uance is never ground for a new trial unless it clearly appears to have been an abuse of such discretion, and manifestly operates as a denial of justice."'" In Loftin et al. v. State, Use, etc., 41 Ark. 156, the court said: "It must be a flagrant instance of the arbitrary or capricious exercise of power by the circuit court, operating to the denial of justice, that will induce us to interfere." We are of the opinion that the court acted correctly in refusing the continuance.

As to the third assignment, that the court erred in not granting new trial on ground of newly discovered evidence, the motion is based upon the affidavit of Bob Hill, a negro, which is vague and indefinite. He states that a colored man came to his restaurant in South McAlester and made statements about the case; "that said colored man was unknown to affiant; that affiant did not make inquiry to his name, not knowing anything about the case or the circumstances of the killing, and in no way interested in it, and does not know the whereabouts of said colored man." We do not think the court erred in refusing new trial on ground stated. The fourth assignment is overruling motion for change of venue. Granting change of venue is regulated by Mansf. Dig. §§ 2195, 2196, which are as follows:

"Sec. 2195. Any criminal cause pending in any circuit court may be removed by the order of such court, or by the judge thereof in vacation, to the circuit court of another county, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial can not be had therein.

"Sec. 2196. Such order of removal shall be made on the application of the defendant by petition setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the attorney for the state, and the truth of the allegations in such petition be supported by the affidavit of some credible person."

It thus appears that the application shall be by petition, supported by affidavit of some credible person; reasonable notice to be given to the attorney for the state. In Curtis v. State, 36 Ark. 286, the court said: "The prosecuting attorney filed the counter affidavits of four persons, in which they severally stated, in substance and effect, that they were well acquainted with Silvia Finch; that she was of bad moral character and unworthy of credit as a witness. Defendant filed no affidavits to sustain her credibility, and the court overruled the motion for change of venue. The statute requires the application for change of venue to be verified by affidavit, and the truth of the allegations thereof to be supported by the affidavit of some credible person. Gantt, Dig. § 1869. 88 S.W.-22

It seems that the court below decided, upon the counter affidavits filed, that Silvia Finch was not a credible person, and we cannot undertake to say that she was." In Jackson v. State, 54 Ark. 247, 15 S. W. 609, the court said: "We are of the opinion that it was within the discretion of the court to receive the oral testimony of those witnesses as to facts affecting their own credibility, and their testimony, as set forth in the bill of exceptions, is such as we think amply supports the finding of the court that they were not credible witnesses. It follows that the court did not err in denying either of the appellant's applications for a change of venue." In this case the witnesses, upon examination, stated that they 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. * * court permitted the said witnesses to withdraw their affidavits, and thereupon held the statute had not been complied with, and we think the court acted' correctly.

The

The fifth assignment states that persons of his own race were excluded from the grand jury because of their race and color. If the statement of fact made in this assignment was true, it would be reversible error, but nowhere does the record disclose such a state of facts; and a statement of a fact in an assignment of error which is absolutely false, so far as the record is concerned, is not only illegitimate practice, but deserves the condemnation of this court.

The sixth assignment was the alleged error in excluding from the jury a certain question and answer-as to whether Eliza Dixon, a witness for the government, was a "coke fiend" (meaning a cocaine fiend); and appellants cite Underhill on Criminal Evidence, § 168, in support of their assignment, but Mr. Underhill says: "The habitual use of morphine may be shown, and, if proved, is a circumstance for the jury to consider in determining the mental condition of the accused." Hence it appears that the mental condition of the accused may be examined into, but not a witness. The jury are the judges of the credibility of the witnesses. "And it has been held inadmissible, in order to attack veracity, to prove the bad character of a female witness for chastity, or to show she is a prostitute (Pleasant v. State, 15 Ark. 624), or to prove habits of intemperance, which do not affect the perceptive or narrative powers." Whar. Cr. Ev. (9th Ed.) 486; Thayer v. Boyle, 30 Me. 475; Hoitt v. Moulton, 21 N. H. 586. Evidence of the use of opium cannot be introduced to impair credit unless it be shown that the witness was under the influence of opium when examined, or that his powers of observation or recollec

tion were affected by the habit. Whar. Cr. Ev. (9th Ed.) 384a. Hence the court committed no error in excluding this question.

The seventh assignment was the alleged error in charging that Berger had the right to draw his gun, and, if the defendant pressed upon him, he would have the right to use it. In the cross-examination of the witness Jones the following testimony was given: "Q. At the time the first shot was fired, who were in the car? A. Mr. Garvey, Lee Berger, myself, and Duffy. Q. Berger was leaning with his left arm on the counter? A. Yes, sir; facing the south door. Q. Where was he shot? A. He was shot about an inch below the navel. Q. The defendant did no talking to Lee Berger, did he? A. No, sir; he did not. Q. Do you know whether he and Berger were good friends? A. I don't know what the relation was between them at all. * * Q. Did you see Berger with a pistol? A. Berger had a pistol at that time; yes, sir." Berger was shot by the appellant, and the court probably had in mind the fact that the testimony showed that Berger had a pistol at the time. We think there was sufficient evidence to support the instruction, and consequently no error.

The eighth, ninth, tenth, and eleventh assignments were charges given to the jury, and were entirely applicable to the testimony in the case, and we might add that no exceptions were saved to any of them. Appellant complains in his ninth and tenth assignments that they do not instruct that defendant had a right to act in self-defense, from an honest belief that he was in danger; but no exceptions were saved, and no request made of the court to give such an instruction. We are of the opinion that these assignments were not well taken, and the authorities cited by appellant are not applicable to this case.

The twelfth, thirteenth, and fourteenth assignments was the refusal of the court to charge on the law of manslaughter. From an examination of the evidence in the bill of exceptions, we can find no evidence whatever tending to prove the crime of manslaughter. "It is error for the court to assume facts in an instruction not authorized by the evidence." St. Louis, I. M. & S. Ry. Co. v. Rosenberry, 45 Ark. 256. "On a trial for homicide, where there is no evidence whatever tending to prove a degree of the offense below that charged in the indictment, the court should refuse to instruct the jury as to such lower offense." Fagg v. State, 50 Ark. 506, 8 S. W. 829. We are of the opinion that the court was correct in his refusal to charge on the law of manslaughter.

The fifteenth and sixteenth assignments are the failure of the record to show that the jury was placed in charge of an officer sworn as the law directs, and a failure to show that the jury, when returned into court, were in charge of the same officer in whose custody they were placed. Sections 2265, 2266, 2281,

Mansf. Dig., regulate and direct the manner juries shall be cared for during the recess of the court. They are as follows:

"Sec. 2265. The jurors, before the case is submitted to them, may, in the discretion of the court, be permitted to separate, or be kept together in the charge of proper officers. The officers must be sworn to keep the jury together during the adjournment of the court, and to suffer no person to speak to or communicate with them on any subject connected with the trial, nor do so themselves.

"Sec. 2266. The jury, whether permitted to separate or kept in charge of officers, must be admonished by 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, and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, or form or express any opinion thereon until the cause is finally submitted to them. This admonition must be given or referred to by the court at each adjournment."

"Sec. 2281. Where the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge, their names called by the clerk, and, if they all appear, their foreman must declare their verdict."

"When the jury goes out to deliberate on its verdict, it is committed to the care of a sworn officer of the court." 1 Bishop, Cr. P. & Practice, 991. In Hurley v. State, 29 Ark. 28, the court said: "That the jury were not sworn in accordance with law, but were illegally sworn: The record entries show that the jurors were sworn, but the form of oath administered is not set out in the entries, nor in the bill of exceptions. In the absence of any showing to the contrary, it must be presumed that the oath was administered in proper form. Greenwood v. State, 17 Ark. 332." It does not appear from the record that any objection was made or exception saved to the officer not being sworn as the law directs, but the record does show that the jury were placed in charge of a "sworn bailiff." We are of the opinion that this is sufficient, and that the same presumption will be indulged as to the officer as is indulged when the record shows that the jury were duly sworn. But this objection was not made at the trial, nor was it included in the grounds of the motion for new trial, and the first we hear of it is in these assignments of error. In Atterberry v. State, 56 Ark. 520, 20 S. W. 412, the court said: * We hold that it is too late, after verdict, to object for the first time that a jury retired from court in charge of an officer to whom the special oath had not been administered, where it appeared that the defendant was present when it retired, and neither asked that the special oath be administered to him, nor objected to his tak

ing charge of the jury, and it does not appear that either the officer or the jury was guilty of any misconduct." We therefore are of the opinion that the assignments are not well taken.

The seventeenth assignment is the alleged error of the court in not admonishing the jury as required by statute. No objection was made or exception saved, and we are of the opinion that the presumption is that the court did his duty, and hence there was no

error.

A special brief has been handed to this court as a reply to the proposition that the court will not entertain any presumption that the officer was sworn as required by law, and it is insisted that the state must show the fact affirmatively. We have already expressed our view to the contrary, but, be that as it may, it is evident, under the decision in Atterberry v. State, supra, that appellant is too late to raise that question after verdict.

Being satisfied that there is no substantial error in the record, we are of the opinion that the judgment of the court below was correct, and it is therefore affirmed.

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

TALLY v. STATE.

(Court of Criminal Appeals of Texas. June 23, 1905.)

1. CRIMINAL LAW COUNSEL.

On a prosecution for burglary, where the only testimony tending to show a conspiracy to burglarize as charged was inadmissible, and for that reason excluded, it was error to permit the district attorney, in argument to the jury, to refer to the exclusion of the evidence, and forcibly state what the evidence would have been, had he been permitted to introduce it, and that it would have shown a conspiracy, even though he was challenged by plaintiff's counsel to state why proof of the conspiracy was not introduced.

2. SAME-EVIDENCE-ADMISSIBILITY.

On a prosecution for crime, evidence of defendant's intoxication is inadmissible to affect his credibility.

3. SAME-INSTRUCTIONS.

Where the defendant's testimony had not been attacked, nor his credibility assailed, but evidence was admitted of his intoxication, a charge that evidence of defendant having been drunk might weaken his testimony and affect his credibility as a witness was erroneous, as in violation of the statute prohibiting charges on the weight of testimony.

Brooks, J., dissenting.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Henry Tally was convicted of burglary, and he appeals. Reversed.

H. E. Taylor, J. H. G. Lee, and James H. Lyday, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of burglary. The state asked the wit

ness McKee the following question: "Had you received instructions that there was a plan on foot to burglarize that house?" Objections were urged and sustained, and the question was not answered. The district attorney, in his opening remarks to the jury, stated, in substance, while commenting upon the excluded question and proposed evidence of McKee: "If defendant's counsel had not objected, and if the court had not excluded the proffered testimony of said McKee, he could have shown by said witness why the officers were watching said house and defendant and Haney on said night, and that this evidence, to which counsel for defendant objected, and which the court excluded, would have fully warranted all honest men to convict of the crime charged." "That the district attorney, in his closing argument to the jury, made an inflammatory appeal to the jury to convict on the excluded evidence, and, among many other illegal and unwarranted statements, stated in his closing argument to the jury that defendant's attorney had objected to said testimony, and had same excluded by the court, because they were afraid, and because it would have shown a plot to burglarize said house before they reached it, and would exclude the pretense that defendant was taking said Haney home because he (Haney) was drunk; and the further contention that he was gagging at the door, and defendant thought he was vomiting; and that the officers knew it beforehand, and were watching defendant and Haney; and, if the said evidence had not been excluded, it would have shown a prior conspiracy to rob the house by defendant and Haney; and that no honest jury could afford to acquit defendant." Exception was reserved to these statements, and the court refused to stop the district attorney and instruct the jury to disregard the remarks on the excluded evidence. Whereupon appellant appealed to the district attorney, and asked him if he wanted to convict defendant on exIcluded and illegal evidence; and he refused to stop, and continued his remarks on said excluded evidence. The court explains this bill as follows: "The district attorney, in his opening argument, did argue to the jury that the house was being watched, as was testified to by one of the witnesses (J. W. McKee), but did not in his opening argument refer to the question asked, as shown by bill No. 2. The counsel for the defendant, in their arguments, repeatedly called upon the district attorney to show why these men were watching the house, and asked him if he wanted to convict the defendant by withholding testimony, and, if he wanted to convict defendant, why did he keep back testimony, etc., and insinuated that he had testimony that he would not produce, and asked the district attorney if he wanted to convict the defendant on illegal testimony; referring to testimony in bill No. 2. And the argument of the district at

torney in his closing speech was simply brought out in answer to the argument of defendant's counsel. The counsel for the defendant did not request a charge instructing the jury to disregard the remarks of the district attorney." This is the bill as qualified. The matter referred to, as contained in bill of exceptions No. 2, is the question asked by the district attorney, above set out, to wit: "Had you received instructions that there was a plan on foot to burglarize that house?" We have held in many cases that where illegitimate argument has been indulged, unless of a serious character, it will not call for a reversal, and in quite a number of cases that it is incumbent on the accused to ask instructions to the jury to disregard such illegitimate argument. This practice of requiring the accused to ask for special instructions has been a gradual growth under the decisions of this court, since Kennedy's Case, 19 Tex. App. 618. The writer is not clear in his mind that this line of decisions is correct. It is the duty of the court, under our statute, to give all the law applicable to the case; and if illegitimate argument is indulged, and the jury are misled, or likely to be misled, against the law and the facts, the court should guard against this error, as well as any other error in which charges are necessary. Be this as it may, there is no question as to the condition of this matter under this bill of exceptions. The state had undertaken to prove testimony which the court ruled out as inadmissible and illegal. Upon the argument of the case, counsel for the state went over this matter, and informed the jury that, but for the interposition of appellant's exception, he could have proven a previous conspiracy to burglarize the house. So far as the bill of exceptions is concerned, it seems that the only attempt to prove any conspiracy or previous knowledge of a conspiracy on the part of the officers was that shown in bill No. 2. The court held that said testimony was illegitimate, and, in our judgment, that ruling was correct. The evidence was ruled out, and yet the district attorney forcibly stated before the jury what this would have been if he had been permitted to prove it, and that it would have shown a conspiracy. It would hardly be questioned that this was very damaging, because it was supplying illegitimate testimony, and evidence that the court had ruled could not go to the jury. Yet in the argument of the prosecution this was made to play the part of testimony against the accused. This was not justifiable under any circumstances. However, the court says that this was in answer to argument of counsel for appellant. We do not agree with this statement. It is true that counsel for appellant asked why the conspiracy, if such existed, was not proved. This he had the right to do. If there was anything indicating a conspiracy, he had the right to ask the state why it did not introduce such testi

mony. In other words, accused had the right to ask, if there was testimony that could have been before the jury, why it was not placed there. This, of course, means legitimate testimony. It does not mean illegitimate testimony, or such evidence as was not permitted to go before the jury, even as a circumstance for the jury to consider in arriving at a conclusion of guilt. We think the court erred in permitting this line of argument, and further erred in not instructing the jury to disregard it. Conviction ought not to be obtained in this way. In fact, convictions should always be predicated alone upon testimony introduced before the jury, and not upon that excluded.

The state, without objection, introduced evidence to the effect that appellant had been drunk at the theater, and had been put out of the house. The court limited this evidence to the question of impeachment of appellant as a witness. Exception was reserved to this portion of the charge, which we think was well taken. If it be conceded that appellant was drunk in the theater, this is not such an offense as would justify its introduction to attack the credibility of the defendant or the weight of his testimony. Nor do we think that it is likely that it was introduced for that purpose. In fact, the indications are rather that it was introduced for another purpose. It might reflect somewhat upon his general standing, but could not affect his credibility as a witness. Drunkenness is not one of those crimes recognized as involving moral or legal turpitude. The fact of his being drunk at the theater was culled out and charged upon. This was a charge upon the weight of the testimony, and that fact relegated to a position before the jury on the testimony which the law does not recognize. Appellant's testimony had not been attacked, nor his credibility assailed, and yet the court informs the jury that this testimony may or does weaken his testimony before them, and affects his credibility as a witness. The evidence was injurious, and not only so, but the charge is directly violative of the statute which prohibits the court from charging upon the weight of the testimony.

The judgment is reversed and the cause remanded.

HENDERSON, J. I agree to a reversal of the case on the last proposition.

BROOKS, J. (dissenting). I do not agree to the reversal, and believe the judgment should be affirmed. My reasons are as follows:

In the motion for new trial, appellant criticises the sixteenth paragraph of the charge, which reads:

"The statement of the witness Andy P. Evans, introduced by the state, wherein he stated, in substance, that he saw Henry Tally at the theater some time before the bur

glary, drunk, and that he put him out of the theater because he was drunk, was not admitted before you as original testimony, but only for the purpose of aiding you in determining the weight and credibility of the testimony of the said witness Henry Tally, and you will consider it for no other purpose whatever."

The testimony on which this charge was predicated was admitted without any objection being offered. If objection had been offered, it would have been error for the court to permit the same to be introduced for the purpose of impeachment, since it would be an effort to impeach upon an immaterial issue. Under the authorities of this court, we have never held that drunkenness brought about that degree of moral turpitude which authorized its introduction in evidence to discredit a witness. However, the testimony having been introduced without objection, for the court to limit it to one purpose, whereas the jury might have considered the same for other purposes without said limitation in said charge, I cannot see how appellant can complain thereof. Without said charge it could have been considered for all purposes, but under said charge it could be considered only for the one purpose. To this extent this charge is not injurious to appellant. other words, appellant would have been injured more if the charge had not been given than by its being given. It is a well-known rule, under article 723, Code Cr. Proc. 1895, that a charge which does not injure defendant will not authorize a reversal.

COLE v. STATE.

In

(Court of Criminal Appeals of Texas. June 21, 1905.)

1. HOMICIDE-EVIDENCE-ADMISSIBILITY.

It is not error on a trial for homicide to admit evidence of blood found on the ground where the homicide occurred and of the wounds inflicted on decedent, where the same is pertinent to issues in the case.

2. SAME HEARSAY EVIDENCE.

On a trial for homicide, evidence that decedent's wife had stated that decedent had threatened to kill defendant was hearsay, and inadmissible.

3. SAME-EVIDENCE-PREJUDICIAL ERROR.

The admission of evidence, on a trial for homicide, that defendant, a married man, had visited at the house of a woman who had two daughters-one married, living apart from her husband, and one unmarried-and that he had on one occasion gone with the daughters to church, though erroneous, because immaterial, was not prejudicial.

dent in endeavoring to keep defendant's wife from living with him, including what passed between defendant and a third person with reference to procuring a writ of habeas corpus to secure the custody of the wife, living in her father's house; such evidence not being selfserving, but showing defendant's condition of mind at the time.

5. SAME

SELF-DEFENSE-EVIDENCE.

A defendant on trial for murder, who relies on self-defense, has the right to show any fact tending to prove the good faith of his belief that he was in danger, and he is entitled to rely on proof of the desperate character of decedent, and on proof of special acts communicated by decedent to him indicating his dangerous character, but cannot show that decedent told him that he had run away from a place where he had had difficulties with the officers without showing what the difficulties were. 6. SAME-EVIDENCE-ADMISSIBILITY.

Where, in a prosecution of defendant for the murder of his father-in-law, the defense was that decedent was forcing defendant's wife to remain away from him, and the state endeavored to show that the relations between defendant and his wife were not friendly, letters written by defendant to the wife prior to the homicide, showing that their domestic relations were pleasant, were admissible in rebuttal, and as showing the state of his mind with reference to his wife and decedent. 7. SAME.

On a trial for homicide it is error to permit the state to show that defendant, while in jail awaiting trial, was studying law, in order to learn to fabricate a defense. 8. SAME.

Where defendant, on trial for homicide, relied on self-defense, the testimony that decedent, a few weeks before the homicide, looked feeble, and had an injury to his side, was inadmissible, in the absence of a showing that defendant had knowledge thereof.

9. WITNESSES-HUSBAND AND WIFE-CONFI

DENTIAL COMMUNICATIONS.

Code Cr. Proc. 1895, art. 774, providing that neither husband nor wife shall testify as to any communications made by one to the other while married, etc., does not render the wife of defendant on trial for murder incompetent to testify that defendant, immediately after firing the shot which killed decedent, exclaimed in the presence of his wife and her mother, "I told you I would do it," the exclamation not being a confidential communication. 10. SAME.

On a trial of defendant for the murder of his father-in-law it was error to admit in evidence a letter written by decedent to defendant's wife, when living with her husband, about a year before the homicide, containing expressions of decedent's good will to defendant, and by the wife handed to defendant, who read the letter, it being a confidential communication by the wife to defendant.

11. HOMICIDE-HEARSAY EVIDENCE.

On a trial of defendant for the murder of his father-in-law, defended on the theory that decedent was forcing defendant's wife to remain away from him, evidence of what defendant's wife stated defendant had said to her on the occasion of a quarrel was inadmissible. 12. SAME-MANSLAUGHTER PROVOCATION

SUFFICIENCY.