The advocate., 1894-07-11

absolutely necessary, the appellate court can
nOS say that there was not good cause for the
discharge nor that the discharge should opeF.
ate as an RcQuittal
2. motion to indorse the names OF several
witnesses upon the information was fled two
monthS before the day Of trial, and subse.
quenGly the names were trregulaFly indoRsed
upon the information. AfterWRrd the indorse-
ment was stricken of, when the motion WAa
renewed and an order made upon the dsy Of
trial permitting the county attorney to in
d0rse the names OF the same witnesses upon
the information. 1t appears that the Gtten-
tioD Of the defendent and his attorneys was
called to the Witnesses and further, that In
qutry had been made Of some Of them as 60
what their testimony would be- Held under
the circumstances 1t can not be said that the
court abused its discretion in allowing the in
dorsement
8. The mere showing that persons called az
jurors did not pay taxes on personal property
on the preceding year does mot prove that they
were disqualified as jurors, especially where ft
does not appear but what they may have been
upon the assessment rolls made in the Listing
OF real and personal property.
4. Declarations made In the belief Of i'm.
pending death are admissible In evidence
upon the trial OF charge Of homicide, and the
fact that death did not Immediately ensue
after the declaration was made, or that hope
OF recovery was subsequently entertained,
will not effect it's admissibility.
Os III SuGu u bTlBAs WnbT6 knB bQ9OPY enc
prosecution Is that the homicide was COM
mitted by ihe defendant because of the pas
sion which he entertained for the wife of the
deceased and OF the criminal intimacy which
existed between them, Of which the deceased
had knowledge, testimony Of the criminal In
timaCy Is admissible in evidence in order TO
show motive in defendant for killing the de-
ceased, and also to show the degree or grade
OF the crime that has been committed.
6. AS o general rule, testimony tending TO
show tnn comm ta110M nR AMnehAP nfYnmRo khMN
the one charged Is not admissible, but where
such other ohense is intimately connected
with the one charged, important proof tend
ing to establish the latter cannot be excluded
because 1t may tend to prove the defendant
guilty OF the other offense.
T. The admission Of testimony Of the man
ner and conduc tof the deceased some time
previous to the killing, which was not known
to the defendant nor connected with the
homicide, and which Is of such q character
as to prejudice the defendant, is error.
8. Statements were given Of paper and Of
Its contents which related to the difficulty
were Of a prejudieial character as against the
defendant The paper itself was not pro.
duced, nor were the statements with reference
TO the same made in the presence Of the de-
fendant. Held, That the admission Of the tes-
tlmOny was prejudicial error.
.. An extended cr0ss-eXam1nAtiOn Of the
defendant with reference to his conduct hf-
teen years before the occurrence Of the homi-
clueI ana Wn1cn tended TO prove previous acts
OF adultery that had no connection with the
oHense charged, was not permissible.
10 The court must decide as o preliminary
question whether q dying declaration Was
made under sense Of impending death, and
the admissibility Of the same Is exclusively
for the consideration Of the court; but, after
the evidence Is admitted Its credibility 1s en-
tirely within the province OF the jury, who are
at liberty to weigh all the circumstances under
which the declarations were made, EacgudiRg
those already proved to the judge, and to give
such testimony only such credit as, upon the
whole, they might think 1t deserved,
II. A party who is unlaWfully attacked by
another, may stand his ground and use such
force as at the time reasonably appears to him
to be necessary. he Is justified in acting upon
the facts as they appear TO him, and Is not TO
be judged by the facts as they actually are
All the justices concurring
true copy.
Attest G. J. BROWN,
LsBALl Clerk Supreme Court