could not obtain a fair trial therein, but, on being brought into court for cross-examination, the witness 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 getting a continuance, they were properly permitted to withdraw the same.

4. 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. 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. 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. 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.

8. 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. 88 S. W. 334

Beadle VS. Paine et al.

(Supreme Court of Oregon. May 15, 1905.)

1. In an action against a physician for injuries to plaintiff, owing to negligent treatment of his fractured arm, a physician was asked on his examination in chief if there was not an X-ray machine in the city where plaintiff was treated, to which he replied that a certain physician had one. HELD that, on cross-examination, questions put to the witness for the purpose of. ascertaining whether it was usual in that locality for other surgeons to have such a machine, or whether the one possessed by the doctor in question was the only one, were not without the scope of proper cross-examination.

2. A witness having testified that, in a healthy person, union of fractured bones would always take place, and that he had read a certain medical book, and having pronounced the work standard, he was asked if it was not stated in such work that cases had occurred of young men in good health where the fracture remained ununited to the end of the fifth or sixth month, though the bones were kept in position. HELD, that the question was not improper.

3. Where questions put to witnesses on cross-examination were contained in former questions to which no objections were made, it was within the discretion of the court to allow the questions to be answered or not.

4. In an action for malpractice of medicine, where the defendant is charged with negligence or nonobservance of proper care or want of skill, it is a good defense that the patient was negligent at the time, which conduced or contributed to produce the injury complained of, but it will not suffice to defeat the action that the injured party was subsequently negligent, and thereby conduced to the aggravation of the injury primarily sustained. 80 Pac. Rep. 903.

CURRENT OKLAHOMA DECISIONS.

CITY OF GUTHRIE,

Plaintiff in Error.

VS.

No. 1589.

MOLLIE CAREY, Defendant in Error.

(Supreme Court of Oklahoma. Filed June 7, 1905.) Error from the District Court of Logan County. John H. Burford, Trial Judge.

Affirmed.

1. Trial.-Remarks of Court. -Harmless Error. The remarks made by a judge to counsel during the progress of a trial, are not instructions to the jury. It is next to impossible for a case to progress without some remark between judge and counsel, usually in the nature of inquiries. When remarks made by the judge in the progress of a trial are not calculated to mislead the jury or prejudice the party complaining, it is not ground for reversal.

2. Same. Observations of the court to counsel in the hearing of the jury, during the progress of the trial, though often to criticism, if of but slight importance, and only possibly, not probably, injurious, will not be sufficient to warrant a reversal, where the jury were properly instructed that they were the sole judges of the evidence.

Cross-examin

3. Witness.-Cross-Examination, ation is intrusted largely to the discretion of the trial judge, and unless there is a plain abuse of that discretion, the case will not be reversed for errors in this particular.

(Syllabus by the Court.)

James Hepburn and Lawrence & Huston,

Attorneys for plaintiff in error.

Dale & Bierer and Brown & Stewart,

Attorneys for defendant in error.

STATEMENT.

This was an action brought by the plaintiff below, Mollie Carey, in the district court of Logan County, against the city of Guthrie, for personal injuries alleged to have been caused by a fall on defective sidewalks in said city on or about the 19th day of March, 1902. Case was tried in December, 1903, before a jury, verdict rendered for the plaintiff and against the defendant for the sum of $1,700. Motion for new trial was filed, overruled, and judgment rendered on verdict. Defendant excepted, and case is brought here for review.

Opinion of the Court by

IRWIN, J.:

(After stating the facts).

In this case there was practically but one assignment of error, and that is that the trial judge during the progress of the case made prejudicial remarks to counsel for defendant, which influenced the jury in its decision. We have carefully examined the record, and we think that the remarks of the trial judge as stated in the record do not bear out this contention. While it is no doubt true that the remarks of the trial judge were open to some degree of criticism, we do not think that they could have been understood by the jury as expressing any opinion as to the merits of the case, or as to the credit or discredit of any witness. Every unguarded expression of the judge in stating reasons to counsel for his rulings cannot be treated as a ground for granting a new trial. While a trial court should be exceedingly cautious in his language in the presence of the jury in regard to any matter that may arise in the trial of a case, the decision of which is submitted to the jury, still we know as a matter of common experience that it would be almost impossible to go through the routine of an ordinary trial in a court of justice, and in the ordinary questions and

controversies that arise between counsel as to propositions of law on the admission of evidence, for the court to entirely refrain from taking any part in the discussion, or from occasionally making some remark in the case. But we take the rule to be that no remarks of the court should ever be considered as reversible error unless it be shown that by a reasonable construction of the language and a reasonable understanding of his words they would have a tendency to prejudice one side or the other in the mind of the jury. The remarks of the presiding judge in this case as shown by the record we think are not susceptible of this construction, and we think that if the language used could, by any stretch of imagination, be considered as having a prejudicial influence in the mind of the jury, that influence was certainly removed by the instruction the court gave the jury as shown on page 114 of the record. The court there say: "I will say to the jury that the controversy between court and counsel in reference to that matter is not for your consideration, and you will disregard it entirely. It has no relation to the facts in the case which you are to determine, and only a matter of propriety I was talking about with the counsel in the case, and it is not a matter for your consideration, and you will disregard it entirely." This plain and candid statement by the court to the jury would certainly, to any fair-minded and reasonable jury, relieve the remarks from any insinuation or expression of bias or prejudice in favor of either side in the case.

We have examined the cases cited by counsel for plaintiff in error, and we think that this distinction between the case at bar and the cases cited runs all through those decisions. In the decisions there cited the remarks of the court were always in regard to some material matter then pending for decision before the jury, and were such as to express or give the jury an idea of