fied to testify when brought, and never to bring a person who could not testify when brought by reason of his being disqualified as a witness.

A second reason is because, while the above construction gives no force to the statute, there is another construction which is reasonable and gives force and efficacy to it. It is this: That previous to 1879, under our criminal code, a very great number of persons who were convicted of certain classes of felonies were not rendered by reason of such conviction incompetent to testify as witnesses, and it does no violence to reason to hold that it was the intention of the Legislature in enacting the section in question, while it is broad enough to include all who were under sentence for felony, to make it peculiarly apply to that class of felons who were not by reason of their conviction disqualified as witnesses.

Section 9, article 13, of the Constitution of 1820, and section 18, article 1, of the Constitution of 1865, provide that "in all criminal prosecutions the accused has the right to have compulsory process for witnesses in his favor."

In the Constitution of 1875, section 22, article 2, it is provided that "in all criminal prosecutions the accused shall have the right to have process to compel the attendance of witnesses in his behalf."

The learned counsel for respondent insist that the change of the words as found in the Constitution of 1820 and 1865 "to have compulsory process for witnesses in his favor" to the words as found in the Constitution of 1876, "to have process to compel the attendance of witnesses in his behalf," has worked such a change as to give some additional right to a person criminally charged which he did not have under the Constitutions of 1820 and 1865, and a change so radical as to bring said section 4031 in conflict with the Constitution, and operate as a repeal of it.

While there is a change in wording, a change in the form of expression, the phrase as used in the Constitution of 1820 and 1865 means the same thing as that which is used in the Constitution of 1875.

Compulsory process for a witness signifies and means a process that will compel the attendance of such witness, a process that will bring a witness into court who refuses to come without it. And nothing is added to the force of a provision which gives the accused the right to have compulsory process by altering the form of expression so as to give him the right to have process to compel the attendance of witnesses in his behalf. Both forms of expression convey to the mind precisely the same meaning.

In the Constitution of 1820 and 1865 the form of expression that the accused "has the right to have compulsory process for witnesses in his favor" was changed in the Constitution of 1875 so as to read "shall have the right to process to compel the attendance of witnesses in his behalf," and it might as well be argued that change of the words "has the right " to the words **shall have the right," and change of words "witnesss in his favor" to "witnesses in his behalf" altered the meaning of the section, as to argue that the meaning of the clause as contained in the Constitutions of 1820 and 1865 "to have compulsory process for his witnesses," was either altered or enlarged by changing the form of expression so as to read, "to have process to compel the attendance of witnesses." It therefore follows from what has been said that if said section 4034 is invalid under the Constitution of 1875, it was also invalid under the Constitutions of 1820 and 1865. And although it stood on the statute books of the State thirty years before the Constitutions of 1865 and 1875 were framed, the framers of those Constitutions did not make the discovery that it was invalid, nor provide against it, nor has it been as before stated assailed till now. I do not make this statement to give olor or countenance to the idea that an act of the

Legislature which is unconstitutional at its inception is rendered valid by having remained on the statute books, unassailed, for more than half a century, or to the idea that such a statute ought not, because of its antiquity, to be declared void, but to deduce from its nonassailment for so long a time the presumption that its unconstitutionality is neither so apparent or clear as counsel contend it is, or else it would in all probability not have been re-enacted through a long series of years or remained free from attack.

But casting aside this presumption, we are of the opinion that the statute in question is valid.

The Constitution which confers upon a person criminally charged the right to compulsory process for witnesses also declares and casts upon the Legislature the duty and power of enacting laws for the punishment of crimes, and in the exercise of this power laws have been enacted providing that persons convicted of certain felonies shall be punished by imprisonment in the penitentiary for a term of years, in no case less than for two years. The effect of these laws is to bring together in one place this criminal class from all parts of the State and aggregate them into a community separate and distinct from all others and now numbering about 1,600 persons. For such as this, composed in the main of lawless and desperate men with all their civil rights, suspended during the respective terms of their imprisonment, as declared by section 1667, Revised Statutes, provision must be made for their safe keeping and regulations made for their government and control, and to accomplish these ends this class of persons have been put by the Legislature under the control and management of a warden, deputy warden, guards, etc., and confined in a place called the penitentiary, with strong walls, guarded by armed men to prevent their escape in the day-time, and with secure cells in which they are locked at night. We do not believe that the Legislature, in the exercise of their right to make regulations for the government for the class of convicts, transcended its power by providing, as has been done, by said section 4031, that the warden having them in custody should not be required to take such convicts and surrender them to the various courts of the State to testify as witnesses. Such a regulation we do not regard as unreasonable, but as one proper to be made in view of the fact that the thing prohibited, it allowed to be done, would interfere with the government of such convicts by affording them facilities for escape, and for the time being put it out of the power of the warden, the chief and controlling officer of the penitentiary, to exercise that supervisory control so essential to the management of such a community of persons put by law in his charge, and besides this it would place the convict in such position that it would be in his power to exchange imprisonment in the penitentiary with hard labor for simple imprisonment in a county jail without labor by his refusal when produced in court to answer proper questions or to testify at all, in either of which events the court could commit him to the jail of the county.

This is not an argument ab inconvenienti, but is made for the purpose of showing that the regulation made by said section 4031 is a reasonable and proper regulation and therefore one within the power of the Legislature to make, and that the right given to those criminally charged is to that extent subordinated to the power conferred upon the Legislature over this class of persons.

The power of the Legislature to provide a penitentiary in which all persons from every portion of the State who are or may be convicted of certain felonies are to be confined, carries with it necessarily the power to make such regulations for their government and detention therein as are reasonable and in its judgment nccessary to keep them safely where the sentence of the court puts them.

The power of the Legislature to provide that all per

sons convicted of felony shall forever be disqualified is undisputed, and inasmuch as the greater includes the less, their power to provide that such persons shall not for the time they are undergoing sentence of imprisonment in the penitentiary be taken therefrom into the various courts of the State, logically follows and is equally indisputable, and said section 4031 does nothing more than this.

The sacred right of one criminally accused to have process to compel the attendance of his witnesses stands upon the same footing as other rights conferred and secured by the Constitution, and all of them are equally sacred and should be considered alike and with reference to each other, so as to avoid conflict.

The Constitution provides that private property shall not be taken for private use, but notwithstanding this we have a statute which requires railroad companies to pay to the owners of stock killed on their roads by reason of their failure to erect fences along the sides of their roads not only the actual damages sustained, but double the amount of such damages, which is to that extent a taking of private property for a private use, and although the Constitution forbids this being done, the statute has been held to be valid in several decisions of this court, notably so in the case of Humes v. Missouri Pacific Railway Company, 82 Mo. 221, the judgment in which case was, on appeal to the Supreme Court of the United States, affirmed. In that case twenty or thirty statutes which have stood upon the statute book are grouped together, in which double and treble damages are allowed in the classes of cases specified. And what is there said with reference to these statutes may be applied to the one under consideration.

"Some of these statutes are old and historic. They are interwoven with the legislative policy of the State. Their long continuance justifies the presumption that the people and their law-makers have found them preservative of the public welfare and a shield of just protection to private property.

"Why therefore in respect to the constitutional provision under consideration, should the framers of the Constitution of 1875 intend by the general language employed to sweep away all the sanctioned legislative enactments? Is it not reasonable to assume that had it been in the mind of the framers of the Constitution to strike so deep into the body of the legislative branch of the government, that they would have done so by the employment of words so direct and pertinent as to have made the purposes unmistakable?"

It is provided in the Constitution that when private property is taken for public use and the owner thereof is damaged thereby, that compensation therefor shall be made by the payment of the same to him or into court for him before his proprietary rights shall be disturbed.

In the case of St. L. & S. F. Co. v. Evans & Howard Brick Company, 85 Mo. 307, certain sections of the statute relating to condemnation proceedings were drawn in question as being in conflict with the constitutional provision above referred to, and the court, speaking through Justice Sherwood, in effect said: "That Constitutions are instruments of a practical nature to be construed with the help of common sense; "that it would be doing violence to all known rules of interpretation to assume that those who framed or those who by their votes adopted our Constitution were actuated by no intelligent purpose in that behalf. On the contrary it must be assumed that they were familiar with the vicissitudes incident to condemnation proceedings and with the statutory provisions relating thereto.

And it is further said: "As the Legislature has revised the general law relating to condemnation of land it will be presumed that the attention was directed to the subject of the necessity of conforming that law to

the constitutional provisions, and such revision must be regarded as a legislative construction of that section of the Constitution under consideration, and that the general law is in conformity thereto. This legislative exposition is entitled to some weight as the authorities show, and the courts may rely with some confidence upon the conclusion reached by the Legislature, and the statute is to be viewed, pro hac vice, in the same light as though the Legislature had enacted a new statute in compliance with constitutional requirements and had prescribed by law the manner in which compensation for land taken shall be ascertained. Prima facie this law is constitutional, and conforms in all essential particulars to the organic law, and the well-known rule of construction applies, that a statute is not to be presumed repugnant to the Constitution until such repuguance is made to appear beyond a doubt." "As a conflict between the statute and the Constitution is not to be applied, it would seem to follow that where the meaning of the Constitution is clear, the court, if possible, must give the statute such a construction as will enable it to have effect."

In the case before us, section 4031 was enacted in 1835, and was a legislative construction of the Constition of 1820 in regard to compulsory process for witnesses. So it was thus construed by the re-enactment of the section in 1845 and 1855. So it was thus construed in 1865, under the Constitution of 1865, and also under the Constitution of 1875, by the revision of 1879. So that if a single legislative construction of the Construction has been put on a clause of the Constitution for more than fifty years and by five Legislatures at the end of each decade of ten years.

So in the case of State v. Whitten, 68 Mo. 92, the court held, speaking through Sherwood, J., that it was in the discretion of the court to limit the number of witnesses to be heard on an issue pending upon an application for a change of venue in said case, although it would seem that the constitutional provision giving process to compel the attendance of witnesses was broad enough to give him a right to all his witnesses without reference to their number, and yet it was held in the above case that the court had the right, as it did in the case, limit the number to six, and it may be proper to say that the reasoning contained in the opinion fully justifies the conclusion reached.

What is said in the case of the State v. Able, 65 Mo. 357, may not be inappropriate here, to the effect that "if either department of the Government may lightly overstep the limits of its constitutional powers, it should be that one whose official life would soon be at an end. It has the least motive to usurp power not given, and the people can sooner relieve themselves of its mistakes. Herein is a sufficient reason that the courts should never strike down a statute unless its conflict with the Constitution is clear. The judiciary ought to concede to the Legislature as much purity of purpose as it would claim for itself, as honest a desire to obey the Constitution and also a high capacity to judge of its meaning. Of course the Constitution is above and paramount to all statutes, and where there is a clear and manifest conflict between the two the former must prevail over the latter."

For the reasons given we are of the opinion that the prisoner is entitled to be discharged from his imprisonment by the sheriff of Cole county, and he is hereby discharged.

Judges Ray, Black and Brace concur; Judge Brace concurring in the result and Judge Black in a separate opinion; Judge Sherwood dissents.

D. conveyed to plaintiff by warranty deed a house and lot for the consideration of $1,500, in part payment of which the plaintiff gave back to D. a mortgage of $1,363.81, payable in installments. Upon the same with other property there were two prior mortgages, the first one of which, of about $5,000, was held by the defendant, and the other, of about $4,000, was held by M. Plaintiff, before this mortgage became due, and on the 22d day of July, 1876, paid the amount thereof, being $1,393.33, to the defendant. The defendant then had possession of the mortgage. There was a conflict of evidence as to the circumstances under which the bank took the plaintiff's mortgage. It was claimed on the part of the plaintiff that the bank held it as collateral security for certain obligations held by the bank against Dygert, and therefore that it had an interest in the security when it was paid to the bank by the plainiiff. The bank, on the other hand, insisted that it held the mortgage simply as the custodian of Dygert, for the simple purpose of receiving payments which might be made thereon by the plaintiff. The issue was sharply contested, and was found by the jury against the defendant. So also there was a conflict of evidence as to the verbal agreement alleged by the plaintiff to have been made by the defendant, through its cashier, with him, to the effect, that if the plaintiff would pay the mortgage to the bank, the bank would release their mortgage on the plaintiff's lot, and would also procure for the plaintiff a release of the Rasbach and Myers mortgage. This issue also the jury found against the defendant, and in favor of the plaintiff. The findings of the jury upon these issues are not unsupported by evidence, and this court cannot review their decision on the facts. Upon the findings of the jury there was ample consideration for the agreement of the bank to procure a release of the Rasbach and Myers mortgage. It must be assumed that the plaintiff paid his mortgage to the bank before maturity, upon the faith of the promise of the bank. He thereby changed his position and did what he was under no obligation to do. The agreement was not within the statute of frauds. The undertaking of the bank was original and not collateral. Prime v. Korhler, 77 N. Y. 91; Milks v. Rich, 80 id. 269, and cases cited. Nor was it a contract for the sale of lands or of any interest in lands. We are also of opinion the contract on the part of the bank was not ultra vires. The bauk had an interest in securing payment of its obligations against Dygert. The arrangement with the plaintiff was an ordinary business transaction, and within the usual power of a business corporation, and although an agreement by a bank to procure a release of a mortgage held by a third person is not primarily an agreement relating to banking, yet when made to secure payment of a debt due to the bank, it cannot be said to be foreign to the purposes, or beyond the powers of the corporation. March 1, 1887. McCraith v. National Mohawk Valley Bank. Opinion per Curiam.

CRIMINAL LAW-RAPE-PREVIOUS ATTEMPT-DISCLOSURE TO THIRD PERSON-UNEXPLAINED DELAY.

(1) Upon the trial of an action for rape, it is com. petent for the prosecution to prove by the complainant that four days before the act complained of, the defendant made an unsuccessful attempt to commit the same offense upon her. It is quite true that it is a general rule of law that upon the trial of a prisoner for one offense, it is improper to prove that he has been guilty of other offenses; as where a prisoner is put upon trial for larceny, or burglary, or murder, it is incompetent to prove that he has been guilty of other larcenies, or burglaries, or murders, or other crimes. In this case it would have been incompetent to prove that the defendant had committed, or attempted to commit, a rape upon any other woman.

But where a prisoner is tried for a particular crime, it is always competent to show upon the question of his guilt that he had made an attempt at some prior time, not too distant, to commit the same offense. Upon the trial of a prisoner for murder it is competent to show that he had made previous threats or attempts to kill his victim. People v. Jones, 99 N. Y. 667. Upon the same principle, it must always be competent to show that one charged with rape had previously declared his intention to commit the offense, or had previously made an unsuccessful attempt to do so. In this case, if witnesses other than the complainant could have been called, who witnessed the unsuccessful attempt of the defendant to ravish the complainant four days before the crime was in fact accomplished, no one would have questioned the competency of their evidence. And the evidence is not rendered incompetent because it comes from the complainant herself. It is not as valuable or trustworthy or important as if it had come from other witnesses. It probably did not have a very important bearing with the jury, because unless they believed her evidence as to the principal offense, they would not believe her evidence as to the prior attempt. But it may have had some tendency to corroborate her story as to the principal offense, and thus may have had some weight with the jury. But whether it was important or not, there is no rule which condemns it, and there is abundant authority to justify its reception. Whart. Crim. Ev. 35, 46, 49; State v. Knapp, 45 N. H. 156; Strang v. People, 24 Mich. 6; Sharp v. State, 15 Tex. App. 171; Reg. v. Rearden, 4 F. & F. 76; Regina v. Jones, 4 L. R. 154; Rex v. Chambers, 3 Cox Crim. Cas. 92; Williams v. State, 8 Humph. 585; State v. Walters, 45 Iowa, 389; Com. v. Nichols, 114 Mass. 285; Com. v. Lahey, 14 Gray, 92; Com. v. Merriam, 14 Pick. 518; State v. Marvin, 35 N. H. 22; State v. Wallace, 9 id. 513; State v. Way, 5 Neb. 287; Lawson v. State, 20 Ala. 65. (2) The rule which admits evidence of a disclosure made by the complainant to a third person, that the crime of rape had been committed upon her, requires that such disclosure should be recent, and made at the first suitable opportunity. A disclosure made by the complainant nearly eleven months after the crime was alleged to have been committed should not be received in evidence in the absence of any reasonable excuse justifying the long delay. Citing Baccio v. People, 41 N. Y. 265; Higgins v. People, 58 id. 377; 1 Hale Pleas Crown, 632; 1 East Pleas Crown, 445; 4 Black Com. 214. Any considerable delay on the part of a prosecutrix to make complaint of the outrage constituting the crime of rape is a circumstance of more of less weight, depending upon the other surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A want of suitable opportunity or fear may sometimes excuse or justify a delay. There can be no iron rule on the subjeet. The law expects and requires that it should be prompt, but there is and can be no particular time specified. The rule is founded upon the laws of human nature, which induce a female thus outraged to complain at the first opportunity. Such is the natural impulse of an honest female. In Connecticut a more liberal rule as to the disclosures made by a prosecutrix has been adopted than prevails in this State. State v. De Wolf, 8 Conn. 93; State v. Byrne, 47 id. 465. There it may be proved, not only that she made disclosures of the crime, but the details of the crime as she disclosed them may also be proved. In the two cases cited the disclosures were made after a much longer time than in any other case which has come to our attention. In the first case the complainant was deaf and dumb, and the disclosure was made more than a year after the commission of the crime. But there she was prevented from making the disclosure by the threats and

influence of the prisoner over her, and it was held that her mental and physical condition were such as to furnish her an excuse for not making an earlier disclosure. In the other case the complainant did not make the disclosure until more than a year and a half after the commission of the crime. But she was only twelve years old, and the defendant was her stepfather, and she was living in his family, and he threatened to take her life if she told her mother or anybody else what had happened. Under such circumstances it was held to be for the jury in weighing her evidence to determine what effect should be given to her failure to make an earlier disclosure. It will be seen from these authorities that the very reason upon which the rule is based for the reception of such evidence requires that the disclosure should be recent, and made at the first suitable opportunity. But there may be circumstances which will excuse delay, as when the prosecutrix is under the physical control of the defendant, when she is among strangers, and there is no one in whom she can confide, when she is induced to silence by threats, and is so far within the power or reach of the defendant that the threats may be executed. In such and other like cases delay may be excused and the disclosure may be proved and all the facts submitted to the jury for them to determine what weight shall be given to the disclosure and what effect the delay shall have. March 1, 1887. People v. O'Sullivan. Opinion by Earl, J.

TAXATION-DELIVERY OF ASSESSMENT-ROLL-NOTICE -ACT OF 1880, CH. 269.-A failure to comply with section 9 of chapter 269, Laws of 1880, which requires that the completed and verified assessment-roll shall be delivered to the town clerk "on or before the first day of September," will not render the assessment void. The sole object of the provision of the act requiring

the assessors to publish a notice of the delivery of the assessment-roll to the town clerk is to set running the fifteen days within which parties aggrieved may sue out their writ. Omission to publish the notice does not affect the validity of the assessment. March 8,

1887. People v. Assessors of Wilson. Opinion by Finch, J.

UNITED STATES SUPREME COURT ABSTRACT.

APPEAL CERTIFICATE OF DIVISION OF OPINIONNATIONAL BANK - EMBEZZLEMENT - INDICTMENT.(1) The act of Congress which authorizes any question, upon which the judges of the United States Circuit Court are divided, to be certified to the Supreme Court, does not authorize the certificate of a division of opinion upon a question so vague and general as whether "either of the counts of the indictment charges the defendants with an offense under the laws of the United States." (2) Rev. St. U. S., § 5209, punishing the president, cashier, or agent of any national bank who shall embezzle or misapply any of its funds, an indictment under the statute, charging the defendant with committing the offense charged as president and agent, is good. (3) Rev. St. U. S., §5209, punishing the president, cashier, or agent of any national bank who shall embezzle or willfully misapply any of its funds, an indictment under the statute charging that the funds alleged to have been embezzled were at the time in the possession of the defendant as president and agent, means that they had come into his possession in his official character, so that he held them in trust for the bank, and fully and exactly describes the offense of embezzlement under the act. But so far as the indictment charges defendant with a willful misapplication of the funds of the bank, it is not necessary to allege that they had previously been intrusted

to the defendant. A willful and criminal misapplication of the funds of the association may be made by an officer or agent of the bank without having previously received them into his manual possession. In the case of U. S. v. Britton, 107 U. S. 655, the offense of willfully misapplying the funds of a banking association, as defined by the statute, was considered with reference to the facts in that case. It was there held that a willful and criminal misapplication of the funds, as defined by section 5209, did not include every case of an unlawful application of funds, inasmuch as in the very statute itself there were other instances of unlawful misapplication evidently not embraced within the intention of section 5209. For that reason it was held in that case that it was necessary to specify the particulars of the application, so as to distinguish that charged in the indictment as willful and criminal from those others contemplated by the statute which were unlawful but not criminal; and it was held to be of the essence of the criminality of the misapplication that there should be a conversion of the funds to the use of the defendant, or of some person other than the association, with intent to injure and defraud the association, or some other body corporate or natural person. Now if in addition it be necessary to the commission of the offense of willfully misapplying the funds of the bank that they should have come previously into the possession of the defendant in his official capacity, so that he could be said to have been intrusted with their possession, all distinction between the offenses of willfully misapplying the funds and of embezzlement would disappear. But it is evidently the intention of the statute not to use the words "embezzle" and "willfully misapply" as synonymous. In order to misapply the funds of the be in actual possession of them by virtue of a trust bank it is not necessary that the officer charged should committed to him. He may abstract them from the other funds of the bank unlawfully, and afterward criminally misapply them, or by virtue of his official relation to the bank he may have such control, direc

tion, and power of management as to direct an applica

tion of the funds in such a manner and under such circumstances as to constitute the offense of willful misapplication. And when it is charged, as in the counts of this indictment, that he did willfully misapply certain funds belonging to the association by causing them to be paid out to his own use and benefit in unauthorized and unlawful purchases, without the knowledge and consent of the association, and with the intent to injure it, it necessarily implies that the acts charged were done by him in his official capacity, and by virtue of power, control, and management which he was enabled to exert by virtue of his official relation. This, we think, completes the offense intended by the statute of willful misapplication of the moneys and funds of a national banking association. (4) Rev. St. U. S., § 5209, punishing the president, cashier, or agent of a national bank embezzling or willfully misapplying its funds, and any person aiding or abetting any officer, clerk, or agent in any such act, an indictment charging the president of the bank with aiding and abetting one who is alleged to be cashier to misapply the funds of the bank, need not charge that the president knew that such person was cashier. (5) Rev. St. U. S., § 5209, punishing the president, cashier, or agent of any national bank who shall embezzle, abstract, or willfully misapply any of its funds, with intent to injure or defraud the bank. or any other person, or to deceive any officer of the bank, held, the offense of abstracting the funds of the bank under this section is not so equivalent to the offense of larceny that, in an indictment for the abstracting, the offense must be described by the words used to describe larceny. It is true that the word "abstract," as used

in this statute, is not a word of settled technical meaning like the word "embezzle," as used in statutes defining the offense of embezzlement, and the words **steal, take, and carry away," as used to define the offense of larceny at common law. It is a word however of simple, popular meaning, without ambiguity. It means to take or withdraw from; so that to abstract the funds of the bank, or a portion of them, is to take and withdraw from the possession and control of the bank the moneys and funds alleged to be so ab. stracted. This, of course, does not embrace every element of that which under this section of the statute is made the offense of criminally abstracting the funds of the bank. To constitute that offense, within the meaning of the act, it is necessary that the moneys and funds should be abstracted from the bank without its knowledge and consent, with the intent to injure or defraud it, or some other company or person, or to deceive some officer of the association, or an agent appointed to examine its affairs. All these elements are contained in the description of the offense in the count in question. The count is therefore sufficient within the decisions of this court upon similar statutes. U. S. v. Mills, 7 Pet. 138; U. S. v. Simmons, 96 U. S. 360; U. S. v. Carll, 105 id. 611; U. S. v. Britton, 107 id. 655. Unlike the word "misapply," as used in the same section, the word "abstract" is not ambiguous, because it does not appear from other parts of the statute that there are two or more kinds of abstracting, both unlawful, but only one described as a criminal offense. The word "abstract," as used in the statute therefore has but one meaning, being that which is attached to it in its ordinary and popular use. It is to be accepted with that meaning in framing an indictment under the section, which is not required, in order to be sufficient, to contain more than those allegations which are necessary, when added to the allegation of abstracting, to complete the description of the offense intended by the statute. This the count in question sufficiently does. (6) Rev. St. U. S., § 5209, punishing the president or other officer of any national bank who embezzles or willfully misapplies any of its funds, held, an indictment under the statute charging one with the offense as president of a certain national bank, "duly organized and doing business at the village of," etc., sufficiently states that the bank was organized under the national banking act to carry on the business of banking. Feb. 7, 1887. United States v. Northway. Opinion by Matthews, J.

COUNSEL.- -(1) Evidence in a criminal case, printed in a newspaper, is "a statement in a public journal," within the meaning of the act of Utah, declaring that no person shall be disqualified as a juror by reason of his having formed or expressed an opinion upon the matter or cause to be submitted to him, "founded upon public rumor, statements in public journals, or common notoriety, provided it appear to the court, upon his declaration under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters submitted to him." (2) The opinion of a physician, after making a post mortem examination of the deceased, who came to his death by a blow inflicted upon his head, as to the direction from which the blow was delivered, is admissible in evidence. The deceased came to his death from a blow inflicted upon the left side of his head, which crushed his skull. A post mortem examination of the body was made by a physician, who was allowed, against the objection of the defendant, to give his opinion as to the direction from which the blow was delivered, after he had stated that his examination of the body had enabled him to form an intelligent opin

ion upon that point. The ground of the objection was that the direction in which the blow was delivered was not a matter for the opinion of an expert, but one which should be left to the jury. The court overruled the objection, and the defendant excepted. The witness stated, as his opinion, that the blow was delivered from behind and above the head of the person struck, and from the left toward the right. This testimony was supposed to have some bearing upon the case when considered in connection with the fact that the accused was a left-handed man. The defendant now contends that it was error to admit the evidence, and that the error was not cured by striking it out and the instruction to the jury not to consider it at all. To this the answer is (1) that the evidence was admissible; and (2) that, if not admissible, the error was cured by the evidence being stricken out with the accompanying instruction. The opinions of witnesses are constantly taken as to the result of their observations on a great variety of subjects. All that is required in such cases that the witnesses should be able to properly make the observations, the result of which they give; and the confidence bestowed on the conclusions will depend upon the extent and completeness of their examination, and the ability with which it is made. The court below, after observing that every person is competent to express an opinion upon a question of identity, as applied to persons in his family or to handwriting, and to give his judgment in regard to the size, color, and weight of objects, and to make an estimate as to time and distance, cited a great number of cases illustrative of this doctrine. We quote a passage containing them. "He may state his opinion," says the court, "with regard to sounds, their character, from what they proceed, and the direction from which they seem to come. State v. Shinborn, 46 N. H. 497; Com. v. Pope, 103 Mass. 440; Com. v. Dorsey, 103 id. 412. Non-experts have been allowed to testify whether certain hairs were human (Com. v. Dorsey, 103 Mass. 412); that one person appeared to be sincerely attached to another (McKee v. Nelson, 4 Cow. 355); as to whether another was intoxicated (People v. Eastwood, 14 N. Y. 562); as to whether a person's conduct was insulting (Raisler v. Springer, 38 Ala. 703); as to resemblance of foot-tracks (Hotchkiss v. Germania Ins. Co., 5 Hun, 90); as to value of property when competent (Brown v. Hoburger, 52 Barb. 15; Bank v. Mudgett, 44 N. Y. 514; Bedell v. Long Island R. Co., id. 367; Swan v. Middlesex Co., 101 Mass. 173; Snyder v. Western Union R. Co., 25 Wis. 60; Brackett v. Edgerton, 14 Minn. 174: Gil, 134); as to market value of cattle, derived from newspapers (Cleveland R. Co. v. Perkins, 17 Mich. 296): whether there was hard pan in an excavation (Currier v. Boston & Maine R., 34 N. H. 498); whether one acted as if she felt sad (Culver v. Dwight, 6 Gray, 444); as to rate of speed of a railroad train on a certain occasion (Detroit, etc., v. Van Steinburg, 17 Mich. 99); as to whether noisome odors render a dwelling uncomfortable (Kearney v. Farrel, 28 Conn. 317); whether the witness noticed any change in the intelligence or understanding or any want of coherence in the remark of another (Barker v. Comius, 110 Mass. 477; Nash v. Hunt, 116 id. 237.)" Upon the same principle, the testimony of the physician as to the direction from which the blow was delivered was admissible. It was a conclusion of fact, which he would naturally draw from the examination of the wound. It was not expert testimony in the strict sense of the term, but a statement of a conclusion of fact, such as men who use their senses constantly draw from what they see and hear in the daily concerns of life. Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612620; 4 Sup. Ct. Rep. 533. But independently of this consideration, as to the admissibility of the evidence, if it was erroneously admitted, its subsequent with