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evidence can be admitted, it must be proven | duced by the appellant, was withdrawn, takthat the experiments were made under sim- en out, and mutilated at the instance of the ilar conditions, and when they are of such prosecution, over the objection of the appelcharacter they can only be testified to by lant, in such a way as to deprive him of its experts. The parties making the experi- use in another trial. The state had no right ments should have expert knowledge. It to mutilate the exhibits of the appellant, and appears in this case that the persons who it is very clear that little or no light was or conducted the experiments had very little could have been thrown on this controversy knowledge, if any, of timber; in fact, they by reason of the action had. We think that did not even know what kind of wood the the court erred in permitting the exhibits to door was made of. The record elsewhere be withdrawn and permitting the experidiscloses the fact, however, that it was ments to be made in the manner in which made of ordinary, rough cottonwood.
they were made. See Tesney v. State, 77 Ala. In Omaha St. Ry. Co. v. Larson, 70 Neb. 33; Evans v. State, 109 Ala. 11, 19 South. 595, 97 N. W. 825, the Supreme Court of 535; Ilisler v. State, 52 Fla. 30, 42 South. Nebraska, says: “It must be shown that 692; Morton v. State Tex. Cr. App.) 71 S. the person who makes the experiment is W. 281; State v. Justis, 11 Or, 178, 8 Pac. competent to do so, that the apparatus used 337, 50 Am. Rep. 470; People v. Solani, 6 was of the kind and in the condition suit. Cal. App. 103, 91 Pac. 654; 5 Ency. Ev, 470. able for the experiment, and that the experi- We do not deem it necessary to discuss the ment was honestly and fairly made." error complained of involving the cross-ex
The Supreme Court of Florida, in the case amination of the witness Reddington, as this of Hisler v. State, 52 Fla. 30, 42 South. 692, question is not likely to arise on a retrial, states the rule as follows: “Evidence of an since this case is to be reversed on other experiment whereby to test the truth of tes- grounds. timony that a certain thing occurred is not  The next complaint of the appellant is admissible, where the conditions attending that the court erred in not granting a new the alleged occurrence and the experiment trial because the testimony of the witness are not shown to be similar. The similarity Bouleware was heard against the defendant of circumstances and conditions go to the without said witness having been sworn. It admissibility of the evidence and must be de- appears that the fact that this witness was termined by the court. If, in the discretion not sworn was not discovered by the appelof the trial court, such preferred evidence is lant or his counsel until after the verdict, rejected, the appellate court will not review and it is one of the assignments urged in the ruling, unless an abuse of discretion ap- the motion for a new trial. The Attorney pears. But where such evidence is admitted General urges that the witness gave his testiover proper objections, and the rule as to mony as if under oath, and there was no ersimilarity of circumstances and conditions at- ror in overruling the motion for a new trial tending the concurrence and the experiment on this ground. In the case of Hawks v. does not appear to have been complied with Baker, 6 Me. 72, 19 Am. Dec. 191, in discussin admitting the evidence, the appellate court ing a proposition of this kind which arose in will review the ruling, and if error be found a civil case, the court there held that the therein, and it does not appear from the verdict was properly set aside because eviwhole record that no harm could have re- dence was permitted to go to the jury from sulted to the defendant from the admission witnesses who had not been sworn. There of such evidence, the error may cause a re is much stronger reason for this rule in a versal of the judgment. Evidence of this criminal case than in a civil case, especially kind should be received with caution, and one that involves as serious consequences as only be admitted when it is obvious to the a charge of murder. If the jury is entitled court from the nature of the experiments to receive the testimony of one witness who that the jury will be enlightened, rather is not sworn, there is no reason why all the than confused. In many instances a slight witnesses should not be allowed to testify in change in the conditions under which the the same manner. This is contrary to fundexperiment is made will so distort the re- amental principles. The testimony of no witsult as to wholly destroy its value as evi- ness should be received who has not been dence and make it harmful rather than help- properly sworn. It might be urged that the ful."
testimony of the witness on the point receivIt appears to us that, when the court con-ed was not of serious importance. The court cluded to permit an experiment of this kind, cannot always tell upon what particular testhe person making the experiment should timony a jury bases its verdict, and a man have been required to use a similar gun and on trial for his life or liberty is entitled to similar material, and, it being agreed that all the protection of the law. See Regg v. this timber had been exposed and was four James, 6 Cox, C. C. õ. or five years older than when the trouble  The next error complained of by the occurred, it was improper to allow the ex- | appellant is to instruction No. 2, given by periment to be made on the same material. the court, which reads as follows: "In this
It seems to us it was improper for anoth- connection you are instructed, gentlemen of dence in this case that any witness has know-position of safety, even to the extent of killingly and willfully testified falsely as to any | ing the deceased.” And in refusing to give material fact in the case, you have a right this requested instruction, which is as folto disregard any or all of the testimony of lows: "You are instructed that, in the servsuch witness except in so far as it is cor- ice of a writ of repleyin, an officer may roborated by other credible evidence or by break open any building or inclosure in which facts and circumstances proven.”
the property claimed is concealed, when the This court, in the case of Rea v. State, 3 entrance thereto has been refused upon deOkl. Cr. 269, 105 Pac. 381, in discussing an mand, and the possession of the property identical instruction, in an opinion by Pre called for by the writ has been denied.” siding Judge Furman, said: “Section 5518, Under the instruction given any intent of Wilson's Rev. & Ann. St. 1903, says that the the defendant other than the intent to se court must instruct the jury that they are cure possession of the property is declarthe exclusive judges of all questions of fact. ed sufficient to destroy the right of selfThe latter part of the instruction given con- defense. We think this idea is clearly tradicts this statute, by directing the jury in expressed in the instruction. The appel mandatory terms to accept and be bound by lant went to the place where this killing occertain evidence, under the contingency curred as a sworn officer to serve or assist therein stated. The court had no right to in serving a criminal warrant and certain ingraft this exception upon the law. The civil process. This instruction ignores his doctrine expressed by the Supreme Court of rights if he went in that capacity and de Kansas is in harmony with our statute. It stroys his right of self-defense and authormatters not how anxious this court may be izes the jury to convict him if he went there to enforce the law, we cannot allow a con- with any intent other than to secure possesviction to stand which is based upon a viola- sion of the property. This instruction is tion of plain and mandatory statutes which grievously erroneous for further reasons. go to the foundation of the case, and which Under this instruction, before the defendant action deprived the defendant of substantial had a right to act in his own defense at all, rights upon the trial. The law is plain and the jury are required to believe that he was simple, and must be followed in all matters attempting to execute certain civil process in involving the substantial rights of the de- a lawful manner, and, in the other instrucfendant." See, also, State v. Thompson, 21 tions given, the jury is allowed to determine W. Va. 741; State v. Musgrave, 43 W. Va. what is the lawful manner of serving process 672, 28 S. E. 813. The instruction was er- within the meaning of the law as applied to roneous and should not have been given in the state of facts in this record. What the this form.
legal manner is in which processes may be (10, 11] The appellant next complains of served is a question of law, upon which the court in giving instruction No. 16, which courts and great legal writers have differed, is as follows: "You have been instructed, and to submit such questions to a jury, un. gentlemen of the jury, that homicide is mur. learned in the law, to decide, was gross erder when perpetrated without authority of ror. The necessity of explaining and defining law and with the premeditated design to ef- these terms was stronger in this case because fect the death of the person killed, and the the proof showed the defendant was a spedefendant has offered in this case certain cial officer, and acts which might be called proof in rebuttal of any premeditated de- lawless in a private citizen were lawful comsign; defendant contending that at the time mitted by him, and what might be a fault in of the killing he was rightfully at the prem- a private citizen might become the highest ises of the deceased assisting in the service virtue in an officer in the proper discharge of and execution of a certain writ of replevin his official duties. The first part of this inand the process upon the deceased. And you struction is an unnecessary preamble. It apare instructed, gentlemen of the jury, that pears to be an effort to state the issues, and If you believe from the evidence the defend the fair, reasonable interpretation of it, is ant went to the premises of the deceased with that there was no premeditated design in the the purpose and intent to aid in securing the case provided the defendant was rightfully at possession of the property called for in the the premises of the deceased assisting in the writ of replevin issued by the justice of the service and execution of a certain civil pro peace, and without any design to provoke cess. If he was there not rightfully, then the a difficulty with the deceased, and, while at effect of the instruction was to state that tempting to execute such process in a law- there was no proof in rebuttal of premeditatful manner, the deceased made an assaulted design, which is an unwarranted comment upon the defendant and one Plowman which on the defense made by the defendant, and endangered their lives or subjected them or left out of consideration many other facts either of them to great personal injury, then and circumstances clearly tending to show the defendant was justified in resisting such absence of premeditated design. Following assault and in using such force as was ap- the preparatory part of said instruction, the parently necessary, judging from the stand-court obviously undertook to inform the point of the defendant, to put himself in a jury what state of facts they could find the
defendant was lawfully at the premises, and school directors of school district No. 115, required that body to find that the three fol. and as such was entitled to demand that lowing propositions were established as a Renfro deliver to him as such director the basis of conclusion that the defendant was books and papers belonging to said district, rightfully at the premises : First, with the and the mere fact that he instituted a suit purpose and intent to aid in securing the pos- in replevin to obtain the possession of said session of the property called for in the pro- papers and accompanied Plowman to Rencess issued by the justice of the peace; sec- fro's place on the day before and on the day ond, without any design to provoke a diffi- of the tragedy did not make him a wrongculty with the deceased; third, while at- doer or impair his right to defend himself. tempting to execute such process in a lawful “Defendant's Refused I. The court in.
We think the foregoing is a fair structs the jury that there is no evidence and accurate analysis of said instruction, and in this case showing, or tending to show, the practical effect of said instruction was that the replevin suit mentioned in the evi. that the proof in rebuttal of any premediated dence or the criminal prosecution mentioned design in the case was destroyed if the de- in the evidence was instituted for any purfendant was not rightfully on the premises pose other than a lawful purpose.” assisting in the service of certain civil process The instruction given (No. 18) deprived the upon the deceased. Under this instruction appellant of the right of self-defense. Unthe jury were bound to find the existence of der it, intent alone destroys the right of selfthe three above-stated hypotheses before they defense. Even though defendant committed could find that the defendant was in a posi- no overt act and was guilty of no provoking tion which justified him in resisting any as- conduct leading up to the killing, yet, if he sault made upon him or Plowman.
went to the premises of the deceased with  The appellant next complains that the an intent, the existence of this intent, though court erred in giving instruction No 18, and not revealed by word or act, deprives him in refusing to give certain instructions re- of the right to defend his life. This is not quested by the defendant, as follows:
the law. The court of Criminal Appeals of “Instruction No. 18. You are further in- Texas, in the case of Tardy v. State, 46 Tex. structed, gentlemen of the jury, that under Cr. R. 214, 78 S. W. 1077, in discussing a the law the right of self-defense does not im- similar proposition, says: "This charge is ply the right of attack, and if you believe erroneous, and, under all the authorities, it from the evidence in this case, beyond a rea- is laid down that bare intent and purpose sonable doubt, that the defendant procured to provoke a difficulty does not deprive dehimself to be deputized as a deputy constable fendant of the perfect right of self-defense. and armed himself with a pistol, and, in He must do some act or something at the company with one Plowman, proceeded to time of the difficulty that does provoke the the home of the deceased Renfro and sought same.” the deceased with the felonious intent to The instruction is erroneous for the furthen and there kill the deceased, and with ther reason that it does not define or explain such felonious intent the defendant did then the legal meaning of the expression “sought and there kill the deceased, then the defend- or brought on the difficulty." These are leant cannot invoke the law of self-defense." gal terms and should have been defined by
“Defendant's Refused F. The court in the court. Wharton says: “Where rules of structs the jury that, even though you may law with reference to bringing on a difficulbelieve an ill and unfriendly feeling existed ty are charged, the court should define and between the defendant and Renfro, and even state what character of acts on the part of though you believe that Gibbons, the defend the accused would deprive him of the right ant, knew that, if he went to the premises of of self-defense. And, where a prosecution Renfro, it would likely cause Renfro to be for homicide is carried on on the theory that come angry and resist by force any demand the defendant provoked the difficulty in made upon him for the delivery of the books, which the killing was done, the character of yet you are instructed that Gibbons, as a di- the provocation, in connection with the inrector of school district No. 115, had a right tent, should be set out and defined in septo go to the premises of Renfro, either alone arate and affirmative charges in behalf of or in connection with Plowman, and, if Plow the state." man called upon Gibbons to aid him in er- The charge is subject to the further critiecuting the papers which were then in his cism that it does not require the jury to possession, it was Gibbons' duty to go to the find that the defendant sought or brought ou aid or assistance of Plowman, and he was the difficulty by an overt act of aggression authorized to meet force with force and to or by any unlawful act or word. The jury kill Renfro if reasonably necessary or ap- was left to determine for themselves what parently necessary to protect his own life or amounted to bringing on the difficulty, and the life of Plowman."
were in effect authorized to disregard the “Defendant's Refused H. The court in- right of self-defense if they thought the destructs the jury that under the evidence in fendant provoked the difficulty by engaging this case the defendant, Thomas Gibbons, in a dispute, or any act, lawful or otherwise,
struction is in the alternative and deprives, that, in pursuance of such agreement, there
was an account stated as to business transactthe appellant of the right of self-defense if he sought or brought on the difficulty. Seek. ed for two months, and that a stated amount
was due and owing plaintiff. Defendant an. ing a difficulty is a broad general terin, and swered denying the allegations of the complaint
and in its popular sense he might be said to have except as hereinafter expressly alleged,
followed sucb denial with an allegation that all sought the difficulty if he went there ex
insurance written by plaintiff in the S. Insurpecting attack to be made on him; but of ance Company at the request of defendant was course this was not the bringing on of the written by plaintiff as president of a certain difficulty in a legal sense. One is not jus corporation for and on behalf of the insurance tified in killing another because the other company, and that such insurance company was
the real party in interest. Held, that the harbors a murderous intent and the right qualification of the denial was not improper. to defend one's self is not forfeited because (Ed. Note.-For other cases, see Pleading, there is in the mind intent and design. In-Dec. Dig. $ 114.*] tent unrevealed is like thoughts unexpressed, 2. PLEADING (8 364*) -- ANSWER STRIKING and the existence of an intent should never OUT ALLEGATIONS. warrant the taking of human life or prel in the answer relating to the filing of a libel
In an action in a state court, allegations vent the protection of it. The giving of this in a federal court should be stricken, where it instruction was error. Mundine v. State, 37 appears that such libel has been dismissed for Tex. Cr. R. 5, 38 S. W. 622; Airhart v. State, want of jurisdiction. 40 Tex. Cr. R. 470, 51 S. W. 214; 76 Am. (Ed. Note.-For other cases, see Pleading, St. Rep. 736; Wrage v. State, 41 Tex. Cr. Cent. Dig. $$ 1156–1162; Dec. Dig. $ 364.* ] R. 369, 54 S. W. 602; Tardy v. State, 46 | 3. ABATEMENT AND REVIVAL (8 85*)-PLEAS Tex. Cr. R. 214, 78 S. W. 1077; Mozee v.
IN ABATEMENT—WAIVER. State (Tex. Cr. App.) 51 S. W. 251; Wharton doing business for and on behalf of a foreign
Allegations in an answer that plaintiff was on Homicide (3d Ed.) § 323.
corporation, as its president, and that said cor(13) The appellant requested the court to poration had not complied with the laws of the give the following instruction, which re- state by filing with the Secretary of State a
declaration, and paying the fee therefor, and quest was refused: “The court instructs in order to evade the payment thereof, the acthe jury that under the law both Plowman tion was begun in plaintiff's name, were in the and the defendant, when they went to Ren- nature of pleas in abatement and were waived fro's place on the 13th of July, had a right by defendant's further allegations pleading to
the merits. to carry arms.”
[Ed. Note.-For other cases, see Abatement Appellant and Plowman mere acting in and Revival, Cent. Dig. 88 508-510; Dec. Dig. the capacity of officers in the discharge of $ 85;* Pleading, Cent. Dig. 186.) official duty, and under the statute were 4. A BATEMENT AND REVIVAL (8 85*)-JOINentitled to carry arms, and appellant was DER OF PLEAS-PLEA IN ABATEMENT AND entitled to this instruction.
IN BAR. We think the court should have given ap- a plea in bar, as under L. 0. L. $ 6709, a plea
A plea in abatement cannot be joined with pellant's requested instructions designated in abatement must be disposed of before trial as "F,” “H,” and “I," quoted supra.
of the case upon its merits. There are other errors complained of, and [Ed. Note.--For other cases, see Abatement other assignments, which, without a close and Revival, Dec. Dig. $ 85.*] analysis, appear to be well taken; but we 5. PLEADING (8 354*)—ANSWER—MOTION TO think the material grounds in this case bave STRIKE. been covered in a manner that will enable the in the answer that plaintiff was doing business
In an action on accounts stated, allegations court to avoid reversible errors on a trial in behalf of a foreign corporation, as its presianew of this case should it be tried again. dent, and that such corporation had not com
For the errors indicated, the judgment of plied with the laws in paying the license fee, the court below is reversed, and this cause
and brought the action in plaintiff's name to remanded for proceedings in accordance by motion to strike, as a motion to strike can.
evade payment thereof, could not be attacked with the views expressed in this opinion. not perform the office of a demurrer.
[Ed. Note.-For other cases, see Pleading, FURMAN, P. J., and DOYLE, J., concur. Cent. Dig. $ 1093; Dec. Dig. $ 354.* ]
6. FRAUDS, STATUTE OF ($ 26*)— PROMISE TO
ANSWER FOR DEBT OF ANOTHER-ORIGINAL
UNDERTAKING. (58 Or. 410)
An agreement between plaintiff and deHARRISON V. BIRRELL.
fendant that, on all insurance written by plain.
tiff in the $. Insurance Company for persons (Supreme Court of Oregon. April 19, 1911.)
introduced by defendant, defendant was to re1. PLEADING (§ 114*)--QUALIFIED DENIAL.
ceive a commission, and was to pay the preIn an action on an account stated, plain-miums on all insurance so written, did not intiff alleged an agreement between himself and yolve a promise by defendant to answer for the defendant, whereby defendant agreed that, on
debt of another, where it appeared that the enall insurance written by plaintiff in the s. tire credit was given to him; his promise beInsurance Company for parties introduced by ing an original undertaking, and hence not defendant, defendant was to receive a commis- within the statute of frauds. sion in consideration of which he was to pay
[Ed. Note.-For other cases, see Frauds, Stat. the premium on all insurance so written, and ute of, Cent. Dig. $$ 35-4242 ; Dec. Dig. $ 26.*} •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep's Indexes
7. PARTIES ($ 6*)-REAL PARTY IN INTEREST. credere commission, and this rule applies to
Where plaintiff, an insurance agent, agreed marine insurance, unless abrogated by usage. to write insurance for persons introduced by [Ed. Note.-For other cases, see Insurance, defendant, the insurance to be placed in a nam. Cent. Dig. $ 392; Dec. Dig. $ 182.*] ed insurance company, defendant to receive a commission and to pay the premiums, plaintiff, 14. CustomS AND USAGES ($ 18*)-PLEADING and not the insurance company, was the real
-NECESSITY. party in interest in an action to recover pre
Where an action is based on an implied miums for insurance written under the agree-contract, general custom or usage may be ofment.
fered in evidence to interpret and apply the [Ed. Note.-For other cases, see Parties, Cent. is not pleaded.
acts proved and relied on, though such custom Dig. $S 6–8;. Dec. Dig. $ 6;* Contracts, Cent. Dig. $ 1597.)
[Ed. Note.-For other cases, see Customs and
Usages, Cent. Dig. $ 40; Dec. Dig. § 18.*] 8. INSURANCE (8 188*)-SUBBOGATION ($ 23*) 15. Account STATED (8 6*)—WHAT CONSTI- PAYMENT OF PREMIUMS BY INSURANCE
An account rendered and not objected to
account agent for the premiums on insurance written
stated. by him, the agent is the owner of the debt arising by his extending credit for the premiums,
[Ed. Note.-For other cases, see Account so that on payment thereof he is subrogated to Stated, Cent. Dig. 31; Dec. Dig. 8 6.*] all rights of his principal in the premiums, en- 16. ACCOUNT STATED (8 8*)— EXISTENCE OF titling him to sue therefor, and no assignment COUNTERCLAIM. thereof is necessary to enable him to recover; If the account of the plaintiff only be statbut, if an agent has no right by subrogation or ed, showing the amount due, an acknowledge assignment, he is not entitled to bring the ac- ment or admission thereof is sufficient to contion.
stitute it as stated, although the defendant [Ed. Note.-For other cases, see Insurance, may have counterclaims which are admitted. Dec. Dig. § 188;* Subrogation, Dec. Dig. $ [Ed. Note.-For other cases, see Account 23.*]
Stated, Cent. Dig. § 53; Dec. Dig. $ 8.*] 9. CUSTOMS AND USAGES (8 18*)-PLEADING. 17. ACCOUNT STATED ($ 1*)-EFFECT OF SUBA general custom or usage need not be
SEQUENT TRANSACTION. pleaded; but, where a local custom is relied on
An account stated for the transactions of as entering into or forming a part of a con
one month is not affected by the fact that the tract, it must be pleaded, unless it is merely transactions for a subsequent month are not incidental to an implied 'contract, and relied brought into it. upon only as evidence of some fact in issue. [Ed. Note.-For other cases, see Account
[Ed. Note.-For other cases, see Customs and Stated, Cent. Dig. $ 1; Dec. Dig. 8 1.*] Usages, Cent. Dig. $ 40; Dec. Dig. f 18.*] 18. TRIAL (§ 165*)-NonsuIT-PRESUMPTION. 10. Customs AND USAGES ($ 11*)-EVIDENCE and every fair and legitimate inference which
On a motion for nonsuit every intendment OF AS PROOF OF CONTRACT. Where plaintiff, an insurance agent, alleg; l'avor of plaintiff.
can arise from the evidence must be made in ed that defendant, an insurance broker, agreed to pay premiums on marine insurance written
(Ed. Note.-For other cases, see Trial, Cent. by plaintiff for persons introduced by defend- | Dig. $ 373; Dec. Dig. 8 165.*] ant, and defendant denied such agreement, evi- 19. APPEAL AND ERROR (8 987*)-REVIEW, dence of a custom, by which brokers securing QUESTIONS OF FACT-CONSTITUTIONAL PROmarine insurance through agents of insurance VISIONS. companies undertook to pay the premium, was Const. Amend. art. 7, § 3, authorizing the admissible on the issue of the existence of the Supreme Court to make findings from the reccontract.
ord which should have been made, and author[Ed. Note.-For other cases, see Customs and izing either party to attach to the bill of ex: Usages, Cent. Dig. $ 22; Dec. Dig. § 11.*] ceptions the whole testimony, does not apply 11. CUSTOMS AND USAGES ($ 19*)-GENERAL vember 8, 1910.
to cases appealed prior to its adoption, NoOR LOCAL CUSTOMS-EVIDENCE. A custom, by which brokers securing ma
[Ed. Note.-For other cases, see Appeal and rine insurance through insurance agents are Error, Dec. Dig. $ 987.*] liable to such agents for the premiums on the insurance so written, held, on the evidence, to
Appeal from Circuit Court, Multnomab be a general, as distinguished from a local, County; John B. Cleland, Judge. custom.
Action by M. C. Harrison against A. H. [Ed. Note.-For other cases, see Customs and Birrell. Judgment for defendant, and plainUsages, Dec. Dig. $ 19.*]
tiff appeals. Reversed and remanded. 12. CUSTOMS AND USAGES (8 12*)-KNOWLEDGE OF CUSTOM-PRESUMPTION.
This is an action upon two accounts statAn insurance broker engaged in the busi-ed for premiums on marine insurance, writness of securing marine insurance for his cus- ten by plaintiff at the instance and request tomers will be presumed to have knowledge of of defendant. a general custom by which insurance brokers effecting insurance through the agents of insur
Plaintiff alleges in effect that on Septemance companies are liable for the amount of the ber 15, 1906, he entered into a contract with premium.
defendant, whereby it was agreed that on all [Ed. Note.-For other cases, see Customs and premiums for insurance written by him in Usages, Cent. Dig. § 24; Dec. Dig. § 12.*]
the St. Paul Fire & Marine Insurance Com13. INSURANCE ($ 182*)-MARINE INSURANCE pany, at the instance and request of defend-BROKERS-PREMIUMS-CUSTOM.
ant, and for parties introduced by defendA broker who procures insurance not liable for a premium on a policy procured by ant to him, defendant was to receive a comhim for another, unless he acts under a dell mission of 10 per cent., in consideration of