such evidence is bound by it, and can not call Mrs. L to contradict the statement. Elliott, 68-124.

A witness may give the whole of a conversation which took place between him and the prisoner on the day after the alleged homicide, although in that conversation the witness, in answer to questions asked by the accused, expresses the belief, giving the reason for such belief, that the prisoner committed the homicide. Williams, 68-60.

Where a principal and an accessory are tried separately, though on the same indictment, evidence of the conviction of the principal is not admissible on the trial of the accessory unless judgment has been first rendered against the principal. Duncan, 28 (6 Ired.), 98.

Where the prisoner proves a sufficient legal provocation at the time to extenuate the homicide, it is not competent to prove, in order to show that the killing was not on the immediate provocation, but from previous malice, that the prisoner, a year or a month previously, had declared his intention to kill two or three men, it being admitted that he had no reference in such threats to the deceased as one of those men. Barfield, 29 (7 Ired.), 299.

Evidence tending to show that the prisoner had no unlawful purpose in going to the place of the killing is competent where the purpose in going is made by the charge of the court to show guilt. Hall, 132–1094.

The testimony of a grand juror that the prisoner was summoned before the grand jury while they were engaged in an inquiry as to the perpetrator of the homicide, and that the prisoner then charged another person with the killing, and betrayed unusual anxiety to fix it upon him, is competent. Broughton, 29 (7 Ired.), 96.

Evidence that prisoner's wife had been in the habit of committing adultery with the deceased, he not having caught him in the act at the time of the homicide, is inadmissible, because if admitted it would not extenuate the offense. John, 30 (8 Ired.), 330.

On indictment of a husband for killing his wife, the state has a right to prove a long course of ill treatment by the husband toward the wife for the purpose of showing malice. Rash, 34 (12 Ired.), 382.

Where the killing is charged to have been done with a piece of plank, evidence that a witness saw the deceased wearing a brown wool hat on the evening before the killing at night, and on the next morning after the killing he found strands of fine brown wool upon a stick which was picked up at the place of the homicide, and with which there was evidence tending to prove the killing was done, is properly admitted. Weddington, 103–364.

Proof that a written paper found near the body of the deceased had been given to the prisoner's son for the use of his father, is a sufficient ground to permit the paper to go to the jury, with instructions to disregard it unless satisfied that it actually came to the prisoner's possession. Arthur, 13 (2 Dev.), 217.

Declarations of a prisoner made after the commission of the alleged crime are not admissible in evidence for him, not even in support of insanity as a defense, unless they form a part of the res gesta to some act which is admitted in evidence. Vann, 82-631.

Where a person suspected of murder is arrested and brought before a jury of inquest as a witness and subjected to a rigid examination, such examination is not competent evidence against him on trial. Young, 60 (Winst. Law), 126.

After establishing the fact that the prisoner and deceased sold about 100 pounds of cotton in town on a certain day, and that on the way home they quarreled about a small sum of money which deceased alleged the prisoner owed him, and that the killing was done on the night of the same day, the state was allowed to prove by a witness that on the same night about mid

night he found that about 100 pounds of cotton had been stolen from his cotton house, that early next morning he found tracks there which he recognized as those of the deceased and the prisoner's wife, which were joined about twenty-five yards from the cotton house by the tracks of a man, but whose he could not tell, and that the tracks turned into a path leading toward the house of the prisoner. The theory of the state was that deceased and the prisoner were associated in the larceny of the cotton, and that the prisoner's motive to slay the deceased was to prevent his being a witness against him in the event he should be charged with the offense: Held, that the evidence as to the larceny of the cotton was incompetent, as being evidence of a collateral fact not sufficiently connected with the main issue. Brantley, 84766.

In order to show that the prisoner had a motive for killing deceased where the evidence is circumstantial, it is competent for the state to introduce the record of an indictment for larceny pending against the prisoner and others, and also to prove that the deceased was implicated in the same, but was omitted from the indictment for having turned state's witness. Morris, 84-756.

The statements of bystanders made immediately after a homicide has been committed, are not admissible in evidence. Dunlop, 65-288.

Evidence that deceased had difficulties with other persons is not competent. Sumner, 130-718.

Where three prisoners are on trial charged as principals or accessories, with the same offense, the declarations of one, not made in the presence of the other two, are evidence against him. Kilgore, 93-533.

Evidence that a third person had malice toward the deceased, a motive to take his life, if he had apportunity to do so, and had threatened to do so, is inadmissible. Lambert, 93-618.

In support of an allegation by the state that one of two prisoners on trial for murder killed the deceased in pursuance of a common design between him and the other prisoner, it was shown that some two or three months before the homicide, the prisoners M and H referred to deceased as "a damned rascal;" that on the day of the homicide the prisoner H had a quarrel with deceased in the presence of M; that after said quarrel and on the same day H declared in the presence of M that if deceased would fight with him he would kill him; that some hours later deceased, on his way home from the scene of the quarrel, stopped on the road in front of prisoner H's house and engaged in a contention with another party; that thereupon prisoners came out to the road, and H at once charged deceased with having sworn to a lie against him, and called to M to "step up" to deceased to prove it; that M did "step up" as directed, whereupon deceased knocked him down upon his knees, M crying out, "Boys, don't let him kill me:" that H then drew a pistol and said. "Take care, I'll shoot him," about which time M drew a knife and from his recumbent position gave deceased a fatal stab: Held, that such evidence was properly submitted to the jury as evidence of the common design alleged, and of malice on the part of both prisoners. Matthews, 80-417.

The declaration of a third party that he shot the deceased is inadmissible. Boon, 80-461.

Evidence that another person borrowed a pistol, saying deceased had shivered his arm and he was going to hunt him up, and that such person absented himself thereafter, and did not return until after prisoner had been convicted of the murder of deceased on a former trial, is inadmissible. Jones, 80--415.

Where the evidence is circumstantial, each circumstance must be as distinctly proved as if the whole case turned upon it and each circumstance so proved must, taken in connection with the other circumstances, tend to prove defendant's guilt. Messimer, 75-385.

Where the prisoner relies on insanity as a defense, but there is no evidence that he had ever exhibited any sign of insanity, evidence that some of his uncles and aunts were insane is inadmissible. Cunningham, 72-469.

On indictment of a mother for infanticide, it is error to permit a witness to relate a statement made by the mother of the prisoner in her presence that the prisoner had a child this way before and put it away," to which the prisoner made no reply. Shuford, 69-486.

Defendant was charged with causing the death of one G by screwing down the safety valve of a boiler of which G was fireman, thereby intentionally causing an explosion which resulted in the death of G and another. There was evidence tending to show that defendant had malice toward G, who had taken his place as fireman after his discharge from that position; that he was at the boiler alone about midnight of the night before the explosion; that the valve had been screwed down by some one unknown and the explosion thus caused; that the defendant soon after the explosion was heard to say that he had been expecting every minute that morning to hear the explosion, and consequently had not gone near it, and that he had said the day before that the explosion would occur, and that defendant's character was bad: Held, that the evidence was sufficient to be submitted to the jury. Beal, 119-809. Evidence that the prisoner, after having some trouble with the deceased about a month before the homicide, threatened to "fix" him, is competent. Foster, 130-666.

Where a verdict of not guilty is entered as to one of two defendants and this one used as a state's witness, evidence of statements made by such defendant outside of court is competent, not as substantial but as corroborative or contradictory evidence. Williams, 129–583.

The exclamations of persons present at a fracas in which a homicide occurs, showing the means and mode of killing, are admissible for or against the accused, because of their unpremeditated character and their connection with the event by which the attention of the speaker was engrossed. McCourry, 128-298.

Evidence that the prisoner had threatened to kill deceased and had accused him of reporting prisoner's blockade still is competent. Rose, 129-575.

In an indictment for murder, declarations of deceased in relation to a prior difficulty with one of the defendants was inadmissible, where the language contained no threat. Worley, 141-764.

In order to repel the inference of malice arising from the fact that the prisoners began a sudden mutual affray with the use of a deadly weapon he may show that his adversary was a powerful, violent and dangerous man. Floyd, 51-392.

Where witnesses testify that the prisoner is the person who struck the deceased, and the state does not offer the dying declarations of deceased, evidence that deceased testified before the committing magistrate that he did not know who struck him is incompetent, since the ignorance of deceased as to who struck the blow does not contradict the witnesses. Wright, 145.

While proof of death and facts tending to show that it was produced by some criminal agency should generally precede evidence connecting defendant with the crime, yet the order of proof is within the sound discretion of the judge, and his action will not be reviewed unless injustice has been done. Guthrie, 145.

On indictment of a husband for murdering his wife their daughter may be asked if her father and mother did not quarrel. Langford, 44–436.

The prisoner is not entitled to show that he is a man of violent passions and in the habit of using threatening language in order to rebut the presumption arising from his threats against the deceased. Duncan, 28 (6 Ired.), 236.

Evidence of the violent temper of the prisoner is incompetent, he not having offered evidence of his temper or general character Merrill,, 13 (2 Dev.)

A witness may testify that certain statements were made in the immediate presence of the prisoner without being able to say whether the prisoner heard such statements. McCorry, 128-596.

Evidence of the possession of weapons is competent as showing preparations. Kinsauls, 126-1096.

In a case of circumstantial evidence the state is not required to prove such a coincidence of circumstances as precludes every hypothesis except the guilt of the prisoner, but the circumstances and evidence must be such as to produce a moral certainty of guilt and exclude every other reasonable hypothesis. Wilcox, 132-1137.

9. CHARACTER OF THE DECEASED.

The general rule is that evidence of the general reputation of the deceased as a violent and dangerous man is not admissible; to this rule there is a well-defined exception that such evidence is admissible when there is evidence tending to show that the killing may have been done in self-defense, or when the evidence is wholly circumstantial and the character of the transaction is in doubt. McNeill, 92-812.

Evidence of the general character of the deceased as a violent and dangerous man is, as a rule, inadmissible, but there are two exceptions to the rule

1. Where there is evidence tending to show that the killing may have been done from a principle of self-preservation.

2. Where the evidence is wholly circumstantial and the character of the transaction is in doubt. But even in these cases the character of the deceased must have been known to the defendant. Turpin, 77-473.

Evidence as to the general character and habits of the deceased as to temper and violence is admissible only where the whole evidence as to the homicide is circumstantial. Barfield, 30 (8 Ired.), 344.

Where the willful killing is admitted or proved and there is no evidence of self-defense, testimony as to the violence and dangerous character of the deceased and of his threats against the accused is not admissible. Byrd, 121— 684.

Where the evidence is wholly circumstantial, testimony of the violent character and threats of the deceased, even if unknown to the prisoner, are admissible as tending to show the inherent probabilities of the transaction. Byrd, 121-684.

Where, though the plea of self-defense was set up, it did not appear that the defendant knew the character of the deceased for violence, evidence as to such violent character was properly excluded. Rollins, 113--722.

Where the prisoner's version of the homicide tends to show that the killing was in self-defense he is entitled to show the violent character of the deceased. McIver, 125–645.

10. THREATS.

Evidence of threats by the deceased and of his violent character is not admissible to show self-defense unless such character was known and such threats communicated to the accused, except in cases where the evidence is purely circumstantial. Byrd, 121-684.

Evidence of a threat not communicated to the prisoner before the killing, is incompetent. Hensley, 94-1021.

There was evidence of threats made by deceased against defendant and communicated to defendant; there was also evidence that deceased had followed defendant to the house and that a rock was used by deceased upon defendant's

head during the fight, but it did not clearly appear by whom the rock was introduced into the fight, the evidence on this point being wholly circumstantial. The defendant offered evidence of other threats made by deceased but not communicated to him: Held, that the evidence of the uncommunicated threats was admissible to corroborate the evidence of communicated threats, to show the state of feeling of deceased toward defendant, and the quo animo with which he pursued defendant to the house; and also as one of the circumstances tending to show who introduced the rock into the fight, the evidence on that point being wholly circumstantial. Turpin, 77–473.

While threats made in a thoughtless and bragging manner should not receive too much consideration from a jury, yet they are competent and proper evidence, and what weight they should have is a question for the jury under proper instructions and a consideration of all the circumstances under which they were made. Horn, 116–1037.

11. KILLING by Officer.

On the trial of a policeman for the murder of a person attempting a rescue or another under arrest, the court charged the jury that "where the arrest is made legally by a lawful officer he may use the amount of force necessary to prevent an escape or rescue, and no more, and if he use excessive force and death results, he is guilty of manslaughter; but if excessive force is used and he intentionally slays the person resisting arrest or attempting the rescue, he is guilty of murder": Held, that while it would have been proper for the judge to add that what would be excessive force in an individual in an ordinary encounter might not be so in an officer resisting the escape or rescue of a prisoner, yet the omission to so charge when not asked to do so was not error. Rollins, 113-722.

Where a person is lawfully in the custody of an officer and a rescue is attempted, the officer may arrest the person attempting the rescue and may use such force as is necessary. Rollins, 113-722.

A police officer can not judge arbitrarily of the necessity of killing a prisoner to secure him, or of killing a person to prevent a rescue, but the jury must pass on the necessity for such killing. Bland, 97-438.

A homicide may be justified when it takes place to prevent a threatened felony, but not when inflicted as a punishment for one already committed. Roane, 13 (2 Dev.), 58.

The deceased had been engaged, some hours previous, in a dangerous affray, in which he had been severely wounded, and was on his way home, carrying a pistol in his hand. A justice of the peace verbally commanded the prisoner to follow and arrest him. In attempting to do so, deceased resisted, displaying his pistol, when the prisoner killed him: Held, that, as the prisoner had no authority to make the arrest, he was not justified in the killing. Campbell, 107-948.

Where a defendant, in a state's warrant charging a misdemeanor, puts himself in armed resistance to the officer having such warrant, and the officer, in an attempt to take defendant, slays him, without resorting to unnecessary violence, he is justifiable. Garrett, 60 (Winst. Law), 144.

Good faith and want of malice apply as to extent of force used by an officer in resisting a rescue of a prisoner when the arrest is legal, but do not validate an illegal arrest; hence, when a person submits to arrest and a rescue is attempted, the officer may not resist such rescue or use such force as is necessary to prevent the rescue if the original arrest was unlawful. Rollins, 113722.

Where an officer having lawfully arrested a person and in resisting an attempted rescue uses such signal force that death is caused thereby, there is no presumption of law that he acted without malice and in good faith, i. e.,