lading to me nor explain its contents to me, and failed to put the war revenue on it, but afterwards called me back and put the reve nue stamp on it."

It thus appears, if the contention of the appellant is to be sustained, that this paper, which purports to be a receipt, and also containing a special contract, though not signed by the appellant's agent, and delivered to the agent of the shipper, who could not read or write, to whom the contents were not known, is a bill of lading, and limits the commonlaw liability of the appellant. Hutchinson on Carriers (2d Ed.) § 120, in defining a bill of lading, says: "These contracts assume somewhat different forms, and are known by different names, according as they may be with carriers by water or carriers by land. Those with the former are called 'bills of lading,' while those with land carriers are commonly called 'receipts.' They are, however, the same in effect, and are intended merely to evidence the true intent of the transaction between the parties. * They must be signed by the carrier or his authorized agent to bind him, and must be accepted by the shipper. And any contract with the carrier having these characteristics is entitled to the effect of a bill of lading, no matter how informally it may be drawn." In The Tongoy (D. C.) 55 Fed. 329, a bill of lading is defined as follows: "Now, a bill of lading is a written acknowledgment, signed by the master, that he has received the goods therein described from the shippers, to be transported on the terms therein expressed. It is a receipt for the quantity of goods shipped, and a promise to transport and deliver them as therein stipulated." 4 Am. & Eng. Enc. of Law says: "A bill of lading must be signed by or on behalf of the party undertaking the carriage, but need not be, and generally is not, signed by the party shipping"-citing Porter on Bills of Lading. "A bill of lading is a memorandum or acknowledgment in writing, signed by the captain or master of a ship or other vessel, that he has received in good order, on board of his ship or vessel therein named, at the place therein mentioned, certain goods therein specified," etc. Rapalje & Mack's Digest of Railway Law, vol. 1, p. 601, citing Union R. & Transp. Co. v. Yeager, 34 Ind. 1. In the case of The Delaware, Justice Clifford, in delivering the opinion of the court, says: "Different definitions of the commercial instrument called 'the bill of lading' have been given by different courts and jurists, but the correct one appears to be that it is a written acknowledgment, signed by the master, that he has received the goods therein described from the shipper, to be transported on the terms therein expressed, to the described place of destination, and there to be delivered to the consignee or parties therein designated." 81 U. S. 600, 20 L. Ed. 779. "Bills of lading are usually on printed forms and signed by the carrier or his agent." Elliott on Railroads, § 1417, vol. 4, p. 2200.

In Montague et al. v. The Henry B. Hyde (D. C.) 82 Fed. 682, the court says: "A bill of lading is an instrument well known to the commercial law, and, according to mercantile usage, is signed only by the master of the ship, or other agent of the carrier, and delivered to the shipper. When thus signed and delivered, it constitutes not only a formal acknowledgment of the receipt of the goods therein described, but also the contract for the carriage of such goods, and defines the extent of the obligations assumed by the carrier. The Delaware, 14 Wall. 579, 20 L. Ed. 779. In my opinion, the rule which governs the point now under consideration is that a common carrier may, by special contract with the shipper, stipulate for a more limited liability than that which he assumes under the ordinary contract for the carriage of goods; and such special contract, in the absence of any statute to the contrary, may be contained in a bill of lading signed by the carrier alone; and the acceptance of such bill of lading by the shipper at the time of the delivery of his goods for shipment, in the absence of fraud on the part of the carrier, is sufficient to show the assent of the shipper to the terms set out in the bill of lading. It is the rule, rather than the exception, for common carriers to stipulate for a release from the stringent liability of an insurer, and which otherwise the law would impose upon them; and according to the customary course of business such stipulations are contained in the bill of lading issued by the carrier. This custom is so general that all persons receiving such bills of lading must be presumed to know of such custom, and they are also charged with the knowledge that it is one of the offices of such instruments to state the terms and conditions upon which the goods therein described are to be carried; and for this reason the acceptance of such a paper by the shipper, without dissent, at the time of the delivery of his goods for shipment, when no fraud or imposition has been practiced upon him, is to be regarded as conclusive evidence that he agrees to be bound by all lawful stipulations contained in such bill of lading; and this I understand to be the rule sustained by the Supreme Court of the United States in the case of Bank of Kentucky v. Adams Express Co., 93 U. S. 174, 23 L. Ed. 872, and is supported by the following wellconsidered cases: Kirkland v. Dinsmore, 62 N. Y. 171, 20 Am. Rep. 475; Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Dorr v. Navigation Co., 11 N. Y. 485, 62 Am. Dec. 125; Railroad Co. v. Pontius, 19 Ohio St. 221, 2 Am. Rep. 391; McMillan v. Railroad Co., 16 Mich. 79, 93 Am. Dec. 208. In the case last cited, Mr. Justice Cooley, speaking for the court, said: 'Bills of lading are signed by the carrier only; and, where a contract is to be signed only by one party, the evidence of assent to its terms by the other party consists usually in his receiving and acting upon it. This is the case with

deeds poll, and with various classes of familiar contracts; and the evidence of assent derived from the acceptance of the contract without objection is commonly conclusive. I do not perceive that bills of lading stand upon any different footing.'" Am. & Eng. Enc. of Law, vol. 4 (2d Ed.) p. 514: "A bill of lading, though signed, can have no effect until delivery."

It thus appears that, if a bill of lading is issued by a common carrier, it must be signed by it, in order to make the same a binding contract between itself and the shipper. The appellant has cited numerous authorities to establish the proposition that a common carrier can limit its liability without any written bill of lading. There is no question but that a verbal contract can be made, and the only serious objection to it is the difficulty of proving the same, in the event of controversy between the shipper and the car. r. When a common carrier seeks to limit its common-law liability, the law interposes no objection, but such a contract must be clearly established.

"In the absence of a statute to the contrary, no particular form or mode is required to constitute such a contract as will be binding upon the carrier's employers.

Whenever, however, it appears that what has been proposed on one side has been accepted by the other, a contract is proven which will be mutually binding, whether the proposition is made in the form of notice or in any other manner. But the proof of assent to the terms proposed by the carrier must be clear in such a case, for the law, having imposed an important duty upon him, upon grounds of public policy, will not permit him to divest himself of its responsibilities and throw the loss upon his employer, when the proof that the latter has so agreed is doubtful. But it is not required that such proof, if otherwise satisfactory, shall be written. A verbal contract is as obligatory as a written one when established. The only difference is in the manner and in the degree of certainty of the proof." Hutchinson on Carriers (2d Ed.) § 242.

"A special contract limiting the liability of the carrier as an insurer may be verbal as well as written, unless the statute requires it to be in writing. It may be more difficult to establish a specific parol contract, but, when once clearly established, it is as obligatory as a written one. Of course, where there is a complete written contract, it cannot, as a rule, be contradicted or varied by oral evidence, and all verbal agreements made prior to the execution of the bill of lading are usually merged therein; but, as we have seen, there are cases in which, after the carrier has once accepted and shipped the goods under an unconditional parol contract, it cannot afterwards limit its liability by a receipt or bill of lading; and so, on the other hand, after a receipt or bill of lading has been executed, a new contract may doubt

less be made in parol upon a new consideration, whereby the liability of the carrier may be properly limited or other changes made in the terms of the original contract." Elliott on Railroads, vol. 4, § 1503.

The appellant has also introduced authorities to establish the proposition that the acceptance of a bill of lading by a shipper, without any objection, when the same is issued by the carrier, binds the shipper to all limitations of liability embraced in said bill of lading. "According to the English cases and the clear preponderance of authority in the United States, if a bill of lading is accepted by the shipper without objection, he is ordinarily—i. e., in the absence of fraud, accident, or mistake-presumed to have knowledge of and to have assented to its terms, and he cannot afterwards be heard to say that he did not read it, but will be bound thereby. And the general rule is that prior negotiations cannot be resorted to for the purpose of varying the terms of the instrument." Am. & Eng. Enc. of Law, vol. 4 (2d Ed.) pp. 516, 517.

But the paper issued and denominated a bill of lading in the case at bar was never signed by the carrier, and by reason of that fact it was not a bill of lading, and, consequently, pretended limitations of liability stated therein were not binding on the appellee, and none of its provisions were binding on either the carrier or the shipper. Therefore, there is no evidence that any verbal or written contract was made between the parties, limiting the common-law liability of the carrier. The suit, as originally instituted, contained no statement about this pretended bill of lading. It was first disclosed on the granting of a motion by the United States commissioner, made by the appellant, to make the complaint more definite and certain, and was inserted in the complaint by way of interlineation. The appellant answered, insisting that its liability had been limited, but, when the case was tried in the district court, the discovery was made that the pretended bill of lading had never been signed, and the court allowed an amendment to the complaint to make same correspond to the proof in the case, which he was authorized to do by section 5080, Mansf. Dig. (Ind. T. Ann. St. 1899, § 3285), as follows: "The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." This simply placed the suit where it was when instituted before the commissioner, and, before the error was committed by the commissioner, requiring the plaintiff to produce the pre

tended bill of lading. The appellant admitting that it had received the goods and had failed to deliver the same, the court very properly directed the jury to return a verdict for the plaintiff.

We think the judgment of the court below was correct, and it is therefore affirmed.

RAYMOND, C. J., and GILL, J., concur.

WILLIAMS v. UNITED STATES.* (Court of Appeals of Indian Territory. Oct. 19, 1904.)

1. CRIMINAL LAW-ABSENCE OF WITNESSCONTINUANCE.

Where accused was granted a continuance on May 20, 1903, until the second Monday of the next term, and on December 26th a subpœna was issued for an absent witness who could not be found, and from the time of the continuance until the date of the subpoena no steps were taken to secure the witness' attendance, the overruling of a motion for a continuance for his absence on January 15, 1904, was not an abuse of discretion. 2. SAME

EVIDENCE.

NEW TRIAL-NEWLY DISCOVERED

An application for a new trial for newly discovered evidence, based on the affidavit of a negro stating that a colored man, unknown to affiant, came into his restaurant and made statements concerning the case, and that affiant made no inquiry concerning the name of such colored man, and did not know his whereabouts, was properly denied.

3. SAME-CHANGE OF VENUE.

Where, on an application for a change of venue, two witnesses made affidavits that the people in the vicinity were hostile to the defendant, and that they believed they were so prejudiced against defendant that he could not obtain a fair trial therein, but, on being brought into court for cross-examination, the witnesses testified that the only information they had on the subject was acquired from statements made by one of defendant's counsel, who had asked them to sign the affidavits simply as a matter of form, for the purpose of getting a continuance, they were properly permitted to withdraw the same. 4. SAME WITNESSES

ITS.

CREDIBILITY-HAB

In a prosecution for homicide, defendant was not entitled to prove that one of the government's witnesses was a "coke fiend," for the purpose of affecting her credibility. 5. SAME-WEAPONS-INSTRUCTIONS.

Where, in a prosecution for homicide, there was evidence that defendant shot deceased without any conversation having taken place between them, and that deceased at the time had a pistol, it was not error for the court to charge that deceased had a right to draw his gun, and, if defendant pressed him, he would have the right to use it.

6. SAME-FAILURE TO CHARGE-REVIEW.

An objection to an omission of the court to charge particular propositions in a criminal case will not be reviewed where no exceptions were saved or requests made to give such instructions.

7. SAME JURY-CUSTODY-BAILIFF.

Where the record in a criminal case disclosed that the jury were placed in charge of a sworn bailiff, it would be presumed after verdict that the bailiff was duly sworn.

*Rehearing denied June 19, 1905.

8. SAME-OBJECTIONS-TIME.

Objections not made at the trial, nor included in the grounds for a new trial, but first appearing in the assignments of error, will not be considered on appeal.

Appeal from the United States Court for the Central District of the Indian Territory; before Justice Wm. H. H. Clayton, Feb. 3, 1904.

Grant Williams was convicted of murder, and he appeals. Affirmed.

On the 5th day of December, 1901, defendant (appellant here) was indicted for the murder, on October 8, 1901, of one Ed. Dolan, which indictment is as follows: "The grand jurors of the United States of America, duly selected, summoned, impaneled, sworn, and charged to inquire within and for the body of the Central District of the Indian Territory aforesaid, at South McAlester, in the name and by the authority of the United States, upon their oaths do find, present, and charge that one Grant Williams, who was not then and there a member of any Indian tribe or nation, on the 8th day of October, A. D. 1901, within the Central District of the Indian Territory aforesaid, with force and arms, in and upon the body of one Edward Dolan, then and there being, feloniously, willfully, and of his malice aforethought did make an assault, and that the said Grant Williams, with a certain gun then and there charged with gunpowder and one leaden bullet, which said gun he, the said Grant Williams, in his hand then and there had and held, then and there feloniously, willfully, and of his malice aforethought did discharge and shoot off, at, to, against, and upon the body of the said Edward Dolan, and that the said Grant Williams, with the leaden bullets aforesaid, out of the gun aforesaid, then and there, by force of the gunpowder aforesaid, by the said Grant Williams discharged and shot off as aforesaid, then and there feloniously, willfully, and of his malice aforethought did strike, penetrate, and wound him, the said Edward Dolan, in and upon the neck of him, the said Edward Dolan, giving to him, the said Edward Dolan, then and there, with the leaden bullets aforesaid, so as aforesaid discharged and shot out of the gun aforesaid by the said Grant Williams in and upon the neck of him, the said Edward Dolan, one mortal wound, of which said mortal wound he, the said Edward Dolan, then and there instantly died. And so the jurors aforesaid, upon their oaths aforesaid, do say that upon the day and year aforesaid, and at the place aforesaid, the said Grant Williams him the said Edward Dolan, in the manner and by the means aforesaid, feloniously, willfully, and of his malice aforethought did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America." Defendant was arraigned on May 18, 1903, and pleaded not guilty, and on May 20,

1903, defendant filed motion for continuance, which was by the court allowed. On January 12, 1904, defendant filed his motion for change of venue, alleging that the inhabitants of the Central District are so prejudiced against him that he cannot obtain a fair and impartial trial of his cause therein, to which motion was attached an affidavit made by J. H. Walton and U. S. Goings, which in part was as follows: "That the people of Craig, Haileyville, and Hartshorne are very hostile to the defendant, and that they believe that the minds of the inhabitants of the whole of South McAlester Court Division of the Central District of the Indian Territory are so prejudiced against him that he cannot obtain a fair and impartial trial of his cause therein." Upon the hearing of said motion for a change of venue, the court permitted the district attorney to bring said J. H. Walton and U. S. Goings into court and cross-examine them, and upon said crossexamination it was developed that said Walton and Goings had heard of the crime for which defendant was charged, but had not heard the question of public sentiment or public feeling toward the defendant discussed, and had no knowledge of the same, except what they were told by Mr. Tarter, one of defendant's counsel, and that it was from the information received from him that the affidavits were made; defendant's counsel also stating to said witnesses that the making of the affidavit for a change of venue was simply a mere matter of form, and that its purpose was to get a continuance. Whereupon

the court overruled the said motion for change of venue, and on January 15, 1904, defendant filed motion for continuance, which was also overruled. And thereafter, on the 18th day of January, 1904, this cause came on for trial before a jury, and on January 19, 1904, the jury returned into court the following verdict: "We, the jury, find the defendant, Grant Williams, guilty of murder as charged in the within indictment." Defendant filed motion for new trial on February 3, 1904, and on same day filed his amended motion for new trial, which motions were overruled, and on same day the court rendered judgment as follows:

it is con

sidered by the court that the said Grant Williams be deemed, taken, and adjudged guilty of the crime of murder, and it is ordered by the court that the said marshal of this district cause the said Grant Williams to be taken hence, and him, the said Grant Williams, safely and securely keep from the date hereof until Friday, the 18th day of March, A. D. 1904, and on that day, between sunrise and sunset of said day, the said Marshal cause the said Grant Williams to be taken to some convenient place within this district, to be appointed by said marshal, and then and there, between sunrise and sunset on Friday, the 18th day of March in the year of our Lord Nineteen Hundred and Four, cause the said Grant Williams to be hanged by

the neck until he is dead. And it is further considered by the court that the United States of America do have and recover all their costs in and about this prosecution laid out and expended, and that they have execution therefor. And the clerk of this court is hereby required to furnish the marshal of this district with a duly certified copy of this judgment, sentence, and order, which shall be returned by said marshal with a full and true account of the execution of the same. Whereupon defendant, by his attorney, prays an appeal herein, and is allowed 20 days in which to prepare and file his bill of exceptions herein."

Wiley H. Jones (Robert Tarter, of counsel), for appellant. J. H. Wilkins, U. S. Atty.

TOWNSEND, J. (after stating the facts). Appellant has filed eighteen assignments of error, as follows:

"(1) There is no competent evidence in the record to support the verdict.

"(2) The court erred in overruling and disallowing appellant's motion for a continu

ance.

"(3) The court erred in overruling and disallowing appellant's motion for a new trial in that particular in which it is based upon newly discovered evidence.

"(4) The court erred in overruling and disallowing appellant's motion and application for a change of venue, and in allowing the district attorney, over appellant's objection. to bring the witnesses making the supporting affidavit for a change of venue into open court and cross-examine them, and in submitting to the witnesses making the affidavit the alternative of either withdrawing the affidavit, or of having the matter of making it investigated by the grand jury.

"(5) Persons of appellant's own race having been excluded by the grand jury preferring the indictment against him because of their race and color, he has been denied the equal protection of the laws guarantied by the Constitution, which is now assigned as

error.

"(6) The court erred in excluding from the jury the following question and answer propounded to witness Anna Cook: 'Is Eliza Dixon, witness for the government, a coke fiend [meaning a cocaine fiend]? Ans. Yes.' And excluding from the jury the same question and answer thereto propounded to Henderson Covington. Also in excluding from the jury expert medical testimony to the effect that the excessive use of cocaine makes of its user a liar and unreliable.

"(7) The court erred in charging the jury as follows: 'If Berger was in the car, and the defendant approached him in a threatening manner, so as to indicate to Berger that he was in danger from this man, then Berger had the right to draw his gun, and, if the defendant pressed upon him, he would have the right to use it.'

"(8) The court erred in charging the jury as follows: 'If Lee Berger was at a place where he had a right to be, attending to his duties, and the defendant armed himself and went there expecting a conflict, then the defendant was the assailant.'

"(9) The court erred in charging the jury as follows: 'No man can take another man's life, and justify it before a jury on the ground of self-defense, unless he is prepared to show that there was a necessity to take that man's life; and, in order to show that, it must appear that the danger to his own life or of receiving great bodily harm from the hands of the deceased was then and there. hanging over him and about to fall upon him, and that he could not prevent it except by slaying his adversary.'

"(10) The court erred in charging the jury as follows: 'In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life or to prevent his receiving great bodily harm, the killing of the other person was necessary.'

"(11) The court erred in charging the jury as follows: "The defendant's defense is, "I did not do the act." You understand that, as far as the killing of Berger is concerned, this defendant is not charged with that in this indictment. You are not trying him for killing Lee Berger. The proof of the killing of Berger, however, is before you, not because you are to convict him for killing that man, but only for the purpose of characterizing his acts and conduct, and as throwing light upon his action and motives in regard to the killing of the other man. That is the only reason that evidence is before you, it being so closely connected with the other case that it becomes a part of the res gestæ of the transaction. The case could not be intelligently tried without telling the whole story of the killing of both.'

"(12) The court erred in failing and refusing to charge the jury on the law of manslaughter, and announcing from the bench, 'I do not charge you as to the law of manslaughter.'

"(13) The court erred in refusing to submit to the jury the request following: 'If you should be of the opinion that the defendant is guilty of some offense, but should entertain a reasonable doubt as to whether he is guilty of murder or manslaughter, it will be your duty to acquit the defendant of murder, and convict him of manslaughter.'

"(14) The court erred in refusing to submit to the jury the request following: 'If you should entertain a reasonable doubt as to the defendant's guilt of the charge of murder, but entertain no such doubt as to his guilt of manslaughter, it will be your duty to acquit the defendant on the charge of murder, and convict him of manslaughter.'

"(15) This cause should be reversed and a new trial granted because the record fails to show that the jury, upon adjournment of

the court, and upon being respited to the morning following, were placed in charge of an officer sworn as the law directs. The record shows the following: 'And after hearing a portion of the evidence, it being adjourning time, said jury was put in charge of a sworn bailiff, ordered kept together, and lodged and fed at the expense of the government.'

"(16) This cause should be reversed because the record fails to show that the jury, upon being respited until the morning following were returned into court in charge of the same officer in whose custody they were placed upon being respited. The record entry is: 'Also comes the jury heretofore impaneled for the trial of this cause in charge of a sworn bailiff, and take their seats in the jury box,' etc.

"(17) The court erred in not admonishing the jury, as required by statute, upon them leaving the presence of the court, that it is their duty not to permit any one to speak to or communicate with them on any subject connected with the trial, etc.

"(18) The court erred in overruling and disallowing appellant's motion for a new trial, and in passing sentence upon him."

As to the first assignment, we will say that we have read the testimony brought up by the bill of exceptions in this case, and are thoroughly convinced that the jury were fully justified in returning the verdict they did, and hence we are of the opinion that this assignment is not well taken.

As to the second assignment, it appears from an examination of the record that the indictment in this case was returned by the grand jury on December 5, 1901, and filed by order of the court; that on May 18, 1903, the defendant was formally arraigned, and pleaded not guilty; that on May 20, 1903, defendant filed his motion for continuance, which was granted, and case continued until the next term of the court, and set for trial on the second Monday of the next term. On January 12, 1904, defendant filed his application for change of venue, which on January 15, 1904, was overruled by the court, to which defendant excepted, and on same day defendant filed motion for continuance, supported by his own affidavit that the evidence of certain witnesses therein named was material to his defense. It appears that a subpoena for said witnesses was issued December 26, 1903, but they could not be found. It thus appears that from May 20, 1903, until December 26, 1903, no step was taken to secure the attendance of witnesses. The court overruled the motion for continuance. In Jackson v. State, 54 Ark. 243, 15 S. W. 607, the court quotes with approval Thompson v. State, 26 Ark. 323, as follows: "In Thompson v. State, 26 Ark. 323, it was held that continuances in criminal as well as in civil cases are, as a general rule, within the sound discretion of the court, and that a refusal to grant a contin