going to whip them, and they kept driving on, and told him they did not want to have anything to do with him; that Ab ran ahead of the oxen, and stopped them, when Boclair got down on the tongue of the wagon, and Ab took hold of him, and jerked him down, and commenced to beat him with a whip stock, when Ed came to his relief with a stick, and they had a general fight with the sticks; that they picked up the sticks in the road. Several witnesses testified that Ab Rice had told them that the facts were about as stated by the defendants. The first instruction given for the state, complained of, is as follows: "The court instructs the jury for the state that if you believe, from the evidence, beyond a reasonable doubt, that Ab Rice began the difficulty with the defendants, and was the aggressor in said difficulty, but that he in good faith abandoned the difficulty, and fled, and the defendants pursued him, and assaulted and beat at Rice with sticks, which you believe, from the evidence, beyond a reasonable doubt, were deadly weapons, or means and force likely to produce death, used in the manner they were used, then the defendants are guilty as charged in the indictment, and you should so find." The defendants were convicted and sentenced to the penitentiary. Their motion

for a new trial was overruled, and they appeal. Reversed.

Eskridge & Buntin, for appellants. Wiley N. Nash, Atty. Gen., for the State.

WHITFIELD, J. The first instruction for the state is erroneous, falling under the condemnation of Jeff v. State, 37 Miss. 321; and, in the doubtful state of the evidence, it is reversible error, for we cannot confidently say that no other result could be reasonably reached, with this error corrected, on a new trial. Judgment reversed, verdict set aside, and cause remanded.

(51 La. Ann. 713)

ELDRIDGE v. STATE. (Supreme Court of Mississippi. Dec. 19, 1898.)

FORGERY-VARIANCE-EVIDENCE.

1. An indictment for forging an order requesting a merchant to pay the bearer a certain sum "in money," signed "Hussey," is not sustained by proof that accused forged an order of the same date and amount, addressed to the same merchant, which does not contain the words "in money," and is signed "C. C. Hussey."

2. An indictment for having in possession a forged instrument with intent to utter it is not sustained by the mere production of the instrument, without showing that it had been in accused's possession.

Appeal from circuit court, Lee county; E. O. Sykes, Judge.

Frank Eldridge was indicted for forgery. There are two counts in the indictment. The first charges appellant with forging an order to the following tenor and effect: "July 21st, 1898. Mr. F. Elliot: You will please let bar

ever he wants and charge to me. Yours truly, Hussey." It appears from the record that appellant entered the store of Mr. F. Elliot with an order for $7.40 signed "C. C. Hussey," which was filled, and appellant immediately left the store. Soon after appellant left the store, Elliot noticed some irregularity in the order, and he went out, and found appellant, and the goods were returned to Elliot, and the order to appellant. A short time after this, appellant was arrested, and the two orders charged in the indictment were found in his possession. Mr. Elliot testified at the trial that neither of the orders introduced was the one passed at his store by appellant; that the order passed at his store was for $7.40, and signed “C. C. Hussey." McAlister testified that he was a clerk in Elliot's store, and that he filled the order presented by appellant, and that said order was signed "C. C. Hussey," and that he (McAlister) wrote on the order, "Paid to Henry Tackert," and that neither of the orders introduced in evidence was the one presented at the store by appellant; that the word "money" was not in the order presented at the store. At the trial in the court below, appellant was convicted as charged, and sentenced to the penitentiary for three years, from which judgment an appeal was prosecuted. Reversed.

W. L. Clayton, for appellant. Wiley N. Nash, Atty. Gen., for the State.

WHITFIELD, J. It is clear that no conviction could have been had in this case, on the testimony in the record, under the first count. Neither of the orders offered in evidence was the one passed on Elliot. Can the conviction be sustained on the proof here, under the second count? That count charges that appellant, having in his possession, etc., with the intent to utter and publish the same as true, and with the intent to defraud the said Elliot, etc. Doubtless, the proof of the specific intent here charged may be "inferred from the circumstances of the possession," as stated in 2 McClain's Cr. Law, § 786, and in People v. Ah Sam, 41 Cal,, at page 656, coupled with the fact that the order is drawn on Elliot. But there is absolutely no identification in the proof of the order signed "Hussey" as being the one found in the possession of the defendant. The testimony of Elliot and McAlister relates alone to the order passed, signed "C. C. Hussey," without the word "money" in it, and on which McAlister had written, "Paid to Henry Tack

What

ert." Neither one of these witnesses knew what order was found on defendant's person. The witness Keys never identified the order found on defendant's person. Two orders were in evidence. He was asked, "Look at that paper, and see what it is," and answered, "That is the order." What paper? order? Which one of the two? How can this court tell from such a transcript which one of the two orders was meant? It was very easy to have had the witness identify the order found on defendant's person as the one signed "Hussey," in such a way as that the record would show. Unless we are to assume, without proof in the record, that the order signed "Hussey" was the one found in defendant's possession, we cannot affirm this judgment. Judgment reversed, verdict set aside, and cause remanded.

(76 Miss. 258)

SAFFOLD v. STATE.

(Supreme Court of Mississippi. Dec. 26, 1898.)
CRIMINAL LAW-HOMICIDE-CHANGE OF VENUE-
INSTRUCTIONS-DEADLY WEAPON-QUES-
TION FOR JURY-SELF-DEFENSE.

1. It is an abuse of discretion to refuse a change of venue in a murder case where 25 witnesses stated that by reason of prejudice the defendant could not obtain a fair trial in the county; where a number of the state's witnesses had formed an opinion which it would require evidence to overcome; where defendant was a stranger, and deceased was a prominent citizen, with numerous relatives in the county; and where defendant had been threatened with mob violence.

2. Where defendant shot deceased while the latter was striking him in the face with a closed pocket knife, an instruction that the jury should not give defendant "the benefit of personal timidity or needless fear," without the qualification, "if such timidity and fear be shown beyond a reasonable doubt," is error.

3. Whether a pocketknife is a deadly weapon is for the jury.

a

4. An instruction that the right to use deadly weapon in self-defense is denied to one who starts a quarrel intending to use such weapon, if necessary, is erroneous where there is no evidence that defendant began the quarrel.

Appeal from circuit court, Montgomery county; W. F. Stevens, Judge.

E. H. Saffold was convicted of manslaughter, and appeals. Reversed.

There was very little conflict in the testimony, and the material facts are substantially sustained by the evidence for both the state and defendant, and are as follows: Ingram had been postmaster at the village of Stewart, in Montgomery county, and his term had about expired, and Josh McCollister had been appointed to succeed him. Appellant had called at the post office several times for a letter he expected from his mother, and was told there was no letter for him by Ingram. On the morning of April 1, 1898, he called again for his mail, and received the letter. which had been in the post office some time. He then made some remark to Ingram about his not having looked carefully for the letter before, but stated that it made no difference

About

with him, as he then had the letter. sundown the same evening Ingram was in his drug store, where the post office was kept, closing up, and was in the rear end of the store, and Josh McCollister was in the store, nearer the front, when Saffold came in at the front door, and went back to where McCollister was, and said to him, "You all are violating the postal laws here by not stamping the letters on the reverse sides." Ingram overheard this remark, and asked Saffold what he said, when Saffold replied that, "You fellows are violating the law by not stamping the letters on the reverse sides," and Ingram replied, "There is no such law." Saffold said, "There is, and I can show it to you in the Postal Guide." Ingram walked on to the front of the store, and said, "You are meddling with something you don't know anything about," to which Saffold replied, “I know as much about the Postal Guide as you or any other damned man." By this time both men had reached the front of the store, and Ingram put his right hand in his pants pocket, jerked it out, and struck Saffold, and knocked him down. There were then rapid licks struck by both parties, but Saffold was never allowed to recover himself, and Ingram continued to strike him overhanded licks until Saffold drew his pistol, and shot Ingram under the eye, and killed him almost instantly. There was a pocketknife found near Ingram after he fell. It was a four-bladed knife, about three inches long, and closed. The physician who attended Saffold testified that there were three cuts on Saffold's cheek bone that seemed to have been made by a dull instrument. Saffold testified that he thought Ingram had a knife and was cutting him when he shot. The third and fifth charges given for the state are as follows: “(3) While the jury should put themselves in the place of the defendant, and judge of his act by the facts and circumstances by which he was surrounded, they should not, however, give him the benefit of personal timidity or needless fear." "(5) The right to use a deadly weapon in self-defense is denied to an accused person who was the originator of the difficulty, entered it armed, and brought it on intending, if necessary, to use his weapon to overcome his adversary." Appellant's motion for a new trial was overruled, and he appealed.

S. M. & W. C. Meek and T. U. Sisson, for appellant. Wiley N. Nash, Atty. Gen., for the State.

a fair and impartial trial in the county. Some 20 witnesses were examined by the state. A number of them had formed opinions as to the guilt of the defendant which it would require evidence to remove. Most of the expressions heard by these witnesses were decidedly adverse to the defendant. Defendant was a stranger in the county. Deceased's family connections were numerous, prominent, and influential, and scattered over the county; especially the eastern part of the county, where was the largest white element. One of the jurors was, by affinity, related to the deceased-and yet seems not to have known it-in the fourth or fifth degree. So intense was the feeling roused against the defendant that mob violence threatened the jail, which had to be guarded. We will not enlarge further. Under this showing the venue should have been changed. Jamison v. People, 145 Ill. 357, 34 N. E. 486. See cases cited in notes to 3 Am. & Eng. Enc. Law (1st Ed.) p. 97; Johnson v. Com., 82 Ky. 116. The third instruction for the state is correct enough as an abstract proposition of law, but, as applied to the concrete case made by the testimony, should have added at the close, "If such personal timidity or needless fears are shown by the evidence beyond a reasonable doubt." The instruction that an ordinary pocketknife is not per se a deadly weapon, as matter of law, is one we are not prepared to approve. What is an ordinary pocketknife? The knife in this case was a four-bladed knife, about three inches long (closed), with a buckhorn handle. Dr. Ward testified that there were three parallel cuts on Saffold's face, apparently made "with a dull edge." It is proper to have the jury to say, as a matter of fact, whether a weapon is a deadly weapon, and the court properly charged the jury for the defendant to this effect. Indeed, the series of charges given for the defendant in this case were abundantly liberal to the defendant, and were drawn with consummate skill; and, while pointing out these errors in the two charges named, we would not, for these errors, reverse the judgment. But the fifth charge for the state, while announcing a correct abstract proposition of law, is fatally erroneous as applied to the case made by the proof. There is an entire failure to show, in a proper sense, that Saffold begun the dimculty. We forbear to comment on the testimony, except as necessary in passing upon these charges. Judgment reversed, verdict set aside, and cause remanded for a new trial.

CAFFEY v. STATE. (Supreme Court of Mississippi. Dec. 26, 1898.) HOMICIDE-INSANITY-INSTRUCTIONS-BURDEN OF PROOF.

1. An instruction that, if the jury believed defendant sane at the time of the killing,

they should find him guilty of murder, without charging the necessity of finding the existence of malice, is error.

2. One defending on the ground of insanity need merely raise a reasonable doubt as to his sanity.

Appeal from circuit court, Montgomery county; W. F. Stevens, Judge.

W. M. Caffey was convicted of murder, and appeals. Reversed.

The defense was insanity, arising from an attack of epilepsy at the time of the homicide. At the trial it was shown that appellant had been for many years, and was at the time of the killing, subject to epileptic spasms, and that on these occasions sometimes appellant becomes violent and dangerous. On the day of the killing, while the deceased was engaged in conversation with James Caffey and H. M. Caffey, the father of appellant, appellant walked up, and spoke to them. In a few minutes H. M. Caffey, noticing a spell coming on appellant, took hold of him. Appellant became very violent, and wrested his father's stick from his hands. James Caffey then took hold of him, and appellant told him to turn him loose, or he would cut him. James Caffey then turned him loose, and he then cut the deceased two or three times, inflicting wounds from which he died in a short time. The fourth instruction for the state is as follows: "(4) The court instructs the jury that every man is presumed to be sane until his insanity is established." Appellant was convicted, and sentenced to the penitentiary for life, and from this judgment an appeal was prosecuted.

Sweatman, Trotter & Knox and Southworth & Richardson, for appellant. Wiley N. Nash, Atty. Gen., for the State.

WHITFIELD, J. The first and second instructions for the state, both of which are to the same effect substantially, fall squarely within the condemnation of Kearney v. State, 68 Miss. 233, 8 South. 292. The sole defense being insanity from epilepsy at the time of the killing, these charges, in effect, told the jury, if they believed the defendant sane at the time of the killing, they should find him guilty of murder; that is, on proof of the killing only, thus assuming the existence of the malice aforethought essential to constitute murder. The fourth instruction for the state is also erroneous as applied, as here, to a criminal trial, where the defense is insanity. The defendant is not required to "establish his insanity," but merely to raise, by the testimony, a reasonable doubt as to his sanity, at the time of the commission of the alleged crime. Ford v. State, 73 Miss. 739, 19 South. 665; Hawthorne v. State, 58 Miss. 787. The case made by the proof is not one where these errors can be said to be not reversible errors. Judgment reversed, verdict set aside, and cause remanded for a new trial.

SMITH v. STATE. (Supreme Court of Mississippi. Dec. 26, 1898.) CARRYING CONCEALED WEAPONS-EVIDENCE.

The evidence of the state on a charge of carrying a pistol concealed was that accused held in his hand a pistol, and was pointing it, but there was no evidence of concealment. The evidence of accused's companion showed that if accused had a pistol, as shown by the state, he must have had it concealed on his person before and after the act of pointing it. Held to sustain a verdict of guilty.

Appeal from circuit court, Union county; Z. M. Stephens, Judge.

Ed. Smith was convicted of carrying a pistol concealed, and he appeals. Affirmed.

C. Lee Crum, for appellant.

TERRAL, J. The defendant appeals from a conviction of carrying a pistol concealed. Bob Walker, the sole witness for the state, testified that on a Sunday in May, 1897, at Spring Hill Baptist Church, he, with another person (since dead), met and talked with Smith and Darden; that Smith and Darden walked in the direction of the spring, and witness and Potts towards Potts' residence; that, hearing Smith exclaim that he was not going another step, he looked towards Smith, who was some 20 or 25 yards distant from him, with nothing intervening except the line of yard palings, and saw him plain enough in the act of pointing a pistol; that it looked as if he was going to shoot; that what he had in his hand was something exactly like a pistol; that it must have been a pistol, and that he had no doubt of it, though it could have been an imitation pistol; and that he did not see the trigger, hammer, or hole in the barrel. Walker's testimony, if fully credited, authorized the jury to believe that Smith had a pistol in his hand, but by him there was no evidence of any concealment of the pistol. | The court declining to exclude Walker's evidence, the defendant introduced Darden, the companion of Smith, whose evidence showed that if Smith had a pistol in his hand, as testified by Walker, he must have had it concealed upon his person immediately before it was seen by Walker, and that he must have immediately thereafter concealed the same on his person. Whether the jury is justified in their verdict is settled by their finding. Affirmed.

BUTLER et al. v. STATE. (Supreme Court of Mississippi. Dec. 26, 1898.)

CONFESSIONS-REBUTTAL-ERROR.

Where, on the opening, the trial judge excluded confessions of accused, as not being shown to have been free and voluntary, it was error to admit them in rebuttal of accused's testimony.

Appeal from circuit court, Monroe county; E. O. Sykes, Judge.

George Butler and Ed. Thompson were convicted of a crime, and they appeal. Reversed.

Geo. C. Paine, for appellants. Wiley N. Nash, Atty. Gen., for the State.

WHITFIELD,

J. The learned circuit Judge first properly excluded all the confessions of George Butler, including the one to which the magistrate had improperly sworn him in the face of section 1463 of the Code of 1892, as not being shown to have been free and voluntary, on the whole testimony on that subject. But he then allowed the state to introduce this properly excluded confession before the magistrate in chief, and all the other confessions previously properly excluded, by way, it is said, of rebuttal of the defendant's testimony. But if the confessions were not shown, beyond a reasonable doubt, to have been free and voluntary (Williams v. Board, 72 Miss. 121, 20 South. 860), they could not be put in evidence by way of rebuttal. That would be to allow the state to get the benefit of them as substantive confessions freely made, by way of rebuttal, though not freely and voluntarily made. Besides, as we understand the testimony of Butler, much of the testimony of Drake and McKinney was not in rebuttal of Butler's testimony, even as to the confessions. His testimony in chief related mostly to explaining how he came, as he says, to make the sworn confession before Sims. The testimony in rebuttal embraced, as to confessions, all that he had said before Sims, or to McKinney or Drake elsewhere. But none of the testimony of Drake and McKinney as to these confessions, which the court had previously correctly held involuntary, was competent by way of rebuttal, for the reason stated,-that that would be to allow the state to prove against the defendant, as his substantive confessions freely and voluntarily made, the very same confessions which the court had excluded as involuntary. The error of the circuit judge was in not adhering to his first view. Reversed and remanded.

YOUNG v. STATE.

(Supreme Court of Mississippi. Dec. 26, 1898.) CRIMINAL LAW-REVIEW.

Where there is no bill of exceptions in the record, and nothing more appears than a simple statement of conviction and sentence, a conviction will be affirmed.

Appeal from circuit court, Winston county; G. B. Huddleston, Judge.

Henry Young was convicted of grand larceny, and he appeals. Affirmed.

TERRAL, J. The defendant, being convicted of grand larceny, and sentenced to the penitentiary for two years and six months, appeals to this court. We find nothing in the record but the simple statement of his conviction and sentence, no bill of exceptions having been taken; and we see no ground for a reversal. Greenleaf says: "Conclusive

proceedings. 'Res adjudicata pro veritate accipitur.'" 1 Greenl. Ev. § 19, note 1. Affirmed.

(77 Miss. 194)

ADAMS, State Revenue Agent, v. YAZOO & M. V. R. CO. et al.

YAZOO & M. V. R. CO. et al. v. ADAMS, State Revenue Agent.

(Supreme Court of Mississippi. Nov. 28, 1898.) SUPREME COURT-REMAND-ADDITIONAL OPINION -CONSTITUTIONAL LAW.

1. The opinion of the supreme court in a decision reversing and remanding a cause need not accompany the mandate to the lower court.

2. Where the supreme court at the time of reversing and remanding a cause files a summary of its holdings, it may, in its opinion filed after a trial of the remanded cause, include additional reasons for reversing the cause, not stated in the summary.

3. That the opinion of the supreme court reversing a cause, filed after such cause has been retried in the lower court, contains additional reasons for such reversal, not stated in the summary of holdings, is not a violation of Const. U. S. Amend. 14, as not being due process of law.

Motion to strike from the files the opinion of the court, reported in 24 South. 200. Motion denied.

Appellee and cross appellants, the railroads, made a motion to "strike from the files in said cause the document herein filed on the 22d day of November, 1898, which purports to be the opinion herein of a majority of this court, for the reasons following: (1) For that the same is filed too late, being filed after the said cause was remanded to the lower court to be tried anew, and that the same did not, and could not, constitute any part of the mandate of this court to the court below, and could not be, and was not, attached to said mandate, and that the said document was not, and could not be, furnished with said mandate, for the use of the court below and of these parties, at the June term, 1898, of said court below; and at said June term these parties, defendants below, were forced into trial of said cause, and to final judgment therein, from which judgment these parties did on the day of

1898, and before the filing of said document, prosecute their appeal to this court, which appeal was pending herein on said 22d of November, 1898, and that said document announces decisions on points of law alleged to be controlling in this cause and in said appeal now pending, additional to and different from any decision announced in the abstract of a proposed opinion which was filed herein on the 20th day of June, 1898, and certified to the court below with the mandate as the opinion of this court, all of which is in violation of the statutes of this state in such case provided. (2) For the further reason that the filing of such document on the 22d of November, 1898, under the facts and circumstances herein before set forth, and the

of this court, is in violation of the fourteenth amendment to the constitution of the United States, not being due process of law."

Mayes & Harris, for the motion. J. A. P. Campbell and Critz & Beckett, opposed.

WHITFIELD, J. Section 4352 and section 4381 of the Code of 1892 were fully complied with by the summary of holdings handed down in June last, certified to and used in the circuit court on the trial of the case after it was remanded. Every reason for decision contained in that summary is also set out in the opinion filed recently, insisted on, and enforced. 24 South. 200. The court has receded from no position in that summary announced. It has added one new reason, and one only, for the decision: That the exemption was repealed by legislation, to wit, the act of 1886, and the provisions of the Code of 1892. With this single exception, the reasons given for decision in the summary are identical with the reasons given in the opinion now on file. And it is too plain for argument that, had the new reason for decision now set out in the opinion been also set out in the summary, the circuit court would merely have had one more reason for sustaining the action it took. The railroad companies were not, and could not possibly have been, prejudiced by the fact that the summary did not contain this additional reason. Nor is it now, nor can it be, prejudiced by the fact that the opinion does not contain this one additional reason for our decision.

Other views of counsel are adverted to in the opinion, but it is distinctly declared that as to them we decide nothing,-not adopting them in any wise as reasons for decision. Moreover, we distinctly stated in the summary: "There are other views, leading to the same conclusion, which we may embrace in the opinion yet to be filed. What we have said is a mere summary of the holdings set forth." And at the last term of this court a motion was made to have a fuller opinion handed down then, before the trial in the circuit court, based on section 4352, Code 1892, which we overruled on the ground that the summary was a sufficient compliance with that section, and should stand as the opinion of the court for the time being. The argument made then, and repeated now, as to this, was that the law requires the opinion to accompany the mandate, and that the court below could not proceed without both. This point was disposed of adversely to this contention in Foster v. Jordon, 54 Miss. 510, the court saying: "This is an erroneous conception of the province of the mandate. It is the judgment of this court reversing and remanding a case which gives the lower court authority to enter upon a new trial." And the opinion of this court is not more necessary to the jurisdiction of the circuit court than the mandate. Both are mere matters