to Mrs. F. M. Holburg, as against plaintiff, except by written transfer acknowledged and filed for record. (5) The jury will take all the facts and circumstances into consideration, in determining whether the horses were bought for M. Holburg or not, and, if they believe from the evidence that they were bought for M. Holburg, then they became M. Holburg's horses, whether they were bought by him, in person, or Kohlman for him, by his direction; and in that case-that is, if the horses were bought by or for him, by his consent-it is immaterial whether the name of M. Holburg was signed to the note by himself or by Kohlman. (6) If the jury believe from the evidence that the money that was sent to pay for the horses was sent in the name of M. Holburg, they may take that circumstance into consideration, in determining whether it was his money or not. (7) If the jury believe from the evidence that in 1888, and before the levy, the horses were assessed as the property of M. Holburg, and that in 1889, and after the levy, they were assessed as the property of F. M. Holburg, they may take those circumstances into consideration, in determining whether they were M. Holburg's horses, or not, at the time of the levy."

Rives & Rives, for appellant. A. C. Boyle, for appellee.

WOODS, J. The action of the trial court in setting aside the verdict of the jury, and in awarding a new hearing, was not erroneous. The testimony of Phelps, the express company's agent at Macon, was incompetent. He showed that his entry of the money on his books in the name of M. Holburg was his own act, done without direction or suggestion from M. Holburg, or any one representing him.

To fix title, or to attempt to fix title, to the horses, in M. Holburg, by Phelps' action, was manifestly inadmissible; and this the court's action tended to do, on the first trial. But moreover, the overwhelming weight of the evidence preponderated in favor of Mrs. Holburg's claim of ownership. The opposing evidence consisted of a few inconclusive circumstances, and was not sufficient to support the verdict.

We find no reversible error in any of the rulings of the court on the final trial.

The testimony of J. A. Tyson was properly excluded. The witness only offered to show what the books of entries of the fair association showed as to the entry of one of the horses in the name of M. Holburg. He did not offer to show that M. Holburg had any instrumentality in having that entry made, and the evidence was properly ruled out.

The testimony of F. T. Scott was admissible. It showed the declarations of M. Hol. burg as to the title of the horses; and these declarations, thus made by the husband while the horses were in his possession, or rather in the possession of himself and his wife, as to the ownership of the property, are admissible against him, and against those claiming under him. They were declarations against his own interest, made by the husband when in possession of the property now sought to be subjected to payment of his debts as his property. Clearly, the declarations would have been admissible against M. Holburg himself, and to us it seems equally clear that they were properly admitted against his creditors claiming under him. Sharp v. Maxwell, 30 Miss. 589.

The action of the court on the charges was correct. The modifications of the fourth and fifth charges of plaintiff were harmless, and the refusal of the sixth and seventh charges of plaintiff was not error. It was simply a refusal of the court to point out and emphasize one segregated piece of evidence, and this we have more than once pronounced commendable. Affirmed.

HARRIS v. STATE. (Supreme Court of Alabama. Jan. 12, 1894.) LARCENY-INDICTMENT-INSTRUCTIONS.

1. An indictment charging that accused feloniously took and carried away a part of an outstanding crop of corn, the property of W., sufficiently alleges the thing stolen, the ownership, and the larceny.

2. A charge that if the jury believe the evidence they must find defendant guilty as charged is erroneous as failing to require belief beyond a reasonable doubt.

Appeal from circuit court, Marengo county; James T. Jones, Judge.

Frank Harris convicted of larceny of an outstanding crop, appeals. Reversed.

The indictment was in the following language: "The grand jury of said county charge that before the finding of this indict

ment Frank Harris feloniously took and carried away a part of an outstanding crop of corn, to wit, two ears of corn, the property of Arthur Walker, against the peace and dignity of the state of Alabama." The defendant demurred to this indictment on the following grounds: "First, said indictment fails to allege that the part of the crop stolen was the property of Arthur Walker; second, it fails to show what part of an outstanding crop of corn was stolen; third, it fails to aver of what the part consisted of the outstanding crop of corn that was alleged to be stolen; fourth, it fails to aver that the two ears of corn alleged to have been stolen were a part of an outstanding crop of corn." The court overruled this demurrer and the defendant duly excepted. The bill of exceptions shows that the only witnesses introduced were witnesses for the state, and their testimony tended to show that the defendant was guilty as charged in the indictment. Upon the request of the solicitor, the court gave the jury the charge copied in the opinion, to the giving of which charge the defendant duly excepted.

C. K. Abrahams, for appellant. Wm. L. Martin, Atty. Gen., for the State.

MCCLELLAN, J. The demurrer to the indictment in this case was manifestly bad, if not frivolous, and the court committed no error in overruling it. The charge given at the instance of the state was in these words: "Gentlemen of the jury, if you believe the evidence in this case, you must find the defendant guilty as charged in the indictment." This instruction was erroneous, in that it authorized and required a conviction though the jury may not have believed the evidence beyond a reasonable doubt. Pierson v. State, (Ala.) 13 South. 550; Heath v. State, Id. 690. The judgment of the circuit court is reversed, and the cause remanded.

NICHOLS v. STATE.

(Supreme Court of Alabama. Jan. 12, 1894.) CARRYING WEAPONS EVIDENCE - JUDGMENT EN

TRY.

1. There being evidence that at the time and place charged defendant did carry a pistol concealed on his person, he cannot show that at another place in the same town, and at some time near that charged, he had a pistol unconcealed.

2. Defendant having testified that he did have a pistol on his person, but in a scabbard, with the handle sticking out, where it could be seen, cannot be asked whether it could be seen by ordinary observation.

3. A judgment entry, merely reciting the return of verdict, assessment of fine by the jury, and confession of judgment by defendant and his sureties, shows no judgment as basis for an appeal.

Appeal from circuit court, Butler county; J. R. Tyson, Judge.

John J. Nichols, convicted of carrying a pistol concealed about his person, appeals. Dismissed.

The testimony for the state, which was only given by one witness, was to the effect that the defendant had a pistol concealed about his person. Upon the introduction of a witness in his own behalf the defendant undertook to prove that he saw the defendant have a pistol, at his house, during that term of the court, (the time specified by the state's witness,) and that it was not concealed; but that the witness could not fix any special day. The state objected to the introduction of this testimony, which objection the court sustained, and the defendant duly excepted. The defendant, in his own behalf, testified that he did have a pistol about his person at the time specified by the state's witness, but that it was carried in a scabbard, "with the handle sticking out, where it could be seen." The defendant was then asked this question: "Could the pistol be seen by ordinary observation?" The court sustained the objection to this question, and the defendant duly excepted. Upon the introduction of all the testimony the defendant requested the court to give the following charge, and duly excepted to the court's refusal to give the same as asked: "If, from the evidence in this case, there is a reasonable possibility of the defendant's innocence, you should acquit the defendant." The judgment entry only recited the making up of the issue and the return of the verdict of the jury finding the defendant guilty, and then, without adjudging the defendant guilty as found by the jury, the entry proceeded with the recital of the confession of judgment.

Gamble & Powell, for appellant. Wm. L. Martin, Atty. Gen., for the State.

MCCLELLAN, J. The inquiry being whether at a given time and place the defendant carried a pistol concealed about his person, and there being evidence tending to show that at such time and place he did carry a pistol concealed about his person, he offered to show that at another place in the vicinity, i. e. in the same town, during the same week, or rather "during that term of the court," the defendant had a pistol which was not concealed. This testimony was properly excluded. The fact that the defendant "had a pistol," it not appearing even that he had it "about his person," which was not concealed at one time and place, manifestly involves no tendency to show that he did not carry it concealed about his person at a different time and place. All that this testimony tended to prove was that the defendant then had in his possession a pistol which may not have been on his person at all; and we are not prepared to say that the testimony would have been evidence, even had it gone further, and shown that at the time in question the defendant carried the pistol openly about his person,