Rev. St. 1899, § 4652, providing that, in actions where one of the original parties to the contract or cause of action in issue is dead, the other party to such contract or cause of action shall not be admitted to testify, does not preclude the surviving party to a contract from testifying to transactions and conversations had with the other party to the suit, who claims as assignee or donee of the deceased party to the contract, and is attempting to enforce the contract for his own benefit.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 630, 654.]

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by one Weiermueller against James Scullin. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff is the widow of Samuel Weiermueller. The evidence of plaintiff tends to show that on his deathbed Samuel Weiermueller handed plaintiff a piece of paper, on which was written the following: "St. Louis, Mo., August, 1889. James Scullin, Debtor to Samuel Weiermueller. To money loaned, $250.00." He said to her: "I will give this to you. You make the collection of it, and keep it yourself." Plaintiff testified that some time after the death of her husband she presented the account to Scullin, and he said that he owed it and would pay it to her as soon as he was able, and on May 6, 1897, he paid her $5 on the account, and thereafter, from time to time, up to and including September 14, 1901, he made small payments to her, ranging from $1 to $10, and aggregating the sum of $167.75; that after September 14, 1901, he refused to make any more payments on the account. Scullin testified over the objection of plaintiff as follows: "The first time she came she said, 'I understand that you have promised.' In the first place she said that she was very hard up, and said she did not have any money, and that she understood her husband to say that I have promised to pay him back some money that he had paid me for those teams, and I told her that that was right-that I had done that. She asked me how much it was, and I told her that it was $140, and I told her that I had promised him just before he died that I would do that, and that I would just as soon as I was able, and I did do it. I paid her from time to time $5 until I had it more than paid up. In fact, I kept giving her money until she came to me with her husband, and then I told her that that settled it; I wouldn't pay her any more; that I had more than paid her what I had prom

ised to pay her." He further testified that plaintiff never presented any account to him, and that he had never promised to pay her any more than $140, and that he had paid her over that amount; that he paid her more than he owed her husband, for the reason that her husband had been a particular friend of his, and that he had been in his employ for over 13 years, and he wanted to help his widow along; that in September, 1901, she came to him and told him that she was married again, and after learning this fact he refused to give her any more money. The verdict and judgment were for the defendant. Plaintiff appealed.

John J. O'Connor, for appellant. Scullin & Chopin, for respondent.

BLAND, P. J. (after stating the facts). Appellant's contention is that Scullin was an incompetent witness for any purpose, and cites section 4652, Rev. St. 1899, as sustaining this contention. Counsel misconceives the scope of that clause in the section which declares that "in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor," etc. Some of the earlier cases construing this clause of the section seem to lend some support to appellant's construction, but the later ones have given it a more equitable construction, and hold that the surviving party is not absolutely cut off from testifying at all, but is a competent witness to conversations, transactions, etc., had with and testified to by a living witness, in respect to the contract or cause of action in issue and on trial. Kirton v. Bull, 168 Mo. 622, 68 S. W. 927, and cases cited on page 631 of 168 Mo., page 929 of 68 S. W.; Eyermann v. Piron, 151 Mo. 107, 52 S. W. 229. As was said in Henry v. Buddecke, 81 Mo. App. 360: "The spirit of the statute is not to close the mouth of the living party to a contract, where the other party is dead, under all conditions and in every circumstance, but to close his mouth where to permit him to speak would give him an advantage which he would not have were the other party living." The transactions and conversation to which Scullin was admitted to testify were had with the appellant, a living person; and it would be a hard rule to admit plaintiff to testify to conversations and promises made to her by Scullin, and then deny him the right to contradict such conversations and agreements, if not true. This view of the competency of Scullin to give testimony he was admitted to give disposes of appellant's objection to the instructions given and refused by the court. The instructions given are supported by the evidence, and fairly and fully submitted all the issues to the jury. The judgment is affirmed.

REYBURN and GOODE, JJ., concur.

MAXEY v. STATE.

(Supreme Court of Arkansas. July 8, 1905.) 1. MISDEMEANORS PROSECUTION ON AFFIDAVIT APPEAL CIRCUIT COURT JURISDICTION.

The circuit court has jurisdiction of an appeal from a conviction before a justice of the peace on an affidavit charging violation of Kirby's Dig. § 1680, declaring that every person who shall convey into any jail anything useful to aid any prisoner in his escape shall be punished, etc.

2. CRIMINAL LAW CHANGE OF VENUE GROUND FOR Refusal.

Where, on application for change of venue in a criminal case on the ground of prejudice of the inhabitants, three of the witnesses who signed affidavits were examined by the court and found not to be informed as to the condition of the minds of the inhabitants, the action of the court in overruling the motion was not arbitrary.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 252, 253.]

3. SAME-CIRCUIT COURT RULE.

Failure to comply with a circuit court rule that, before a change of venue shall be granted in any criminal cause, written notice of the application therefor shall be given to the state's attorney three days prior to the application, is not of itself sufficient reason for denying a motion for a change of venue.

4. SAME-EVIDENCE-SUPPRESSION OF TESTI

MONY.

In a criminal prosecution, evidence that on the day before the trial defendant had assaulted one of the witnesses for the prosecution was admissible, as showing an effort to suppress testimony.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 782.]

5. SAME APPEAL-FAILURE TO EXCEPT AT TRIAL.

On appeal in a criminal case, objections to evidence which was not excepted to in the trial court will not be considered.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2662.]

6. SAME-HARMLESS ERROR.

The admission of incompetent evidence over objection is harmless, where the same facts are shown by other evidence not objected to.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3138.]

7. SAME-AIDING PRISONER TO ESCAPE.

On a prosecution for violation of Kirby's Dig. § 1680, punishing the conveying to a prisoner of any article designed to aid him in escaping, evidence that the prisoner whom it was charged defendant aided to escape was tried and acquitted was irrelevant, but harmless to defendant.

8. SAME-GENERAL EXCEPTION.

A general exception to evidence, not pointing out any specific objection, is insufficient to raise the question of error in its admission.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2671.] 9. SAME-ELEMENTS OF OFFENSE.

Under Kirby's Dig. § 1680, declaring that every person who shall convey into any jail any instrument proper or useful to aid any prisoner in his escape shall be guilty of a misdemeanor, whether such escape shall be effected or attempted, or not, the conveying to a prisoner of an instrument designed to aid him in escaping, with intent so to do, makes the crime complete, whether there is an acquiescence or co-operation on the part of the prisoner or not.

88 S.W.-64

10. SAME-ARGUMENT TO Jury.

In a criminal prosecution, remarks of a prosecuting attorney, merely drawing inferences from testimony before the jury, are not prejudicial.

Appeal from Circuit Court, Independence County; Frederick D. Feetherson, Judge. R. L. Maxey was convicted of a misdemeanor, and appeals. Affirmed.

The amended record brought here by the Attorney General shows that appellant was convicted before a justice of the peace of Independence county on a charge made by the affidavit of the prosecuting attorney under the following statute: "Every person who shall convey into any jail or place of confinement any disguised instrument, arms or other thing proper or useful to aid any prisoner in his escape, with the intent thereby to facilitate the escape of any prisoner lawfully committed to or detained in such jail or place of confinement, for felony or other criminal offense, or detained therein for any violation of any penal statute, or any civil action, whether such an escape shall be effected or attempted or not, shall be deemed guilty of a misdemeanor, and on conviction be fined in any sum not less than one hundred dollars and be imprisoned not less than six months." Section 1680, Kirby's Dig. He appealed to the circuit court, was tried by jury, again convicted, and fined in the sum of $100 and six months in jail, and appealed to this court. In the circuit court appellant moved for change of venue, supporting his motion by the affidavits of himself and four others to the effect that the minds of the inhabitants of Independence county were so prejudiced against him that he could not obtain a fair and impartial trial. The prosecuting attorney objected to the hearing of the motion for change of venue because no written notice of such motion had been served upon him, as provided by the rules of the circuit court, as follows: "That before a change of venue shall be granted in any cause pending on the criminal docket of this court, written notice of the application therefor shall be given to the attorney for the state at least three days prior to the day upon which the application is made. Upon hearing of any application for a change of venue, the defendant will be required to produce in court the persons making the supporting affidavits. The court, after examining three of the witnesses who signed the supporting affidavit for change of venue, called upon appellant to produce the fourth, but appellant was unable to do so. The court then overruled the motion for change of venue, reciting in the order "that the court, after hearing the cross-examination of the supporting affiants, is of the opinion that such affiants were not informed as to the condition of the minds of the inhabit. ants upon the matter, except about the city of Batesville, and for this reason, and that no notice of this application had been served

upon the prosecuting attorney, as provided by the rule of this court, the court is of the opinion that the said motion be, and the same is hereby, overruled." Other facts will be stated in the opinion.

Horton & South, for appellant. Robt. L. Roger, Atty. Gen., for the State.

WOOD, J. (after stating the facts). 1. The record brought here by certiorari on motion of the Attorney General shows that an appeal was taken by appellant from a judgment of conviction before the magistrate. The circuit court therefore had no jurisdiction.

2. The circuit court did not arbitrarily overrule appellant's motion for change of venue, but examined three of the witnesses signing the supporting affidavit, and found that they were not informed as to the condition of the minds of the inhabitants about the matter, except about the city of Batesville. This alone was sufficient to justify the court in refusing the motion for change of venue. The court gave as an additional reason for refusing the change noncompliance by the appellant with its rules. This was no legal reason for refusing a motion for change of venue, where the statute had been complied with; and, had this been the only reason for the court's ruling, it would have been error. But, having examined the witnesses and ascertained the facts, as found in the court's order overruling the motion, which finding is sustained by the evidence, the court's ruling in refusing the motion cannot be considered arbitrary, and therefore erroneous.

3. The court permitted the state's witness Hall to testify that the appellant had, on the day previous to the trial, assaulted him and used abusive language towards him. The appellant's testimony shows that the assault on and abusive language to Hall was because of what Hall had sworn before concerning appellant's connection with the crime charged. Hall was to testify, and did testify the next day. The testimony tended to show the animus of appellant toward the prosecuting witness, Hall, on account of the testimony he had previously given, and which he might be expected to give again on the morrow. It tended to show a disposition on the part of appellant to browbeat or intimidate the witness Hall on account of his testimony, and in that sense might be regarded as an effort on the part of appellant to suppress testimony against him.

4. Appellant urges that it was error for the court to permit witnesses to testify in the absence of appellant to conversations with Hall, in which he made statements damaging to appellant; but appellant failed to reserve exceptions to the ruling of the court in admitting this testimony, and the objection made here for the first time cannot avail.

5. The testimony of J. W. Six that he examined the charge of incest against W. J. Hall and committed him to jail, without producing the commitment or record, or accounting for same, if erroneous, was not prejudicial; for the witness W. J. Hall had already testified, without objection, that he had been committed to jail on a charge of incest, and appellant himself testified that witness Hall had been in jail on that charge. 6. The fact that W. J. Hall, whom appellant is alleged to have intended to assist in escaping from jail, had been tried and acquitted, was irrelevant to the charge against appellant; but we do not consider it prejudicial. However, if it was relevant and prejudicial, appellant saved only a general exception to it, failing to point out the specified reason for its rejection. This was not sufficient. Vaughan v. State, 58 Ark. 353, 24 S. W. 885.

7. The offense is complete under the statute when any person shall have conveyed into the jail or place of confinement anything proper or useful to aid any prisoner in his escape with the intent to facilitate the escape of any prisoner, whether such escape be effected or attempted, or not. The acquiescence or co-operation of the prisoner, which appellant contends is necessary, does not seem to be contemplated by the act. The express language is to the contrary.

8. The bill of exceptions contains the following: "Be it remembered that upon the trial of the above-entitled cause J. C. Yancy, attorney for the state, made the following improper and prejudicial remarks: 'Bob Maxey knew that dead men tell no lies,' and saying that 'Maxey, the defendant, intended to kill Hall on his escape,' and saying "They,' meaning the defendant's attorneys, 'ask you to believe that Morgan would he guilty of such a scheme as this, and you must believe that Morgan would stoop to instigate a scheme of this kind of that Bob Maxey is guilty'-to which remarks the defendant at the time excepted, and asked the court to instruct the same from the jury, which was by the court overruled, which ruling of the court he at the time excepted and asked that his exceptions be noted of record, which was accordingly done." The above record shows that the circuit court regarded the remarks of the attorney as "improper and prejudicial," but, notwithstanding this, he overruled the motion for a new trial, setting up such remarks as the fifteenth ground in such motion. This record presents the somewhat anomalous condition of the circuit judge expressing an opinion as to the effect of the remarks objected to, but failing to give the appellant the benefit of his opinion by granting his motion for a new trial. As the learned trial judge, notwithstanding his declaration that the remarks of the attorney set out above were "improper and prejudicial," refused the appellant's motion for a new trial, the ques

tion is presented to us as to whether the remarks were really "improper and prejudicial," the declaration of the circuit judge to the contrary notwithstanding. The witness Hall had testified that the appellant had hit him on the head and knocked him down, and that from the effect of such blow he was in bad condition and suffering from nervousness at the time of giving his testimony. There was nothing beyond this to indicate the character of the assault that was made by the appellant on the witness Hall, and this was hardly sufficient to justify the attorney in reaching the conclusion that it was the intention of the appellant, by this assault, to kill the witness Hall, in order to get rid of his testimony, as indicated by the language which the attorney used. Still the facts upon which he predicated his opinion were before the jury, and as sensible men we must assume that they gave the opinion of the attorney as to these facts no more or greater consideration than the facts themselves justified. In this view, we do not see how the remarks concerning the assault could have been prejudicial. Likewise as to what was said as to Sheriff Morgan. The facts were all before the jury, upon which the attorney was expressing his opinion. It was no more than an opinion which he was expressing. The learned counsel for appellant say "that the proof on the part of the state showed conclusively that the sheriff was a party to the scheme to induce the defendant to violate the law by committing the act for which he was tried in this case." This being the opinion of counsel for appellant as to the conduct of Sheriff Morgan in connection with the transaction, it was certainly legitimate argument for counsel for the state to express the opinion that what the sheriff did in connection with the matter must be attributed to innocent and proper motives, and, if so, the appellant was guilty. We do not find the remarks complained of prejudicial to appellant.

Having considered all the assignments of error in the order presented in appellant's brief, and finding no reversible error, the judgment is affirmed.

3. APPEAL-AFFIRMANCE ON MERITS - NEW TRIAL.

In an action to recover land, plaintiff offered in evidence a certified transcript of a record from the General Land Office to prove title. This was admitted over objection on the ground that it was secondary evidence and no foundation had been laid, but the court decided for defendant on other grounds. Held, that on appeal a determination that the transcript was not admissible as original evidence did not require an affirmance on the merits, despite intervening errors, in favor of defendant, but that plaintiff was entitled to a new trial, in order to give him an opportunity to render his evidence competent by laying proper foundation.

Supplemental opinion. ion, see 88 S. W. 566.

For former opin

HILL, C. J. This case was decided at this term, and is yet within control of the court, and the court has concluded that it erred in its ruling on a question of evidence, and of its own motion has decided to recall the mandate and insert this additional opinion therein for the guidance of the chancery court, and to modify the decree heretofore entered, so as to remand for further proceedings, instead of remanding with peremptory directions to enter judgment for appellant. The appellant, to prove his chain of title, offered a duly certified transcript from the Land Office showing the record of the issuance of a patent to Cross. The appellee objected to its introduction on the ground that it was not the best evidence, the loss of the original not having been proved. The court overruled this objection, and the appellee duly excepted to the ruling. The court decided the case in favor of the appellee, Ashabraner, upon a totally different proposition. Upon the hearing in this court appellee insisted that its exception was well taken, and appellant's title not properly proved, and on the whole record the case ought to be affirmed, even if the court did not sustain his other contentions. The court held that the transcript was original evidence and properly admitted. Two other cases have come here where the same point has been fully discussed, and the court has concluded that it erred in this case in holding the certified copy of the transcript to be original evidence, and sufficient to prove the transfer without laying proper foundation for its introduction as secondary evidence. The question is fully discussed in Carpenter v. Dressler, this day decided,1 and the opinion therein will be made a part hereof in the mandate.

It does not follow, from this change of the opinion of the court on this question, that the case should be affirmed. The chancellor held the evidence competent, and based his adverse decision on other grounds, and thereby did not give the appellant an opportunity to render this evidence competent by laying the proper foundation then, or suffering a nonsuit and bringing his action anew, wherein he could have his evidence in proper shape to be admissible. The practice contemplates that exceptions to depositions and

Rehearing pending.

documentary evidence be determined before final submission. See sections 2743, 3190, Kirby's Dig. This enables a party to nonsuit when he has mistaken the competency of his evidence and otherwise protect his rights. It would be manifestly unjust, and contrary to the better practice, to permit a defeat in an appellate court on an exception to evidence ruled in favor of the appellant, thereby throwing him off his guard and preventing him from properly protecting his rights, when the decision is against him on totally different grounds. Such a case is not one for the application of the rule to affirm when on the whole record the judgment is right, although wrong reasons are given for it, but rather is a case calling for a remand for further proceedings wherein it is shown that the case is not fully developed on account of an error of the court or a mistake of the party as to his remedy, when the interests of justice require the whole case to be more fully developed.

The judgment is modified to the extent that the cause is reversed and remanded for further proceedings not inconsistent herewith.

MCKINNEY v. STATE.

(Court of Criminal Appeals of Texas. June 14, 1905.)

1. CRIMINAL LAW-INSTRUCTIONS AFTER RETIREMENT OF JURY-TESTIMONY OF WITNESS.

Under White's Ann. Code Cr. Proc. art. 734, providing that if the jury, after retiring, ask further instructions, the court may give them in writing, it is proper, where they, after retirement, ask that the testimony of a witness be read to them, for the court to inform them in writing that they cannot have the testimony read to them, but that, if there is a disagreement among them as to his testimony, they can request the court to have him brought back on the stand, and have him detail that part of his testimony about which they disagree; such proceedings being authorized by article 735. 2. SAME HARMLESS ERROR-TESTIMONY AS TO DEFENDANT'S MENTAL CAPACITY.

Defendant is not prejudiced by testimony of witnesses that in their opinion he had sufficient mental capacity to know it was wrong to attempt to kill prosecutor, this being admitted when the court was of the opinion that the evidence made an issue whether defendant at the time of offense was under the age of 13 years, and having been withdrawn when the court was satisfied that no such issue was raised.

3. SAME CONFESSIONS-INSTRUCTIONS.

A charge that, where the state puts a confession in evidence, the whole of it is to be taken together, and the state bound by it, unless it is shown to be untrue in whole or part, though unnecessary, there being other testimony than the confession, is in proper form, even if the confession was relied on alone for conviction.

4. SAME-ACCOMPLICE TESTIMONY-CORROBORATION-INSTRUCTIONS.

Though it is better practice to follow White's Ann. Code Cr. Proc. art. 781, providing that a conviction cannot be had on accomplice testimony, "unless corroborated by other

evidence tending to connect defendant with the offense committed," a charge is not erroneous because merely requiring corroboration by evidence tending in "some degree" to connect defendant with the offense.

5. SAME-CIRCUMSTANTIAL EVIDENCE.

A case is not one of circumstantial evidence, where there is a confession of defendant and testimony of an accomplice that defendant did the act.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Will McKinney was convicted of assault to murder, and appeals. Affirmed.

Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of assault to murder, and, being under 14 years of age, his punishment was fixed at confinement in the state reformatory and house of correction for a term of five years. The testimony shows substantially that A. Thomas, the assaulted party, a vender of fruits and chile, was shot by appellant, who was accompanied by Marvin Rhodes at the time of the shooting; Rhodes being a small boy. Prosecutor at the time of the shooting was in bed at his place of business. The shooting occurred between 5 and 6 o'clock in the morning. Prosecutor testified that upon hearing a noise at the door he partly opened it, and a shot was fired, wounding him. The state's testimony shows that the wound was inflicted with a 22-caliber target rifle. The state introduced appellant's confession. However, in this confession appellant states that his companion, Marvin Rhodes, did the shooting; that he and Marvin had agreed to shoot the old man (prosecutor) because he had sold them some chile the day before of an inferior grade. The state introduced Marvin Rhodes, and he testified that appellant did the shooting. The first bill of exceptions relates to the refusal of the court to instruct the jury peremptorily to find a verdict of not guilty. We do not think there was any error in this, since both the confession of appellant and the testimony of the accomplice, with the other evidence in the case, support the verdict of the jury.

W.

Bill of exceptions No. 2 shows that, after the jury had retired to consider their verdict, they propounded to the court the following question: "The jury desires to hear the testimony of W. S. Russell read to them. W. Parks, Foreman." The court informed the jury in writing that under the law they could not have the testimony read to them; but, if there was any disagreement among them as to the testimony of any of the witnesses, they could request the court to have the witness brought back on the stand and have him detail that part of the testimony about which the jury disagreed. This instruction was clearly correct, under article 734, §§ 875-877, White's Ann. Code Cr. Proc.; Conn v. State, 11 Tex. App. 390.

Bills 3 and 5 relate to the action of the