The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-07-10

mon the information AfterUard the fndorse-
ment was stricken Of. when the motion was
renewed and order made upon the day Of
trial permitting the county attorney 70 IN
dorse the names of the same witnesses upon
the information- It appears that the atten-
ton of the defendent and his attorneys was
called to the witnesses, and further, that in
quiry had been made of some of them as to
what their testimony would BE- He'd under
the clrcums tances it can not be said that The
court abused its discretion in allowing the in
dorsement-
jurors did not pay taxes on personal property
were disqualified a. jurors, especially wnere u
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 oei1ef OF I'M
upon the trial of a charge Of homicide, and the
fact that death did not Immediately ensue
" Viii I ~ e 1ae It's admissibiIit2
3. In such a trial, where the theory OF the
prosecution is that the homicide was com
United bv he defendant because OF the pas
sion which he entertained for the wife Of the
deceased and or 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
ceased. and also to show the degree or grade
Of the crime that has been committed
8. As general rule, testimony tending to
show the commission OF another offense than
the one charged is not admissible but where
such other onense Is intimately connected
with the one charged. important proof tend
ing to establish the latter cannot be excluded
because II may tend 70 prove the defendant
guilty of the other ofIense-
ner ana conduc TOT 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 a character
to prejudice the defendant, is error.
s. Statements were given OF a paper and OF
its contents which related to the difficulty
between the deceased and his wife and which
were of a prejudicial character as against the
defendant. The paper itself was not pro
duced, nor we're the statements with reference
to the same made in the presence Of the de-
PENDANT. Held. That the admission OF the tes-
timony was prejudicial error
g An extended crosse examination OF the
defendant with reference to his conduct df-
eide and which tended to prove previous acts
of adultery that had no connection with the
offenSe charged, was not permissible
10. The court must decide As a preliminary
question whether dying declaration
made under sense of impending death, and
the admlsslbllity of the same Is exclusively
for the consideration OF the court, but, after
the evidence is admitted its credibility is
tirely within the province of the jury, who are
at liberty to weigh all the Circumstances under
which the declarations were made, including
such testimony only such credit a., upon the
whole. they might think it deserved,
Il. A party who is unIaWfully 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 they actually
All the justices concurring.
true copy.
Attest: CD BROWN,
lsEALl Clerk Supreme Court