evidence can be admitted, it must be proven | duced by the appellant, was withdrawn, takthat the experiments were made under sim- en out, and mutilated at the instance of the ilar conditions, and when they are of such prosecution, over the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 The record elsewhere be withdrawn and permitting the experidiscloses the fact, however, that it was ments to be made in the manner in which made of ordinary, rough cottonwood.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. 33; Evans v. State, 109 Ala. 11, 19 South. Hisler v. State, 52 Fla. 30, 42 South. Morton v. State (Tex. Cr. App.) 71 S. W. 281; State v. Justis, 11 Or. 178, 8 Pac. 337, 50 Am. Rep. 470; People v. Solani, 6 Cal. App. 103, 91 Pac. 654; 5 Ency. Ev. 470.

In Omaha St. Ry. Co. v. Larson, 70 Neb. 595, 97 N. W. 825, the Supreme Court of Nebraska, says: "It must be shown that the person who makes the experiment is competent to do so, that the apparatus used was of the kind and in the condition suitable for the experiment, and that the experiment was honestly and fairly made."

535;

692;

We do not deem it necessary to discuss the error complained of involving the cross-examination of the witness Reddington, as this question is not likely to arise on a retrial, since this case is to be reversed on other grounds.

The Supreme Court of Florida, in the case of Hisler v. State, 52 Fla. 30, 42 South. 692, states the rule as follows: "Evidence of an experiment whereby to test the truth of testimony that a certain thing occurred is not [8] 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 courting 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 whole record that no harm could have resulted to the defendant from the admission of such evidence, the error may cause a reversal of the judgment. Evidence of this kind should be received with caution, and only be admitted when it is obvious to the court from the nature of the experiments that the jury will be enlightened, rather than confused. In many instances a slight change in the conditions under which the experiment is made will so distort the re-amental principles. The testimony of no witsult as to wholly destroy its value as evidence and make it harmful rather than helpful."

verdict was properly set aside because evidence was permitted to go to the jury from witnesses who had not been sworn. There is much stronger reason for this rule in a criminal case than in a civil case, especially one that involves as serious consequences as a charge of murder. If the jury is entitled to receive the testimony of one witness who is not sworn, there is no reason why all the witnesses should not be allowed to testify in the same manner. This is contrary to fund

ness should be received who has not been properly sworn. It might be urged that the testimony of the witness on the point received was not of serious importance. The court cannot always tell upon what particular testimony a jury bases its verdict, and a man on trial for his life or liberty is entitled to all the protection of the law. See Regg v. James, 6 Cox, C. C. 5.

It appears to us that, when the court concluded to permit an experiment of this kind, the person making the experiment should have been required to use a similar gun and similar material, and, it being agreed that this timber had been exposed and was four or five years older than when the trouble [9] 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 material fact in the case, you have a right to disregard any or all of the testimony of such witness except in so far as it is corroborated by other credible evidence or by facts and circumstances proven."

This court, in the case of Rea v. State, 3 Okl. Cr. 269, 105 Pac. 381, in discussing an identical instruction, in an opinion by Presiding Judge Furman, said: "Section 5518, Wilson's Rev. & Ann. St. 1903, says that the court must instruct the jury that they are the exclusive judges of all questions of fact. The latter part of the instruction given contradicts this statute, by directing the jury in mandatory terms to accept and be bound by certain evidence, under the contingency therein stated. The court had no right to ingraft this exception upon the law. The doctrine expressed by the Supreme Court of Kansas is in harmony with our statute. It matters not how anxious this court may be to enforce the law, we cannot allow a conviction to stand which is based upon a violation of plain and mandatory statutes which go to the foundation of the case, and which action deprived the defendant of substantial rights upon the trial. The law is plain and simple, and must be followed in all matters involving the substantial rights of the defendant." See, also, State v. Thompson, 21 W. Va. 741; State v. Musgrave, 43 W. Va. 672, 28 S. E. 813. The instruction was erroneous and should not have been given in this form.

ing the deceased." And in refusing to give this requested instruction, which is as follows: "You are instructed that, in the service of a writ of replevin, an officer may break open any building or inclosure in which the property claimed is concealed, when the entrance thereto has been refused upon demand, and the possession of the property called for by the writ has been denied."

What the

Under the instruction given any intent of the defendant other than the intent to secure possession of the property is declared sufficient to destroy the right of selfdefense. We think this idea is clearly expressed in the instruction. The appellant went to the place where this killing occurred as a sworn officer to serve or assist in serving a criminal warrant and certain civil process. This instruction ignores his rights if he went in that capacity and destroys his right of self-defense and authorizes the jury to convict him if he went there with any intent other than to secure possession of the property. This instruction is grievously erroneous for further reasons. Under this instruction, before the defendant had a right to act in his own defense at all, the jury are required to believe that he was attempting to execute certain civil process in a lawful manner, and, in the other instruc tions given, the jury is allowed to determine what is the lawful manner of serving process within the meaning of the law as applied to the state of facts in this record. 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, ungentlemen 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 propeace, 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 either of them to great personal injury, then the defendant was justified in resisting such assault and in using such force as was apparently necessary, judging from the standpoint of the defendant, to put himself in a

left out of consideration many other facts and circumstances clearly tending to show absence of premeditated design. Following the preparatory part of said instruction, the court obviously undertook to inform the 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 inmanner. We think the foregoing is a fair and accurate analysis of said instruction, and the practical effect of said instruction was that the proof in rebuttal of any premediated design in the case was destroyed if the defendant was not rightfully on the premises assisting in the service of certain civil process upon the deceased. Under this instruction | appellant of the right of self-defense. the jury were bound to find the existence of the three above-stated hypotheses before they could find that the defendant was in a position which justified him in resisting any assault made upon him or Plowman.

[12] The appellant next complains that the court erred in giving instruction No 18, and in refusing to give certain instructions requested by the defendant, as follows:

"Instruction No. 18. You are further instructed, gentlemen of the jury, that under the law the right of self-defense does not imply the right of attack, and if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant procured himself to be deputized as a deputy constable and armed himself with a pistol, and, in company with one Plowman, proceeded to the home of the deceased Renfro and sought the deceased with the felonious intent to then and there kill the deceased, and with such felonious intent the defendant did then and there kill the deceased, then the defendant cannot invoke the law of self-defense." "Defendant's Refused F. The court instructs the jury that, even though you may believe an ill and unfriendly feeling existed between the defendant and Renfro, and even though you believe that Gibbons, the defendant, knew that, if he went to the premises of Renfro, it would likely cause Renfro to be come angry and resist by force any demand made upon him for the delivery of the books, yet you are instructed that Gibbons, as a director of school district No. 115, had a right to go to the premises of Renfro, either alone or in connection with Plowman, and, if Plowman called upon Gibbons to aid him in executing the papers which were then in his possession, it was Gibbons' duty to go to the aid or assistance of Plowman, and he was authorized to meet force with force and to kill Renfro if reasonably necessary or apparently necessary to protect his own life or the life of Plowman."

structs the jury that there is no evidence
in this case showing, or tending to show,
that the replevin suit mentioned in the evi-
dence or the criminal prosecution mentioned
in the evidence was instituted for any pur-
pose other than a lawful purpose."
The instruction given (No. 18) deprived the

Un

der it, intent alone destroys the right of selfdefense. Even though defendant committed no overt act and was guilty of no provoking conduct leading up to the killing, yet, if he went to the premises of the deceased with an intent, the existence of this intent, though not revealed by word or act, deprives him of the right to defend his life. This is not the law. The court of Criminal Appeals of Texas, in the case of Tardy v. State, 46 Tex. Cr. R. 214, 78 S. W. 1077, in discussing a similar proposition, says: "This charge is erroneous, and, under all the authorities, it is laid down that bare intent and purpose to provoke a difficulty does not deprive defendant of the perfect right of self-defense. He must do some act or something at the time of the difficulty that does provoke the same."

The instruction is erroneous for the further reason that it does not define or explain the legal meaning of the expression "sought or brought on the difficulty." These are legal terms and should have been defined by the court. Wharton says: "Where rules of law with reference to bringing on a difficulty are charged, the court should define and state what character of acts on the part of the accused would deprive him of the right of self-defense. And, where a prosecution for homicide is carried on on the theory that the defendant provoked the difficulty in which the killing was done, the character of the provocation, in connection with the intent, should be set out and defined in separate and affirmative charges in behalf of the state."

The charge is subject to the further criticism that it does not require the jury to find that the defendant sought or brought on the difficulty by an overt act of aggression or by any unlawful act or word. The jury was left to determine for themselves what amounted to bringing on the difficulty, and 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,

was an account stated as to business transact

ed for two months, and that a stated amount was due and owing plaintiff. Defendant answered denying the allegations of the complaint "except as hereinafter expressly alleged," and followed such denial with an allegation that all insurance written by plaintiff in the S. Insurance Company at the request of defendant was written by plaintiff as president of a certain corporation for and on behalf of the insurance company, and that such insurance company was the real party in interest. Held, that the qualification of the denial was not improper.

[Ed. Note.-For other cases, see Pleading, Dec. Dig. § 114.*]

struction is in the alternative and deprives | that, in pursuance of such agreement, there the appellant of the right of self-defense if he sought or brought on the difficulty. Seeking a difficulty is a broad general term, and in its popular sense he might be said to have sought the difficulty if he went there expecting attack to be made on him; but of course this was not the bringing on of the difficulty in a legal sense. One is not justified in killing another because the other harbors a murderous intent and the right to defend one's self is not forfeited because there is in the mind intent and design. Intent unrevealed is like thoughts unexpressed, and the existence of an intent should never warrant the taking of human life or prevent the protection of it. The giving of this instruction was error. Mundine v. State, 37 Tex. Cr. R. 5, 38 S. W. 622; Airhart v. State, 40 Tex. Cr. R. 470, 51 S. W. 214; 76 Am. St. Rep. 736; Wrage v. State, 41 Tex. Cr. R. 369, 54 S. W. 602; Tardy v. State, 46 Tex. Cr. R. 214, 78 S. W. 1077; Mozee v. State (Tex. Cr. App.) 51 S. W. 251; Wharton on Homicide (3d Ed.) § 323.

[13] The appellant requested the court to give the following instruction, which request was refused: "The court instructs the jury that under the law both Plowman and the defendant, when they went to Renfro's place on the 13th of July, had a right to carry arms."

Appellant and Plowman mere acting in the capacity of officers in the discharge of official duty, and under the statute were entitled to carry arms, and appellant was entitled to this instruction.

We think the court should have given appellant's requested instructions designated as "F," "H," and "I," quoted supra.

There are other errors complained of, and other assignments, which, without a close analysis, appear to be well taken; but we think the material grounds in this case have been covered in a manner that will enable the court to avoid reversible errors on a trial anew of this case should it be tried again.

For the errors indicated, the judgment of the court below is reversed, and this cause remanded for proceedings in accordance with the views expressed in this opinion. FURMAN, P. J., and DOYLE, J., concur.

(58 Or. 410)

HARRISON v. BIRRELL. (Supreme Court of Oregon. April 19, 1911.) 1 PLEADING (§ 114*)-QUALIFIED DENIAL. In an action on an account stated, plaintiff alleged an agreement between himself and defendant, whereby defendant agreed that, on all insurance written by plaintiff in the S. Insurance Company for parties introduced by defendant, defendant was to receive a commission in consideration of which he was to pay the premium on all insurance so written, and

2. PLEADING (§ 364*) — ANSWER - STRIKING

OUT ALLEGATIONS.

In an action in a state court, allegations

in the answer relating to the filing of a libel in a federal court should be stricken, where it appears that such libel has been dismissed for want of jurisdiction.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1156-1162; Dec. Dig. § 364.*] 3. ABATEMENT AND REVIVAL (§ 85*)-PLEAS IN ABATEMENT-WAIVER.

doing business for and on behalf of a foreign Allegations in an answer that plaintiff was corporation, as its president, and that said corporation had not complied with the laws of the state by filing with the Secretary of State a in order to evade the payment thereof, the acdeclaration, and paying the fee therefor, and tion was begun in plaintiff's name, were in the nature of pleas in abatement and were waived by defendant's further allegations pleading to the merits.

[Ed. Note. For other cases, see Abatement and Revival, Cent. Dig. §§ 508-510; Dec. Dig. § 85;* Pleading, Cent. Dig. § 186.]

4. ABATEMENT AND REVIVAL (§ 85*)—JOINDER OF PLEAS-PLEA IN ABATEMENT AND IN BAR.

A plea in abatement cannot be joined with in abatement must be disposed of before trial a plea in bar, as under L. O. L. § 6709, a plea of the case upon its merits.

[Ed. Note.-For other cases, see Abatement and Revival, Dec. Dig. § 85.*]

5. PLEADING (§ 354*)—ANSWER-MOTION TO STRIKE.

in the answer that plaintiff was doing business In an action on accounts stated, allegations in behalf of a foreign corporation, as its president, and that such corporation had not complied with the laws in paying the license fee, evade payment thereof, could not be attacked and brought the action in plaintiff's name to by motion to strike, as a motion to strike cannot perform the office of a demurrer.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 1093; Dec. Dig. § 354.*]

6. FRAUDS, STATUTE OF ($ 26*)- PROMISE TO ANSWER FOR DEBT OF ANOTHER-ORIGINAL UNDERTAKING.

An agreement between plaintiff and defendant that, on all insurance written by plaintiff in the S. Insurance Company for persons introduced by defendant, defendant was to receive a commission, and was to pay the premiums on all insurance so written, did not involve a promise by defendant to answer for the debt of another, where it appeared that the entire credit was given to him; his promise being an original undertaking, and hence not within the statute of frauds.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 35-422; Dec. Dig. § 26.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

7. PARTIES (8 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 party in interest in an action to recover pre-contract, general custom or usage may be of Where an action is based on an implied miums for insurance written under the agree- fered in evidence to interpret and apply the is not pleaded. acts proved and relied on, though such custom

[Ed. Note.-For other cases, see Customs and Birrell. Judgment for defendant, and plainUsages, Dec. Dig. § 19.*]