In cases of circumstantial evidence the facts, their relations, connections and combinations should be natural, reasonable, clear and satisfactory; and such evidence, when relied upon to convict, should be clear, convincing and conclusive in its connections and combinations, excluding all rational doubt as to defendant's guilt. Brackville, 106—701.

MOTIVE. It is never necessary to show a motive for the commission of a crime, but where the prosecution relies upon circumstantial evidence it is competent to introduce evidence tending to prove a motive. Green, 92-779. Circumstantial evidence is of two kinds, consisting either of a number of consecutive links, each depending upon the other, or a number of independent circumstances all pointing in the same direction. In the former case each link must be complete in itself, and the resulting chain can not be stronger than its weakest link, while in the latter case the individual circumstances are compared to the strands of a rope, where no one of them may be sufficient in itself, but all together may be strong enough to prove guilt beyond a reasonable doubt. Austin, 129–535.

Where circumstantial evidence is relied on every fact must be established beyond a reasonable doubt. Flemming, 130–688.

In some cases each circumstance depends upon the preceding one in which case the evidence may be likened to a chain which is no stronger than its weakest link; but ordinarily the circumstances accumulate, each one by itself being of no great weight, but like the bundle of twigs in the fable, or its several strands twisted into a rope, becoming, when united, of great strength. Shines, 125-731.

Where the evidence is circumstantial it is competent to show malice by his own acts and declarations. Gailor, 71-88.

If the facts form a series of dependent circumstances, each of which is essential to the continuity of the chain, then if any link in the chain of circumstances is wanting, the defendant is entitled to an acquittal, but where a number of independent circumstances are relied upon, one or more may be thrown out without impairing the integrity or strength of the chain, and in such case all that is necessary to convict is that enough remain to satisfy the jury beyond a reasonable doubt. Frank, 50-387.

8. Co-DEFENDANTS.

DEFENDANT A WITNESS AGAINST HIS CO-DEFENDANT.-A defendant, jointly indicted with another, is competent and compellable to testify against his co-defendant. Smith, 86-705.

The practice of sending co-defendants to the grand jury to testify against each other, while allowable, is not commended. They may be compelled to so testify unless their evidence tends to criminate themselves. Frizell, 111– 722.

Declarations of one of two defendants jointly on trial are admissible only as against the party making them, and, if admitted, it is error not to instruct the jury that such declarations are incompetent as to the other defendant. Collins, 141–667.

Where defendants testify in their own behalf, it is error to instruct the jury that they have "the right to scrutinize closely the testimony of the defendants and receive it with grains of allowance on account of their interest in the event of the action," without adding that, if they believed the witnesses to be credible, then they should give to their testimony the game weight as the evidence of other witnesses. Holloway, 117-730.

Where, on the trial of four defendants indicted for an affray, three of them testified, and the fourth, their antagonist, was called in his own behalf, the other defendants had the same right to impeach him on cross-examination as though he had been a witness instead of a co-defendant. Goff, 117–755.

Where two or more persons are on trial under one indictment they are competent and compellable to give evidence for or against each other. Rose,

61-406.

9. COLLATERAL MATTERS.

ANSWERS AS TO COLLATERAL MATTER CONCLUSIVE, EXCEPTION.-The answer of a witness on cross-examination to collateral questions is conclusive, except "as to matters which, although collateral, tend to show the temper, disposition and conduct of the witness in relation to the cause or the parties." Following State v. Patterson, 2 Ired., 346. Ballard, 97-443.

Where a witness for the state is asked on cross-examination if the prosecutor has not paid him for coming from a distant state to be a witness, and he answers that he has not, defendant may introduce witnesses to prove his declaration that he had been so paid. Collateral matters which tend to show the temper, aisposition or conduct of the witness towards the cause or the parties are exceptions to the rule which treats answers to collateral matters as conclusive. Patterson, 24 (2 Ired.), 346.

It is not competent to ask and elicit an answer to a question collateral to the issue in order to prove it false and thus impugn the credit of the witness. Glisson, 93—506.

Answers given by a witness to such collateral questions as are put for the purpose of showing his temper, bias or conduct, are not conclusive, but may be contradicted. Kirkman, 63–246.

10. COLLATERAL OFFENSE.

It is only when the transactions are so connected or contemporaneous as to form a continuing action that evidence of a collateral offense will be heard to prove the intent of the offense charged; hence in the trial of an indictment for burning a dwelling-house occupied by the defendant as lessee, evidence that the defendant at a prior time was guilty of a similar offense, is inadmissible. Graham, 121-623.

On indictment for false pretense it is competent to prove other similar transactions by the defendant in order to show the scienter. Walton, 114783.

It is only when the transactions are so connected or contemporaneous as to form a continuing action that evidence of a distinct substantive and collateral offense will be admitted to prove the intent with which the offense charged was committed. Jeffries, 117-727.

Other criminal acts may be proved if they are connected with the one charg ed. Mace, 118-1244.

On indictment for uttering counterfeit money evidence may be received of former acts and transactions which tend to bring home the scienter to the defendant, notwithstanding such evidence may fix upon other charges than that on which he is tried. Twitty, 9 (2 Hawks), 248.

The collateral offense to prove the intent must be confined to a time before, or just about the time, the offense charged against the defendant is alleged to have been committed. Jeffries, 117-727.

It is a rule of evidence, subject to few exceptions, that evidence of a distinct substantive offense can not be admitted in support of a charge of another offense; therefore, on a charge of larceny of money given to the prosecutrix by defendant it was error to admit evidence that defendant had seduced her under a promise of marriage, such evidence not showing that he had been compelled to give her the money on account of the seduction. Nor in such case was evidence admissible as to defendant's inability (he being a married man) to make good his promise of marriage. Frazier, 118-1257. Evidence of another and distinct crime is competent to show scienter, to make out res gesta, or to show a chain of circumstantial evidence of guilt in respect to the act charged. Adams, 138-688.

11. COMPETENCY OF WITNESSES.

Sec. 290 (1628). Not incapacitated by interest or crime.

No person offered as a witness shall be excluded by reason of incapacity from interest or crime, from giving evidence either in person or by deposition, according to the practice of the court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit or proceeding, civil or criminal, in any court, or before any judge, justice, jury or other person having, by law, authority to hear, receive and examine evidence; and every person so offered shall be admitted to give evidence, notwithstanding such person may or shall have an interest in the matter in question, or in the event of the trial of the issue, or of the suit or other proceeding in which he is offered as a witness. This section shall not be construed to apply to attesting witnesses to wills.

Code, ss. 589, 1350; C. C. P., c. 342; 1866, c. 43, ss. 1, 4; 1869-70, c. 177: 1871-2, c. 4.

Sec. 291 (1636). Husband and wife witnesses.

In any trial or inquiry in any suit, action or proceeding in any court, or before any person having, by law or consent of parties, authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as herein stated, be competent and compellable to give evidence, as any other witness on behalf of any party to such suit, action or proceeding. Nothing herein shall render any husband or wife competent or compellable to give evidence for or against the other, in any criminal action or proceeding (except to prove the fact of marriage in case of bigamy), or in any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery (except to prove the fact of marriage), or in any action or proceeding for or on account of criminal conversation. No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage.

Code, s. 588: C. C. P., s. 341; 1866, c. 40, s. 2.

HUSBAND COMPETENT WITNESS AGAINST WIFE, WHEN.-A husband is a competent witness against his wife on indictment against her for assault and battery in striking the husband with an axe, since the use of such a deadly weapon indicates malice. Davidson, 77-522.

The husband or wife of the defendant is a competent witness for the defendant in all criminal proceedings, but neither is competent or compellable to give evidence against the other. Harbison, 94-885.

AFTER DIVORCE.-A divorced husband is incompetent to testify against the divorced wife as to acts of adultery which occurred prior to the divorce. Raby, 121-682.

DEFENDANT VOLUNTARILY TESTIFYING.-Where a defendant is called by his counsel and sworn and examined as a witness he will be deemed to be exercising his right to testify under this section, and will be deemed to have waived the caution prescribed in section 1145 of The Code. Hawkins, 115–712. MARRIAGE-INDIANS COHABITATING.-Cohabitation between an Indian man and woman according to the ancient customs of their tribe, which leave the parties free to dissolve the connection at pleasure, is not marriage, and, therefore, the parties to such relation may be compelled to testify against each other. Ta-cha-na-tah, 64-614.

On indictment for fornication and adultery the husband of the fome defendant is a competent witness against her to prove her marriage to him. McDuthie, 107-885.

On indictment for bigamy the first wife of the defendant is a competent witness to prove the marriage, public cohabitation as man and wife being public acknowledgment of the relation, and not coming within the nature of the confidential relations which the policy of the law forbids either to give in evidence. Melton, 120-591.

Sec. 292 (1634). Defendant competent in criminal actions; husband or wife competent for defendant.

In the trial of all indictments, complaints or other proceedings against persons charged with the commission of crimes, offenses and misdemeanors, the person so charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him. The husband, or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant; but the failure of such witness to be examined shall not be used to the prejudice of the defense. But every such person examined as a witness shall be subject to be cross-examined as are other witnesses. Code, s. 1353; 1881, c. 89, s. 3; 1881, c. 110, ss. 2, 3.

DEFENDANT CRIMINATING HIMSELF.-Where a defendant offers himself as a witness in his own behalf he waives his constitutional privilege of refusing to answer self-criminating questions. Thomas, 98-599.

Where defendant testifies in his own behalf he waives his constitutional right not to answer questions which tend to criminate him. Allen, 107

805.

WIFE OF ONE DEFENDANT WHERE TWO ARE INDICTED.-On indictment against two persons for an affray, the wife of one of them is not a competent witness for the other defendant. Harbison, 94-885.

ATTORNEY AND CLIENT.-One charged with a crime, who turns state's witness against his associates, under an assurance that his disclosures are not to be used against him, may be cross-examined as to what he told his counsel about the offense while he was himself charged, since he testifies with the express understanding that he is to disclose his own guilt, and the rule which excludes communications betwen attorney and client no longer applies. Condry, 50 (5 Jones), 418.

Sec. 293 (1635). Defendant in criminal actions not compellable to give evidence against himself; nor husband or wife against the other. Nothing in this chapter, except as provided in the preceding section, shall render any person, who in any criminal proceeding is charged with the commission of a criminal offense competent, or compellable, to give evidence against himself, nor shall render any person compellable to answer any question tending to criminate himself, nor shall in any criminal proceeding render any husband competent or compellable to give evidence against his wife, nor any wife competent or compellable to give evidence against her husband: Provided, that in all criminal prosecutions of a husband for an assault and battery upon the person of his wife, or for abandoning his wife, or for neglecting to provide for her support, it shall be lawful to examine the wife in behalf of the state against the said husband.

Code, s. 1354; 1856-7, c. 23; 1866, c. 43, s. 3; 1868-9, c. 209, s. 4.

WIFE A WITNESS BEFORE GRAND JURY.-The fact that defendant's wife went before the grand jury does not invalidate the bill, if there were other competent witnesses before the grand jury, since the court will not enter into a barren inquiry as to how far such incompetent witness contributed to the finding of the bill. Coates, 130-701.

But if the bill has been found upon the testimony of a single witness who is incompetent it must be quashed. Fellows, 3—340.

RULING OF JUDGE FINAL.-The ruling of the judge upon the question as to whether a witness has sufficient intelligence to testify is conclusive. Perry,

44-330.

12. COMPETENT EVIDENCE EXCLUDED.

Error in excluding testimony which is competent for the purpose of impeachment can be remedied only by a venire de novo, though the facts excluded may have been subsequently brought out by other witnesses. tinguishing State v. Ballard, 97-443. Clark vs. Clark, 65–655. Goff, 117

755.

Dis

While error in excluding competent testimony is cured by afterwards admitting it from the same witness, it is not cured by admitting another witness to testify to the same purport. Rollins, 113-722.

Error in the admission of incompetent testimony is cured by its subsequent withdrawal and a direction to the jury that they must neither consider it nor give it any weight in making up their verdict. Apple, 121-584.

If evidence is erroneously excluded the error is not cured by admitting the same testimony from the prisoner himself and from other witnesses at a later stage of the trial. Exum, 138-608.

Where evidence offered is excluded because incompetent at the time, but becomes competent at a later stage of the trial, it is the duty of the defendant to offer it after the development of the trial makes it competent, otherwise its exclusion at first is not error. Exum, 138–600.

13. CONFESSIONS.

What amounts to such threats or promises as render confessions inadmissible as being not voluntary; what evidence the judge will hear to establish the facts of threats or promises; and whether there be any evidence to show that the confessions are not volnntary are questions of law, and the decisions upon them are subject to review in the supreme court.