keep out of the way of the car, which was coming south toward them, turned his horse around; but just as the hind wheel of the wagon was leaving the street car track it was struck by the car. The wagon was knocked over, the horse took fright and ran off, and Hoskins fell out and was killed. This is about the sum of the evidence for the plaintiff, except that it also tends to show that no signal was given of the approach of the car and that the irons of the wagon were so bent as to show that the car was running with great force. On the other hand, the testimony on behalf of the street car company, including some of the passengers on the car, is to the effect that the car was quite close to the wagon, which was on the side of the street car track, before Veith made any effort to turn his horse around, and that when he turned around upon the track it was impossible to prevent the collision, although the motorman sounded his gong, applied his brakes, and put on sand immediately. It is evident from the proof that both Veith and Hoskins were aware of the approach of the car, and that the motorman had no reason to apprehend any danger to the wagon until Veith turned his horse with the view of going back to Broadway. On the first trial of the case the jury failed to agree. On the second trial they found a verdict for the plaintiff in the sum of $5,000, and the railway company appeals.

The court instructed the jury as follows: "(1) It is the duty of the defendant's motorman, when running the defendant's cars through the streets of the city of Louisville, to keep a lookout ahead, to keep the cars under reasonable control, and to exercise ordinary care to prevent injury to other people who may be using the street, and, if there is a person or vehicle likely to be imperiled from the car, to give timely notice of the approach of the car by the usual and ordinary signal; and if you shall believe from the evidence that at the time mentioned in the petition the motorman, in charge of the car which collided with the wagon on which Mr. Hoskins was, failed to exercise any of those duties, and by reason of such failure the car collided with the wagon, and Mr. Hoskins was thrown from it, and his death resulted therefrom, then the law is for the plaintiff, and you should so find, unless you shall believe from the evidence that Mr. Hoskins or the driver in charge of the wagon was negligent, and thereby helped to cause or bring about the collision and consequent injury, and but for which negligence upon the part of Mr. Hoskins or the driver in charge of the wagon, if any there was, the injury would not have occurred.

"(2) But if you shall believe from the evidence that the motorman in charge of the car observed those duties of which I have spoken to you, then the law is for the defendant, and you should so find, notwithstanding the injury which occurred to Mr. Hoskins;

or if you shall believe from the evidence that the driver of the wagon or Mr. Hoskins was negligent, and thereby helped to cause or bring about the injury which resulted to Mr. Hoskins, and that he would not have been injured but for such contributory negligence, if any there was, then the law is for the defendant, and you should so fini, unless you shall believe from the evidence that, when the wagon became imperiled from the car, the motorman could by the exercise of ordinary care have stopped the car, if necessary, and have prevented the collision. If such was the fact, the law is for the plaintiff.

"(3) It was the duty of Mr. Hoskins and the driver of the wagon, when he turned to cross the street, to exercise ordinary care for the protection of themselves, and if either of them failed to exercise that degree of care, and thereby helped to cause or bring about the injury complained of in this action to Mr. Hoskins, and the injury would not have occurred but for the failure to exercise ordinary care, either by Mr. Hoskins or by the driver, then the law is for the defendant, and you should so find, unless you shall believe from the evidence that, when the wagon became imperiled from the car, the motorman could by the exercise of ordinary care have stopped the car, if necessary, and have prevented the collision, as mentioned in instruction No. 2.

“(4) If you find for the plaintiff, you should find in such sum as will reasonably and fairly compensate the estate of Mr. Hoskins for the destruction of his power to earn money, not exceeding the sum of $50, 000, the amount claimed in the petition; and in that connection you may consider the amount that Mr. Hoskins was earning, if any, as shown by the evidence, immediately prior to his death, and all the other circumstances shown by the evidence touching his capacity to earn money. If you find for the defendant, you will simply say so, and no more."

The defendant asked the court to give the jury the following instruction, which was refused:

"(5a) The defendant's motorman was under no obligation to stop his car or to check its speed, if it was not going at an unreasonable speed, as long as the wagon in which the plaintiff's decedent was riding was in a place of safety from the approaching car, and the said motorman had the right to presume that the said wagon would remain in a place of safety until by its movement some indication was given that it would leave its place of safety and get into a place of danger from the approaching car. And if the jury believe from the evidence that the said car was not going at an unreasonable rate of speed at the said time and place, and that the defendant's motorman used ordinary care to

check the car and prevent the collision as soon as he discovered, or could by the exercise of ordinary care have discovered that the said wagon was in danger from the approaching car, then the law is for the defendant, and the jury should so find."

The rule is in cases of this sort that if there is contributory negligence on the part of the plaintiff then there can be no recovery, unless his peril was discovered, or could by ordinary care have been discovered, and after this the injury to him might have been avoided by the exercise of ordinary care. The second and third instructions do not properly conform to the rule, as they eliminate from the consideration of the jury the question whether the motorman knew of the peril of the wagon, or might by the exercise of ordinary care have known it. The latter part of the fourth instruction, following the words "amount claimed in the petition," should have been omitted, as these only served to give prominence to certain evidence in the case. Instruction 5a, asked by the defendant, presented its side of the case, which was not aptly presented by either of the instructions given by the court. This instruction should have been given. The uncontradicted proof for the defendant showed that the car stopped within 10 feet after it struck the wagon, that its regular stopping place was only 15 feet further south, and that the signal for it to stop at this point had been given when the car left York street. We think it evident from all the proof that the car was slowing down to stop when it struck the wagon.

The plaintiff proved by Veith and two other witnesses that they took a different horse to the spot with a similar wagon not long before the trial, and that, driving at the same rate, it took only 9 seconds to make the turn and clear the street car tracks. They also proved that it took the street car 14 seconds to run from York street to that point. The evidence as to how long it took the street car to run from York street to that point was properly admitted; but the experiments which they made with another horse on the same ground should not have been admitted, for horses differ very much in speed. The horse driven when the accident occurred was 12 years old. The plaintiff may be allowed to show at what gait Veith was driving at the time of the accident, how far he had to go in making the turn and clearing the street car tracks, and how long it will take a similar wagon at this gait to go this distance; but experiments made on the same ground with a different horse should not be admitted, for it is very evident that, if Veith had had a quarter of a second more, he would have cleared the street car track, and this difference would be made by a quick horse when he was not perceptibly traveling faster than the other horse.

Judgment reversed, and cause remanded for a new trial.

88 S.W.-69

NEWMAN v. COMMONWEALTH. (Court of Appeals of Kentucky. Sept. 28, 1905.)

1. HOMICIDE-EVIDENCE-SUFFICIENCY. In a prosecution for murder, evidence held sufficient to support a conviction.

2. SUFFICIENCY-INDICTMENT.

An indictment for murder charging that defendant and other persons, whose names were unknown, shot and killed deceased, and that the shot was fired either by defendant or by "one of the above-mentioned persons, whose name is unknown," while the other was present, aiding and assisting, and that who had actually fired the shot was unknown by the grand jury, while inaccurate, because of the use of the word "mentioned" before the word "persons,' when no one had been mentioned but defendant, was nevertheless sufficient.

3. CRIMINAL LAW-EVIDENCE-STATEMENTS MADE TO ACCUSED.

In a prosecution for murder, a statement made by a witness to defendant, to which the latter made no answer, was not admissible.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 898, 899, 968, 970.] 4. WITNESSES-CROSS-EXAMINATION OF DE

FENDANT.

In a prosecution for murder, cross-examination of defendant tending to insinuate that he was testifying untruthfully was improper. 5. SAME.

In a prosecution for murder, it was improper for the prosecuting attorney, on crossexamination of defendant, to ask him if it was not a fact that people generally talked about his being jealous of deceased.

6. CRIMINAL LAW-FAILURE OF DEFENDANT TO TESTIFY ON APPLICATION FOR BAIL.

Under the statute providing that the failure of defendant in a criminal prosecution to testify in his own behalf shall not be commented upon, the prosecuting attorney has no right to refer to defendant's failure to testify as a witness upon an application for bail.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1672.] 7. WITNESSES IMPEACHING - CROSS-EXAM

INATION.

In a criminal prosecution, in which defendant called a witness to impeach one of the state's witnesses, it was improper to ask defendant's witness as to which had the worst reputation, he or the witness he was called to impeach.

8. CRIMINAL LAW-CHARACTER OF DEFENDANT FOR PEACE AND QUIET.

Where a defendant, in a prosecution for murder, does not place his general character for peace and quiet in issue, the state has no right to attack his character in that respect. [Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 839.] 9. WITNESSES-CHARACTER

PEACHMENT.

FOR TRUTH-IM

Appeal from Circuit Court, Laurel County. "Not to be officially reported."

between them then. She claimed that she had simply wanted to go to the fair, and,

James Sparks, for appellant. N. B. Hays and C. H. Morris, for the Commonwealth.

HOBSON, C. J. In May, 1904, a street fair was in progress in the town of Corbin, which is situated in Whitley county, near the Laurel line. Lynn Camp creek is the dividing line between the two counties. There is a railroad bridge across the creek; and near the Laurel county end of this bridge on Saturday evening, May 27th, at about 9 o'clock, the body of Paschal Bryant was found lying between the rails of the railroad track, with his head near one rail, his hat on his breast, and a large bullet hole entering his head behind the lower part of his left ear and making its exit at the right eye. The body was warm when found, but life was extinct. The corpse was found by a man who lived not far off and was walking along the railroad on his way to Corbin. This man heard the shot some time before he left home. While he was standing near the body, which was about a quarter of a mile from the station at Corbin, there came through the wire fence a man and a woman, from the east side of the railroad track, who came up on the railroad and looked at the corpse. The woman broke down and cried a little, and said she could not stand to look at him. Then they passed on. The man's name was Henry Carr. The woman's name was Laura Newcomb. They have since been married. That night they and the defendant, George Newman, were arrested charged with the murder of Bryant. Carr and the woman were discharged subsequently, but Newman was held over, and, having been indicted, was convicted, and his punishment fixed at confinement in the penitentiary for life.

On the trial Carr and wife were introduced as witnesses for the commonwealth, and it was insisted for Newman that Carr had killed Bryant and had married the woman to keep her from being a witness against him. There was a merry-go-round at the fair, and there was a considerable crowd in town, especially about the merry-go-round. George Newman was 22 years old, and about two months before had married Maria Hood. They lived six or seven miles from Corbin. On the preceding Tuesday, while he was out at work, she had left home, and when he came home in the evening she was not there, and he could not learn where she was. next morning, Wednesday, he borrowed a Winchester rifle and, as he says, went turkey hunting with it, but finally, conceiving that his wife might be at Corbin, went on with the rifle to Corbin, arriving there about dark. He left the rifle with a friend, and, finding wife on the merry-go-round, took her There seems to have been no trouble

The

for her to go, had left home without letting him know that she was going. On Thursday evening the defendant was seen in earnest conversation with Paschal Bryant, who lived about a mile from him. The whole conversation was not heard by any of the witnesses. but the defendant was heard to ask Bryant, "Before God and Heaven did you take Maria off?" Bryant said, "No." The defendant then asked him, "Where were you when it rained Tuesday evening?" Bryant answered, "At the Laurel River bridge." This bridge was between their homes and Corbin. The defendant then said, with an oath, "That is where she said she was." The rest of the conversation was not overheard. On Saturday morning Newman and his wife went to Corbin. He took with him a large .44-caliber Colt pistol, and when they got there they went to the house of a friend, and he hung the pistol up over the washstand. They then went on to the fair. That afternoon Paschal Bryant and the defendant were seen drinking together at a saloon. The defendant was a small man, and wore a white hat. Late in the afternoon, and about dusk, Paschal Bryant went to an eating stand between the merry-go-round and the railroad bridge, and there bought some apples. He came there in company with two other men, who waited for him on the street. Neither of these men were recognized there, but one was a small man with a white hat, and the other was a larger man. The three then left and went on down toward the railroad. Between the railroad depot and the creek there is a cut. Before they had passed through this cut they were seen by two men, with their wives, who were passing along in the opposite direction, and after they passed through the cut they passed a woman named Belle Polly, who came along with two men going up toward the station. She testifies to recognizing Paschal Bryant, and also George Newman, the small man with the white hat; and one of the other witnesses, who did not know Newman, but saw him the next morning, said that from his hat, size, and face he thought he was the same man. The witness Polly had only gone a short distance, when she heard the report of a large gun down about the railroad bridge, in the direction which the three men had gone. This report was also heard by the other witnesses who passed them. The railroad maintains a pumping station at the bridge. The man who runs the pump was at the pumping house, and testifies to seeing the three men come over the bridge, the smaller man with the white hat being behind, and when they got to the far end of the bridge they got in a bunch and the pistol went off. He saw the flash of the pistol, but saw no more of any of the parties, and did not know that

Two

any one was killed until afterwards. witnesses testify to seeing tracks of two men leading down from the railroad embankment towards the creek. There was a dam just below on which they could have crossed and gone back to Corbin. The defendant, when arrested soon afterwards, had no weapons upon him; but the lady at whose house he had left the pistol, when she returned home, found the pistol gone. He says that he did not return to the house, and does not know how the pistol got away. It was a private house, and only some ladies seem to have known that the pistol had been left there by him. The pistol has not been seen since, and the theory of the commonwealth is that it was thrown into the creek after the shooting.

The proof leaves no doubt that Bryant was killed by a shot from a weapon carrying a ball similar to the defendant's pistol, and that he was killed by one of the two men who were seen walking out the railroad with him and across the bridge just before the shooting took place. The proof is entirely lacking as to who the third man of this party was. There was no proof of intimacy between Bryant and Mrs. Newman. It was shown where she staid while away from home. There was no proof of any attentions by Bryant to Laura Newcomb, and the proof was that she and Carr had gone down there into the woods before dark with three pints of whisky, and after the shooting they came up out of the woods together. Carr was evidently quite drunk, and there is no evidence that he had any weapon, or that he left the woman after he went down there with her. While he is about the size of the defendant, it is not shown that he wore a white hat, nor is he in any way identified as one of the three men going down the railroad. The woman Belle Polly and the woman Laura Newcomb were both of loose morals. While the defendant's evidence is in many respects impressive, it is unsatisfactory as to the interview between him and Paschal Bryant, in which he was asking Bryant about his wife. He claims to have been with his wife at the merry-go-round the whole evening, but the other witnesses do not substantiate this statement. There was a large crowd there. One or two witnesses speak of seeing him there, but there was no proof showing that he was missed from there, or that he was there continuously.

It is insisted for the commonwealth that he was jealous of his wife, and that his jealousy was pointed at Paschal Bryant. The only real issue in the case was whether the defendant was the small man wearing the white hat, who was seen by the witnesses going down the railroad with Paschal Bryant in company with a third man just before he was shot. There is some uncertainty about the case, and it is possible that the witnesses are mistaken who identify the defendant

with the small man wearing the white hat. It was usual for persons to shoot over there beyond the bridge. At least it was not uncommon, and it is possible that Paschal Bryant and two others were going home, and he was shot by one of them in firing off a pistol at the far end of the bridge. He was found with his hands in his pockets, and when he was shot was evidently not anticipating trouble. The shot was fired from behind him. The small man was behind him when they passed the witnesses. The lady at whose house the defendant hung up his pistol locked up the house, and the house was found locked when the family returned. The defendant took supper there, and it does not appear from the evidence that any other man was there, at supper or after supper. There is testimony tending to show that the defendant was not jealous of Paschal Bryant, but of a man named Smith, and that he regarded Paschal Bryant as his friend. All these matters were for the consideration of the jury, and, while the evidence is not conclusive, we cannot say that there was no evidence warranting the verdict of the jury.

It is insisted for the defendant that the indictment against him is insufficient. The indictment charges that the defendant and other persons whose names are unknown to the grand jury, then and there acting with him, shot and killed Bryant, and that either the shot was fired by Newman or "one of the above-mentioned persons whose name is unknown to the grand jury, while the other was present aiding and assisting, but which so actually fired the shot is to the grand jury unknown." The indictment is sufficient. The word "mentioned" should have been omitted from the indictment in the expression "one of the above-mentioned persons," as no other person but Newman is mentioned in the indictment. While this is so, the sense is perfectly clear that the indictment charges that either Newman or one of the unknown persons fired the shot; the other being present and acting with him.

The court allowed J. C. Floyd to say that he made the following statement to the defendant: "The next morning after his wife went to Corbin on Tuesday evening I saw Mr. Newman at Keavy, and he seemed to be busted up some way, and was inquiring about his wife. He said she had gone. I saw from his looks he was a little out of shape, and I said to him, 'George, don't hurt-' (Defendant's objection overruled. Defendant excepts.) I said: 'George, don't hurt anybody over this woman, because you are not an innocent purchaser in this woman. You know she run off with a married man before you married her.' He didn't say anything at all." The latter part of this testimony should not have been admitted, as it was simply a statement of the witness to which the defendant made no response.

a witness, the commonwealth attorney, on cross-examination, questioned him as follows: "Q. You didn't go up through that cut at the time Mr. Ellison speaks of seeing you? A. No, sir. Q. If you had been over there and killed a fellow, you would not admit it, would you? A. Yes, sir. Q. You would not hesitate to do it? A. No, sir. Q. If you had gone over there with somebody and shot him in the head and run off, would you tell it? A. Yes, sir. Q. If you had gone over there and shot a fellow, and you and some other fellow had run off down the bank and down by the milldam and crossed over, would you tell it? A. Yes, sir. Q. And if you had shot him in the back of the head, when he had his hands in his pockets, you would not care to tell it? A. No, sir. Q. You would do that, especially because you and him were good friends, wouldn't you? A. Yes, sir; me and him was the best of friends. Q. If you had never had any suspicion of any intimate relations existing between him and your wife, do you know why the people were talking about you being jealous of him? (Defendant's objection sustained. Plaintiff excepts.) Q. Don't you know it to be a fact that the people generally talked about you being jealous of Mr. Bryant? A. No; I never heard of it. Q. Didn't you go over there on that bridge and shoot that fellow in the head and throw that pistol in that pond? A. No, sir. Q. If you did, you would tell it, I reckon? A. Yes, sir. Q. If you had gone over there and shot a fellow in the back of the head, and him with his hands in his pockets, and you had run down there on that dam and throwed your pistol in that pond, you would tell the jury about it? A. If I had been there and shot him, I would tell the jury about it. Q. And if you had thrown your pistol in the pond, you would have told about that? A. Yes, sir. Q. At the May term of this court, 1904, you made application for bail, did you not? A. Yes, sir. Q. Did you not testify as a witness upon that application? A. No, sir. Q. Why didn't you testify, if you had nothing to do with the killing of that man? (Defendant's objection sustained. Plaintiff excepts.)" The defendant introduced Wesley Wells to impeach the witness Belle Polly, and on cross-examination the commonwealth attorney asked him: "Q. Do you know which has the worst reputation, you or she? A. I don't know, hardly." The defendant did not put his character in issue. The commonwealth attorney asked one of his witnesses, introduced to impeach Belle Polly, what the defendant's general moral character was. The witness said he was a pretty reckless character. The defendant then introduced a witness to sustain his character, and the commonwealth attorney cross-examined him as follows: "Q. Did you hear about his breaking up a church in Virginia? A. No, sir. Q. Did you know that he carried a pistol regular? A. No, sir; I have saw him with a pistol in Virginia, but

every man did. It was nothing unusual. Q. Is it a penitentiary offense in Virginia to carry a pistol? A. No, sir; I don't think so." He also asked another character witness as follows: "Q. How long had this fellow been married until Paschal Bryant was killed? A. About two months, maybe. Q. Before that time what was his general moral character, good or bad? A. Not very good. He went with wild boys; sorter reckless. Q. Did you know that he carried a 45 pistol most all the time? A. Never saw it. Q. What was his reputation about it? A. The reputation was that he carried it. Q. His reputation was that of a fellow that drank a right smart, wasn't it? A. He was of a class of boys that was not good."

While there were no exceptions taken to the questions above indicated, except as quoted, it was misconduct on the part of the commonwealth attorney to ask them. When the defendant is sworn in his own behalf, in a criminal case, he is to be treated on cross-examination as any other witness, and it is very improper for the commonwealth attorney to insinuate in cross-examining him that he is swearing an untruth or would swear an untruth. The mode of crossexamination followed by the commonwealth attorney was calculated simply to discredit the witness before the jury. It was improper for the attorney to indicate what the people generally thought or said about the defendant's being jealous of Bryant. The defendant is entitled to a fair trial on the evidence heard before the court, without any reference to the sentiment of the community. It was improper for the attorney to refer to the fact that the defendant did not testify as a witness upon the application for bail. The statute which allows the defendant to testify in his own behalf in a criminal case expressly provides that his failure to testify shall not be adverted to, and this clause of the statute applies no less to previous trials than to the one in progress. It was improper for the commonwealth attorney to discredit Wesley Wells by a question implying that his character was bad. The mode of discrediting a witness is pointed out in the statute, and insulting questions should never be asked a witness. The defendant did not put his general character for peace and quiet in issue, and, he not having done that, it was improper for the commonwealth attorney to attack his general character for peace and quietness. The commonwealth might have attacked his character for truthfulness, or his general moral character, for the purpose of impeaching his testimony as a witness; but, when this is done, the court should always admonish the jury that the evidence is only to be considered by them for the purpose of impeaching his testimony as a witness. It was improper for the commonwealth attorney in any view of the case to ask whether he was in the habit of carrying