NOTEWORTHY CRIMINAL CASES.

Allen v. State. (Fla.)

Improper Discharge of a Jury.-The silence of a person on trial, accused of crime, or his failure to object or protest against an unlawful discharge of the jury before verdict, does not constitute a consent or waiver of such discharge, or of his constitutional right not to be put twice in jeopardy for the same offense.

2. Wrongful Discharge of Jury. The power of the court to discharge a jury after it has been sworn in chief, before verdict, should be exercised only in cases of manifest, urgent or absolute necessity, and if the jury is discharged for a reason illegally insufficient and without an absolnte necessity for it, and without the defendants consent, the discharge is equivalent to an acquittal, and may be pleaded in bar to any further trial, or to any subsequent indictment.

3. What is former Jeopardy.-A person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance; and a jury is thus charged when it has been impaneled and sworn. 120 Amer. St. Rep. 188.

Commonwealth v. Deitrick. (Pa.)

Accidental Killing.-Under the plea of not guilty a person accused of murder may show that the killing was accidental, and if the testimony satisfies the jury that the killing was the result of an accident, it should return a verdict of not guilty.

2. Accidental Killing.-Burden of Proof in homicide cases where the defense of accidental killing is set up does not shift, but rests on the prosecution to show that the killing was willful or intentional.

3. Affirmative Defense-Amount of Proof.-In criminal cases in which the burden of proof is on the defendant to sustain an affirmative defense set up, it is only necessary to establish it by a preponderance of the evidence, and it is not required that it should be proven beyond a reasonable doubt.

4. Erroneous Instructions.-If clear error appears in the instructions to the jury upon the vital and controlling defense set up in a criminal case the appellate court cannot say that no harm was done the defendant, and therefore no reversible error was committed.

120 Amer. St. Rep. 861.

State v. Campbell.

1. An indictment signed "P., Prosecuting Attorney," was not objectional for failure to add the words "of Greene County, Missouri," the court being warranted in taking judicial notice of its officers, and of the fact that P. was prosecuting attorney, with jurisdiction in the county where the venue was laid.

.2.

An endorsement of an indictment, "This is a true bill. Marion Phillips, Foreman of Grand Jury. Filed Dec. 5th, 1095. Josiah M. Harrell, Clerk❞—was not objectional for failure to describe the court in which the indictment was found.

3. Where the court by its instructions correctly and fully covers every phase of the case to which the testimony is applicable, it is not error to refuse instructions requested by accused.

4. Instructions should not be given in a criminal case on any subject on which there is no evidence.

5. The giving of an erroneus instruction was not reversible error, where accused requested a similar instruction. 6. An instruction that, while it is the duty of a state to establish, beyond all reasonable doubt, the guilt of the defendant of the crime charged, it is not incumbent on defendant to prove his innocence, and though the testimony on defendant's behalf falls short of proving his innocence and though the jury may disbelieve all the evidence offered by defendant, yet if the evidence leaves a reasonable doubt in their minds, they are bound

to acquit, even if they believe defendant, or any, or all of the witnesses introduced in his behalf had sworn falsely, was erroneous as argumentative, and as a comment on the evidence.

7. In a prosecution for rape, an instruction on alibi that if defendant was not present at the time and place the offense was alleged to have been committed, he could not be convicted, was not erroneous as assuming that the offense was in fact committed.

8. The court in selecting a panel of jurors is not required to select an equal number from the two political parties.

An affidavit, made by prosecutrix in preliminary proceedings before a justice of the peace, should not be read by the prosecutor in his opening statement to the jury, nor until it had been received in evidence.

10. In a prosecution for rape, the state may prove improper acts and solicitations of sexual intercourse by accused toward prosecutrix prior to the rape charged, in order to show probable motive. 109 S.W. Rep. 706.

Commonwealth v. Loughhead.

· Killing to Prevent Escape.-If a misdemeanor has been committed, and is charged in the warrant, flight of the accused from an officer even after actual capture and custody, there having been no conviction, will not justify the use of a deadly weapon, and a killing in such a case is manslaughter at least.

2. Unjustifiable Killing.-In a case of arrest for misdemeanor, an officer is never required to retreat, and may meet force with force, but he cannot justifiably take the life of a person who is fleeing from arrest, or of one who has been arrested and has escaped from custody and is fleeing from him, when the charge is simply a misdemeanor.

120 Amer. St. Rep. 896.

REVIEWS.

THE COMMERCE CLAUSE

OF THE FEDERAL CONSTITUTION.

By Frederick H. Cooke.

Published by Baker, Voorhis & Co., Price $4.50

New York City.

During the last decade much discussion has been given to the subject of Interstate Commerce. It has been a topic in the legal periodicals and critically scanned by bench and bar. While at the time of the adoption of the Constitution the commerce of the United States was limited at home and abroad, it has since developed to such a magnitude that it almost over-shadows all others and in the universal discussion of its importance there has often been manifest a want of harmony even in the decisions of the courts adjudicating rights arising

therefrom.

Mr. Cooke as the latest writer on the subject has produced a most attractive book in five chapters which together with the latest citations make it almost indispensable to all who come in contact with this far-reaching subject. In the first he deals with the subject of Regulation; in the second the Powers of Congress relative thereto; in the third, the Power of Congress and that of the States respectively; in the fourth, the Power of the States specifically considered; and the fifth he devotes to taxes and other charges involved in the consideration of the subject treated.

The book presents many new and important thoughts and should be in the library of all up-to-date lawyers. It presents many matters of Federal cognizance that will appear in the new state and of which the lawyer should know and be prepard to meet from a legal standpoint. It contains a clear table of contents and a well arraigned index.

EDITORIALS.

We deeire to state that we cannot furnish to anyone back numbers of The Oklahoma Law Journal of April and July, 1908, at any price, except to new subscribers who pay for a full year's subscription. We have had so many calls for these two numbers, especially from real estate men who had not before been subscribers, that these two numbers are almost exhausted.

Hon. Sam Clough, formerly of Thomas, Oklahoma, has moved to Sulphur, Oklahoma, and opened a neat office in that city for the practice of the law. Mr. Clough is a graduate from the St. Louis Law School and has conducted considerable successful litigation in old Oklahoma. He had the confidence of all who knew him at his old home and we have no doubt of his future in his chosen City.

It is the opinion of Attorney-General West, that county attorneys are not compelled to, nor can they draw pay for appearing before the Supreme Court in the further prosecution of criminal cases appealed to that court from their respective counties.

Hon. W. S. Snoddy, the veteran lawyer of Alva, Oklahoma, died Aug. 18th, 1908, while at Montrose, Colorado on his summer vacation. While he was 72 years of age, he was at the time well and hearty. His body was brought home and buried at Alva. Čol. Snoddy as will be remembered was at the state election the republican candidate from his district for Judge of the Supreme Court. He was well known by the members of the bar as one of the strongest lawyers in the state and had the respect of all courts. He was born in Pennsylvania. At the breaking out of the civil war he enlisted in the Union Army and served with great credit; being several times promoted until he became the acting Colonel of his regiment. After the war, he studied law and came West first locating in Sedalia, Mo., then Medicine Lodge, Kansas. At the opening of the Strip, he came to Oklahoma, and settled at Alva, where he made himself felt as an able and successful lawyer. Colonel Snoddy will long be remembered and mourned by those who enjoyed his acquaintance and friendship.