any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before the grand jury, or any court, so that if you believe that the defendant testified before the grand jury in this case and gave evidence with reference to the matters alleged in the indictment, then under the law, he is entitied to an acquittal, and the jury should return a verdict of not guilty." It is the contention of the appellant that this instruction given the state is erroneous because it authorized the jury to find the appellant guilty if they believed from a preponderance of the testimony that he did not testify to incriminating facts about himself before the grand jury. The state contends that, since the appel lant practically admitted the sale of liquor, then the only question at issue was what he testified before the grand jury, therefore the burden of proof rested upon him in this particular matter. case is not in point, but only discusses the question of the burden of proof. In the Bennett Case there was no testimony whatever introduced by the defendant relating to a divorce from his first wife. The court held that such a defense was an affirmative one, and it was not necessary for the state in the indictment to negative that fact, nor to prove the negative in making out its case in chief. For these errors, the judgment of the court below is reversed, and the cause remanded. Reversed and remanded. CAIN v. STATE. (No. 23955.) (Supreme Court of Mississippi, Division B. June 16, 1924.) (Syllabus by the Court.) 1. Criminal law 449(1)-Character of deceased with respect to peculiar trait Involved must be established by general reputation in community. In a trial for homicide, where the character of the deceased becomes pertinent, it must [3] It is true that this is an affirmative defense, and the burden of proof rests upon the defendant to prove it. When, however, he has introduced testimony to sustain this defense, he has met the burden of proof on this particular issue. The burden of proof, how-be established by the general reputation for the ever, in a criminal case always rests upon the state to satisfy the jury by testimony beyond all reasonable doubt of the guilt of the accused. And they must be satisfied beyond all reasonable doubt that the affirmative defense is not true. The legal question here involved is precisely the same as that relating to the construction of section 1105, Code of 1906 (Section 831, Hemingway's Code). Under that section a defense to carrying a concealed weapon is that "the accused was threatened and had good and sufficient reason to and did apprehend a serious attack from an enemy." That section expressly provides that the burden of proving this defense shall be on the accused. This court, however, has expressly held that an instruction is erroneous in a case of that kind which in effect states that the burden of proof rests upon the defendant to prove by a preponderance of the testimony that he apprehended an attack, etc. In those cases the court held that while the burden of proving this defense is upon the defendant, yet so long as there is a reasonable doubt of his guilt or his probable innocence, the state has not made out its case. Strother v. State, 74 Miss. 447, 21 South. 147; Garland v. State, 130 Miss. 310, 91 South. 210. peculiar trait involved in the community in which he lived, and a defendant will not be permitted to testify as to his personal opinion or estimate of the character of the deceased. 2. Homicide 169(8)-Rule stated as to admissibility of statements of deceased prior to killing. The statement of a person killed, made prior to the killing, not made in the presence of the defendant, is not admissible, unless they contain a threat, and in such trial the defendant is not entitled to show a stated purpose of the deceased to take his wife from him, nor that deceased did not regard the defendant favorably. 3. Witnesses 388(10)-Testimony in contradiction of witness, denying making of inconsistent statements, held admissible, though variant in some respects from predicate laid. Where a predicate is laid for impeachment of a witness, wherein two persons were named as being present and the time and place fixed. and the witness denies that one of the named parties was present, but recalls the time and place and other person present on that occasion, but denies making the statement, such witness may be contradicted by showing she made the alleged statement, although the contradicting witness testifies that only one of the persons named in the predicate was present at said time and place. 4. Criminal law 1172(1)-Lack of explicit. ness in meaning of instruction not necessarily reversible error; instruction as to reasonable doubt held not reversible error for lack of clearness. Under these decisions it was error to give this instruction for the state. And under them also it was error to refuse the above instructions requested by the defendant. In a criminal trial the instructions should The state relies upon the case of Bennett v. be clear and explicit, but it is not necessarily State, 100 Miss. 694, 698, 56 South. 777. This reversible error to give one not explicit in its (100 So.) meaning. The court will not reverse because the court below instructed for the state: "You are not required by the laws of this state to know the defendant is guilty of the crime charged against him before you can convict him, and you should not hesitate to find that he is guilty before you are able to say, outside of the evidence, that he might have been innocent," etc. Jones v. State, 130 Miss. 703, 94 South. 851; Harris v. State (Miss.) 99 South. 754, cited. 5. Criminal law 829 (2) Judgment not reversed for refusal to give the two reasonable theories instruction. In a criminal case, where the principles of law are fully given in the instructions given, the court will not reverse for the refusal to give what is known as "the two reasonable theories instruction" and this is especially true, where the evidence is from eyewitnesses, and not what is known as circumstantial evidence. doing the cooking for all of them and Holly furnishing the food. On the Saturday before the killing Holly took Mrs. Cain to Aberdeen for the purpose of her filing a bill against the appellant, Cain, for a divorce, and Holly paid the cash payment required on the fee by giving his personal check therefor. On the following day Holly took Mrs. Cain to a public gathering of some kind near the line between Lowndes and Monroe counties, and it seems that Cain was also at this gathering and tried to have a conversation with Mrs. Cain, his wife, who declined to talk with him. On the following day, Monday, Cain and a brother of his came down to near where the mill was in a car belonging to Cain's brother, where the brother stopped with the car, and Cain went on to the mill, and stood around the mill for some time, had a conversation with Brooks Stinson, his wife's son-in-law, and after a time went to Appeal from Circuit Court, Lowndes Coun- the house occupied by Mrs. Cain, and went ty; John D. Greene, Judge. H. L. Cain was convicted of manslaughter, and he appeals. Affirmed. in the house. When he went into the house, he found Mrs. Cain and one of her small sons and Mr. Holly in the room. Mr. Holly was sitting on a trunk, and Mrs. Cain was Owen & Garnett, óf Columbus, for appel- iying on the bed, being sick. According to lant. the boy who was present Cain came into the F. S. Harmon, of Jackson, for the State. house and looked first at Mr. Holly and then ETHRIDGE, J. The appellant, Cain, was Indicted for the murder of Lee Holly, and was convicted of manslaughter and sentenced to the penitentiary for a term of 17 years. The deceased, Lee Holly, and Mrs. Cain were formerly husband and wife, and by said marriage had three children, one daughter, who was married at the time of the killing, and two small sons. A few years before the killing Mrs. Cain, then Mrs. Holly, procured a divorce from Holly, the deceased, and some six months afterward married the appellant, Cain, and they lived together as husband and wife until a short time before the killing. She called to at Mrs. Cain, and back at Holly, and then Mrs. Cain went to visit her daughter, Mrs. Brooks Stinson, who was working at a mill in Lowndes county, Miss., where Lee Holly also lived, and where he operated a commissary. During the visit at her daughter's house Mrs. Cain decided to quit Mr. Cain and come and live with her daughter, and she and one of her small sons went back to the Cain home and procured her effects and moved them to Brooks Stinson's house. Stinson for some reason objected to Mrs. Cain moving back under the circumstances because she was the wife of Cain. Mr. Holly caused a house to be built near the commissary where he was working, and Mrs. Cain moved into the house so built and occupied it with one of her small sons, while Holly and another of her sons occupied the rear of the commissary as a room. But Holly and the two boys and Mrs. Cain all ate in the new house so built by Mr. Holly; she of the ax, but did not inflict fatal wounds For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "It was after he had done taken his wifetaken his wife away from him over to Lowndes county. with the blade of the ax. Stinson testified that he then asked Cain to let him take Holly to a hospital in the automobile. At first "Q. How long was it before the killing? A. Cain would not do so, using vile epithets with reference to Holly, but finally let Stin- It was Friday before the killing Monday. son place him in the automobile and take told Mr. Holly-I asked him-I said, 'Lee, what are you hanging around here for? You have him to a hospital, where Holly shortly after-done taken Cain's wife away from him, and wards died. During the trouble some one had gone to Ottley, who owned the mill, and he and another man came down in a car armed with a gun and arrested Cain and carried him to Jail. They said that Cain stated to them that he came down there to kill or get killed. Cain testified that he did not know that Holly was in the house, and that he went in, to see Mrs. Cain, and that when he came in that Holly made a movement as if to draw a weapon, and that he, Cain, shot Holly in selfdefense, believing he was going to draw a weapon; that Holly rose and grappled with him, and they went out of the house struggling together and fell, and while he was down with Holly on top of him that some one disarmed him; that he did not know what happened until just before striking Holly with the ax, when he saw Holly with a piece of a baseball bat, and he struck Holly with the ax in self-defense. Mrs. Cain was introduced, and testified in behalf of Cain, her husband, and contradicted her sons as to how the killing occurred, and contradicted them as to Cain attacking her and pursuing her with an ax. ining Cain the attorneys asked him: In exam "Q. Did you know his reputation for peace and violence (referring to Lee Holly, the deceased)? A. Yes, sir. "Q. Did you know whether he was considered a dangerous man or not?' The state objects to the form of the ques tion. "The Court: Yes. I it looks like you might tempt the man, and he is liable to hurt you and get you into trouble,' and I said, 'It looks like it is best for you to stay away from here.' "District Attorney: We object to that; it is a piece of advice from this gentleman to Lee Holly. "Appellant's Attorney: Go ahead, Mr. Irwin. "Witness: A. And he told me, 'I haven't had anything to do with Cain's wife'; and I said, 'No, Lee, you can't put that kind of stuff in me and make me believe it; you would not be hanging around here if you wasn't after something'; and he acknowledged to me that he was going to take Cain's wife, and she was going to sue for a divorce, and he was going to marry her-take her back. He said Cain was a damned cur; 'he will not hurt me; he will not do a thing; I ain't afraid of him.' "The District Attorney: I move to exclude the whole statement, for the reason that it is simply a piece of advice on the part of Rube Irwin, on the assumption that Lee Holly had taken Mr. Cain's wife away from him. "The Court: Yes, it will be excluded; I could not tell what he was going to say. "Appellant's Counsel: Your honor, please, you don't want to be heard on that at all? "The Court: No, sir. Gentlemen of the jury, you will not consider that testimony; that is excluded." Exception. [3] We do not think the statement was admissible. It appears simply to be an effort to inject into the case the so-called unwritten law. When Mrs. Cain was on the stand she was asked in reference to a conversation "The appellant's attorney asked what he with Mr. Ottley and Mr. Blewett at the bars thought of him as an adversary. "State's Attorney: We object to what he thinks of him personally. You can impeach a man's reputation in the usual way, but his personal opinion of him makes no difference. "Appellant's Attorney: It makes a difference when you have a difficulty with a man. "State's Attorney: I say not. "The Court: The objection is sustained." [1, 2] The refusal of the court to permit Cain to state what he thought of Holly as an adversary constitutes the first assignment of error. The personal opinion of Cain as to whether Holly was a dangerous man or not is not relevant. If he was a dangerous man that must be established by his general reputation in the community in which he lived. The defendant sought to prove by the witness Irwin a conversation with Holly with reference to Cain. In answer to the question: "Tell the jury what that conversation near Ottley's place, and she denied making the statement, and denied that Blewett was there at the time, but remembered the time and place and Ottley's presence. She was asked if she did not state in that conversation that Cain chased her with an ax at the time of the killing, and if she did not say in this conversation that she did not want Cain to get out for fear he would kill her, or something to that effect, which conversation she denied. Ottley testified, over objection, that she did state that Cain ran after her with the ax, and she asked him not to kill her, and that she did not want Cain to get out because he would kill her. The objection is made because the predicate was laid for a conversation with Ottley and Blewett when the statement testified to by Ottley was made when Blewett was not present. The witness remembered the time and place and the conversation with Ottley, but denied the specific statement to Ottley which Ottley testified that she made. She said that Blewett was (100 So.) object in stating the time, place, and per (No. 23607.) (Supreme Court of Mississippi. June 16, 1924.) (Syllabus by the Court.) sons present in such cases is to give the wit- MERIDIAN LIGHT & RY. CO. v. DENNIS. ness full opportunity to recall the conversation, if any, and the circumstances and be able to make any explanation of the conversation that may have occurred. The mere fact that Blewett was named as one of the persons present in the predicate when he is 1. shown not to have been present in the proof is not error in this case for the reason that the witness sought to be impeached remembered the conversation and the time and place and who was present. [4] The state asked and obtained instruction No. 6, which was also assigned for error, and which is as follows: "The court charges the jury, for the state, that in trying this case you should not hunt for doubts, with the view of finding any excuse or apology for your verdict, nor should you indulge in such doubts as are merely conjectural or chimerical; but the doubts which ought to make you pause and hesitate must be reasonable doubts, and they must arise out of the evidence, or for want of evidence in this cause. You are not required by the laws of this state to know the defendant is guilty of the crime charged against him before you can convict him, and you should not hesitate to find that he is guilty before you are able to say, outside of the evidence, that he might have been innocent, but, after carefully considering all the evidence in the case, if you believe beyond every reasonable doubt that he is guilty, you should discharge your duty fearlessly under your oath and under the law, and may say so by your verdict." The giving of this instruction, while not commended, is not reversible error. Harris v. State (Miss.) 99 South. 754; Jones v. State, 130 Miss. 703, 94 South. 851. A number of other instructions given for the state are assigned for error, and we have examined the instructions and the brief with reference thereto, and do not think that any error was committed. [5] The defendant complains that instruction No. 23 for the defendant was refused by the court. This instruction is what is known as the two reasonable theories instruction. The defendant procured quite a number of instructions, and had every principle of law applicable to the case presented to the jury. This is a case arising on the testimony of eyewitnesses, and presents to the jury the question of the veracity of witnesses, and is in no sense dependent on drawing inferences from admitted or proven facts where the two reasonable theories might or might not be entertained as to such inferences. Where the law is fully and clearly given, the court will not reverse for the refusal to give other instructions. We find no reversible error in the record, and the judgment will be affirmed. Affirmed. Master and servant 139-Motorman held not entitled to recover because of failure to provide for notice of turning on electric current. Where a street car was stopped on account of the electric current being shut off while a broken trolley wire was being repaired, and the motorman left the controller handle of the car in a forward position, or "in gear," and went forward to investigate the trouble, and, when the repairs had been completed, he received actual notice that the current would be turned on in a few moments, but did not return to his car, and the car started forward when the current was turned on, and the motorman was injured in endeavoring to board the car and shut off the power and apply the standing a few feet ahead on the same track, held that, since the injured motorman had actual notice that the current had been or would immediately be ordered on, no recovery for the injury can be had on account of any failure to provide à sufficient system of signals to notify employees when the current would be turned on. brakes so as to avoid a collision with a car 2. Master and servant 248-Motorman held not entitled to recover for injuries under doctrine of last clear chance. In such case no recovery can be maintained under the doctrine of the last clear chance, where the uncontradicted testimony clearly shows that the motorman on the front car used every possible effort to reach the controller of his car and move it forward after he discovered that the rear car was moving forward and the injured motorman was in a position of peril. 3. Master and servant 265(4)-Peremptory Instruction for defendant held required notwithstanding statutory presumption of negligence. Where all the facts and circumstances under which the injury was inflicted are fully disclosed by the evidence, the prima facie presumption of negligence created by section 1985, Code of 1906 (section 1645, Hemingway's Code), yields to the facts; and, where the uncontradicted evidence clearly exculpates the defendant of negligence in reference to the injury, a peremptory instruction for the defendant should be granted. Ethridge, J., dissenting. En Banc. Appeal from Circuit Court, Lauderdale County; J. D. Fatherree, Judge. Action by Sam R. Dennis against the Meridian Light & Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment rendered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Bozeman & Cameron, of Meridian, for ap forward, and when this reverse lever is in pellant. M. W. Reily, of Meridian, for appellee. COOK, J. This action is by Sam R. Dennis against the Meridian Light & Railway Company, appellant, for damages for personal injuries alleged to have been sustained by him while in the employ of the appellant company, and from a judgment in favor of the plaintiff for $7,500 the railway company prosecuted this appeal. The facts in this record, in so far as they are material to a decision of this case, are substantially as follows: neutral position the car cannot be moved forward; that this reverse lever and the controller handle may be removed entirely when the reverse lever is in neutral position; that when he left his car he did not remove either the controller handle or the reverse lever; that the reverse lever was left in a forward position, but he did not think he left the controller in a forward position, or in gear, to use a well-understood expression. He further testified that the electric current may be entirely cut off from the car by moving the handle of a switch which is located over the motorman's head in the vestibule of the car, or by removing the trolley from contact with the trolley wire, and that he did neither of these things. At the time of the injury the appellee was employed by the appellant as "barn man," which position he had held for three months, and previous to that time he had been em- The appellee further testified that he went ployed by the appellant as lineman and forward to a point near where the linemen trouble man. The appellee's duties required were repairing a broken trolley wire; that him to do the light repairs on cars, and when this repair was completed the superinother work around the barn, and also to act tendent of the company directed him to go to as motorman in carrying a car to the end of a telephone and order the employees at the the line each morning and afternoon for the power house to turn the power on; that he purpose of transporting other employees to went to a telephone and gave the order, and from their work, and also, when the but they refused to obey the order, for the occasion required, to run a car over the line reason that, under the rules of the company, of the railroad for the purpose of removing the power would be turned on only when broken trolley wires, rerailing cars, and ordered by the employee who had ordered it correcting other troubles. On the date of turned off; that he reported this refusal to the injury the appellee was directed to pro- the superintendent; that the superintendent ceed from the car barn to a place on the then went toward the telephone, and he, the street car line in the city, where a street appellee, went towards his car, which was car had been derailed, for the purpose of standing 60 or 70 feet away; that he stopassisting in rerailing the car. He took one ped about 30 feet away from his car, and of the street cars at the barn, himself acting talked for a minute or two with Mr. Rollins, as motorman, and proceeded toward the the motorman on the car which was standing place of derailment. When near the corner | immediately in front of his car; that when of Eighth street and Twenty-Third avenue he was 15 or 20 feet from his car he noticed the electric current on the trolley wire went off, and appellee stopped the car which he was driving by applying the brakes. There were two other street cars stopped on the track in front of appellee's car, the distance between the front car and the middle car being about 20 feet, and the distance between the middle car and appellee's car being es-tially applied the brakes, when his car timated at from 20 to 30 feet. The appellee testified that when he stopped his car he partially released the brakes, and left his car and went forward to find out the nature of the trouble ahead, leaving no one on the car. He further testified that he left the door to the vestibule of this car open; that there is located in this vestibule a controller through which the electric motive power is transmitted; that this controller has on it a metallic handle by the use of which the motorman operates the car; that this controller handle may be pushed to the right around a circle, and thereby the electric current will be turned on, while if it is turned to the left the current is entirely shut off; that there is also on this controller a reverse lever which must be placed in a for it moving forward; that he then ran to the door of his car, and, finding it closed, tried to get it open; that, failing in this, he ran around in front of the car and climbed upon the drawhead, and reached through the front window and shut off the controller by moving the handle into the neutral position, and par struck the car ahead, catching his leg between the cars and injuring him. The appellee further testified that his car was a light car about 25 feet long, while Rollins' car immediately ahead was a heavy, open, summer car, about 50 feet long; that when his car started forward Rollins was standing in the rear of this long car, and that when he (the appellee) ran to the door of his car Rollins ran toward the front end of his car, and that the speed of appellee's car constantly increased until he shut off the power and partially applied the brakes. For the defendant, Rollins, the motorman on the middle car, testified that when the power came on, indicated by the lights on his car coming on, the appellee was standing on the sidewalk some feet away from his |