certificate "that the above and foregoing is a full, true, and correct transcript of all the proceedings therein," the defect is formal, and may be amended at the trial. (Page 27.)

10. CRIMINAL LAW-TESTIMONY AT PRELIMINARY HEARING-FILING ORIGINAL NOTES-STATUTES. The provision of Comp. Laws 1907, section 4670, that, if at the preliminary hearing in a homicide case accused is held for trial, the stenographer shall, "within ten days after the close of such examination, transcribe his said shorthand notes into longhand, and certify and file the same with the clerk of the district court . and shall in all cases file his original notes with said clerk," even if implying that the original notes must be filed within said ten days, is merely directory as to the time limit for all purposes; so that, in the absence of claim of prejudice to defendant from the original notes not being filed in such time, it was not error to allow the filing thereof at the trial, and to admit in evidence the transcript of the testimony of an absent witness taken at the preliminary hearing. (Page 28.)

11. WITNESSES-CROSS-EXAMINATION OF ACCUSED SCOPE. Under Comp. Laws 1907, section 5012, declaring the rules of evidence in civil cases applicable in criminal cases, except where otherwise provided, and section 5015 providing that, if a defendant offers himself as a witness, he may be cross-examined by counsel for the state the same as any other witness, the propriety of a question on cross-examination of one accused of crime depends on whether it would be proper if asked of any other witness. (Page 32.)

12. WITNESSES-CROSS-EXAMINATION

OF ACCUSED SCOPE. As to whether accused has made certain admissions or has made statements of material facts against himself, and everything which may contradict, modify, explain, or make clearer, limit, or enlarge the meaning of the statement made by him while testifying, may be inquired into on cross-examination; but the inquiry must be limited to the subject-matters gone into by him in his testimony in chief. (Page 32.)

13. WITNESSES-CROSS-EXAMINATION OF ACCUSED SCOPE. Though, where accused as a witness denies that he committed or was connected with the commission of the criminal act or acts constituting the offense for which he is being tried, his crossexamination may ordinarily extend to the whole range of facts which in some way are related to the offense, yet where he limits his statements to negativing or explaining mere isolated facts, or merely states what occurred at a particular time and place, then what occurred at such time and place ordinarily constitutes the subject-matter on which he testified, so that his cross-examination should be limited thereto. (Page 32.)

14. WITNESSES-CROSS-EXAMINATION OF ACCUSED-SCOPE. Defendant in a criminal case in his testimony in chief having neither directly or indirectly denied, nor in any way negatived, his connection with the beating of deceased, but left the subject untouched, requiring him on cross-examination to answer questions relating to conversations and statements respecting the beating, and deceased's condition attributable thereto, and which were not proper as affecting his credibility or the weight that should be given to his testimony, was error. (Page 33.)

ED.

15. WITNESSES-PRIVILEGE WAIVER CROSS-EXAMINATION OF ACCUSDefendant in a criminal case, when taking the stand as a witness, does not waive his rights with regard to testifying against himself, which in legal effect he is required to do where his cross-examination is carried beyond its legitimate scope. (Page 34.)

APPEAL from District Court, Third District.—Hon. Geo. G. Armstrong, Judge.

Thomas Vance appeals from a conviction of murder.

REVERSED, and new trial granted.

W. L. Maginnis, A. S. Maginnis and Jno. F. Tobin for appellant.

A. R. Barnes, Attorney-General, for the State.

APPELLANT'S POINTS.

Where an indictment charges death to have been caused by two causes there can be no conviction on evidence that it was caused by one of them singly. (State v. Smith, 67 Me. 386; State v. Lincoln, 49 N. H. 464, 470-71; Mills v. State, 52 Ind. 187, 192; State v. Palmer, 35 Me. 9; State v. Bur gess, 40 Me. 592; Burgess v. State [Miss.], 33 So. 499; Hill v. State, 72 Miss. 527, 17 So. 375; 1 Bishop Criminal Proced., sec. 426; 1 Wharton Crim. Law, 423; Wharton Crim. P. & P., sec. 293; State v. Spencer, 15 Utah 149; People v. Sweeny, 55 Mich. 586-589.)

State v. Shockley, 29 Utah, 25, 80 Pac. 865, 110 Am. St. Rep. 639; State v. Williams, 103 Pac. 250.

An indictment charging several criminal acts, all, however, as a part of the same transaction, and as constituting one crime, charges but one offense. (People v. Hill, 3 Utah 334, 3 Pac. 75; Hawker v. The People, 75 N. Y. 487; State v. Porter, 26 Mo. 201; State v. Lincoln, 49 N. H. 464, at 470-71.)

The rule of law is, and we understand it applies equally to criminal and civil cases to the defendant or any other witnesses that a witness must only be cross-examined upon the matters brought out in his direct examination. (People v. Smith [Cal.], 99 Pac. 111; Summer v. Blair, 9 Kan. 521; Da Lee v. Blackburn, 11 Kan. 190; Phillips v. Elwell, 14 O. S. 240; Haynes v. Ledyard, 33 Mich. 319; State v. Testerman, 68 Mo. 411; People v. McGungill, 41 Cal. 430; People v. O'Brien, 96 Cal. 171, 180, 31 Pac. 45; People v. Arrighini, 122 Cal. 121, 54 Pac. 591; People v. Gallagher, 100 Cal. 466, 475, 476, 35 Pac. 80.)

If the dying statement in writing was admissible the oral statements were not admissible. Where the statement is committed to writing, it is essential to produce the writing which is the best evidence. (Vol. 1, Greenleaf's Ev., sec. 161; Trouter's case, 1 E. P. C. 356; People v. Tracy, 1 Utah 343, 346; Collier v. State, 20 Arl. 36; Rex v. Gay, 7 C. & P. 230; Rex v. Reason, 1 Strange 499; Boulden v. State, 15 So. 341; 3 Russell on Crimes (Internat. Ed.), page 394; 1 Wharton Criminal Law, sec. 679.)

RESPONDENT'S POINTS.

It is the contention of the state that there is but one offense charged in the third count, that is, murder, which is charged to have been committed by two different means, or rather by the combination of two different means.

Such pleading is permitted by express provision. (Sec. 4734, C. L. Utah 1907; Sec. 4161, C. L. Utah 1907; see, also, King v. State [Ala.], 34 So. 683; 2 Hawking's Pleas of the Crown, p. 251; Wharton on Homicide [3rd Ed.], sec. 563, p. 848; Bishop's Directions and Forms [2nd Ed.], secs. 20 and 535; Bishop's New Criminal Procedure, vol. 1, secs.

453 and 434; Wharton's Criminal Pl. and Pr. [9th Ed.], sec. 253; Kerr on Homicide, sec. 245; Anderson v. U. S., 170 U. S. 481; St. Clair v. U. S., 154 U. S. 134; State v. Edmondson, 3 Tex. 162; State v. Feister [Ore.], 50 Pac. 561; People v. Davis, 56 N. Y. 95; Jackson v. State, 39 Oh. St. 37.)

Where an offense charged may be committed by two different means, not only may its commission by both means be charged in one count, but proof of the offense committed by either means will sustain the allegation. (State v. Hewes [Kan.], 57 Pac. 959; State v. O'Neil, 51 Kan, 651; Bishop's New Crim. Pro., vol. 1, sec. 453, sub-division 2; Com. v. Stafford, 12 Cushing 619; Com. v. Macloon, 101 Mass. 1.)

The evidence for the prosecution should not be held insufficient solely because it is disconnected, weak and inconsistent, if taken together it may satisfy the jury beyond a reasonable doubt. (12 Cyc., page 490, subdivision 2; Howard v. State, 108 Ala. 571, 18 So. 813; Cyc., vol. 12, page 492, subdivision 5; Kossakowski v. People, 177 Ill. 563, 53 N. E. 115; Williams v. People, 166 Ill. 132, 46 N. E. 749; Davis v. People, 114 Ill. 86, 29 N. E. 192; Com. v. Salyards, 158 Pa. St. 501, 27 Atl. 993; Elliott on Evidence, vol. 4, secs. 2710-2713.)

If there were a series of circumstances leading to the conclusion of guilt, a verdict of guilty might satisfactorily be pronounced. (Wills Cir. Evidence, p. 235; Trials for Murder by Poisoning, pp. 42-43; Com. v. Danz, 211 Pac. 507, 60 Atl. 1070; Reese's Med. Juris. & Toxicology, 443; Zoldoski v. State [Wis.], 52 N. W. 778.)

The testimony was sufficient to justify such verdict. Such being the case, this court will not disturb the verdict. (State v. McCune, 16 Utah 174; State v. Halford, 17 Utah 482; State v. Webb, 18 Utah 444; State v. Endsley, 19 Utah 478.)

A witness may state the substance of a dying statement. Identical words need not be given. (Wharton on Homicide [3rd Ed.], p. 1022; State v. Carrington, 15 Utah, 480; 21 Cyc. 981; Wharton on Homicide [3rd Ed.], 1019; State v. Schmidts, 73 Ia. 469, 35 U. S. 590.)

The defendant having taken the stand in his own behalf, thereby subjected himself to cross-examination upon the same terms as any other witness. (Section 5015, Compiled Laws of Utah 1907.) The limits of such a cross-examination are within the sound discretion of the trial court. (People v. Hite, 8 Utah 461; People v. Larsen, 10 Utah 143; State v. Shockley, 29 Utah 48; State v. Wells, 54 Kan. 151.)

FRICK, J.

Appellant was convicted of the crime of murder in the first degree, and sentenced to suffer death.

The information contains three counts. In the first count it is, in substance, alleged that on the 26th day of November, 1907, the appellant committed the crime of murder in the first degree by assaulting one Mary Vance with the specific intent to take her life, and, with that intent and purpose, willfully, unlawfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, with his fists, hands, and feet did strike, kick, beat, and bruise the said Mary Vance, and did then and there, and thereby, inflict upon the body of the said Mary Vance a mortal contusion, bruise, and wound, from which the said Mary Vance languished until the 8th day of December, 1907, when she died from the contusion, bruise, and wound aforesaid. The acts of appellant and the means used by him to produce the death of the said Mary Vance are alleged with much particularity, and the count contains a complete charge of murder in the first degree, and states a complete transaction. In the second count appellant is charged with having committed the crime of murder on the 27th day of November, 1907, by administering poison to one Mary Vance with the specific intent to take her life, and that said Mary Vance took said poison, and that by reason thereof she became mortally sick and languished until the 8th day of December, 1907, when she died from the effects of the poison so taken as aforesaid. In this count all the essential ingredients constituting murder in the first degree by administering poison as a means of death are alleged, and it is further alleged that appellant