9801.

#### Supreme Council of The Royal Arcanum *v.*Quarles.

Broyles, P. J.

1. The court did not err in repelling as evidence the following part of the verdict of the coroner’s inquest held upon the death of the insured: “Said wounds was caused by bullets fired from gun in hands of Benjamin T. Drumright in self-defense.” The verdict of a coroner’s jury has no probative value whatever as evidence, is binding upon no one, and can not prejudice the right of any person. It is merely advisory to the officers charged with the execution of the public law in cases of homicide, and in addition may require the coroner to issue a warrant for the arrest of the person suspected of the homicide. *Smalls*v. *State,*101 *Ga.*570 (28 S. E. 981, 40 L. R. A. 369).

*(a)*Such a verdict may be received in evidence as a part of the proof of the death of the insured’, but it is not even prima facie competent as tending to prove the *cause*of death, no matter by which party it is offered. 13 Corpus Juris, 1256; City Five Cent Savings Bank *v.*Pennsylvania Fire Insurance Co., 122 Mass. 165.

2. The court properly excluded from the evidence so much of the certificate of the death of the insured, issued by the Missouri State Board of Health, as recited that the killing of the insured was justifiable homicide. ^his was clearly hearsay evidence and was inadmissible on the same principle that applies to the verdict of a coroner’s- jury.

3. The court did not err in rejecting as evidence statements of the policeman who killed the insured, made a short time after the killing, to another police officer over the telephone, and also at the place of the homicide. Under the facts of the ease these statements were not part of the res gestae and were not legal evidence.

4. If the court erred in excluding any or all of the other evidence, as set forth and complained of in the bill of exceptions, the' error w:as not harmful to the plaintiff in error. If all of this evidence had! been admitted, the verdict rendered would still have been demanded.

5. The court did not err in directing a verdict for the plaintiff for the full amount sued for in the petition as amended. Und'er the facts of the ease it was incumbent upon the defendant to sustain its affirmative plea by showing that the insured, at the time of his death, was engaged - in the violation of some law of the State of Missouri which was punishable *105by death or imprisonment in the penitentiary; and this burden it failed to carry. The evidence, with the legal inferences arising therefrom, showed, among others, the following facts: The insured was shot and killed in a house of ill-fame in St. Louis, Missouri, by a policeman named Drumright. The only other eye-witnesses of the homicide were two women inmates of the house. None of these persons testified in the instant case. The policeman who did the killing had taken off his uniform in the house and at the time of the homicide had on a bath-robe. He did not reside there, and was evidently a social visitor in the house. The evidence introduced, including the physical facts, together with all legal inferences arising therefrom, did not authorize a finding that *at the time of the homicide*the insured was violating any law of the State of Missouri, the violation of which was punishable by death or imprisonment in the penitentiary. Accordingly the court, upon motion of the plaintiff, properly directed the verdict rendered.

Decided November 23, 1918.

Action upon insurance policy; from city court of Floyd county— Judge Nunnally. March *23,*1918.

*Brewster, Howell & Heyman, Mark Bolding,*for plaintiff in error.

*Benny & Wright,*contra.

*Judgment affirmed.*

*Bloodworth, J., concurs. Stephens, J., not presiding.*