dicted, after explaining the transaction fully, testified that "she bought it from the sheriff, and the note was given for the balance of the judgments, and I received of Mrs. Snyder the money which satisfied the judgments. The sheriff never had any money, but the satisfaction of the judgment was through the sheriff." If the real property to be sold was of little or no value, and the contract between appellant and Craig contemplated her right to bid at the sale, if she chose so to do, with a faint hope of getting something out of the property, it is clear that her purchase at such sale was no breach of her contract with Craig; and it is equally clear that going through the mere forms of having the sheriff return that he received the money as the price bid for the land, paid it over to the judgment creditor, etc., did not estop appellant, as against Craig, from showing the real facts. And the evidence tends strongly to the point that the contract was made in contemplation of appellant's right to bid at the sale. The contract was made on Saturday, June 28, 1890, and the sale of the real property was to take place on the 30th, --the next Monday. Mr. Enos, who witnessed the making of the contract, and whose testimony is uncontradicted, testified as follows: "Mrs. Snyder said to Mr. Craig: The sale of the real estate is to take place on Monday, and I want to know whether I will pay my father's share of the judgment of $2,010, or not. I will pay my father's share of that judgment if you will pay your share. I have got a ten thousand dollars and a little over judgment against me that I am responsible for, and I will not bid the real estate off unless you agree to pay your half of the judgment.' Mr. Craig told Mrs. Snyder that if she would pay her father's share of that judgment against him, that he would pay her $1,005, his share of the $2,010; that he expected George Maxwell to pay him, on the first of August, $2,000; then he would pay her the money. Mrs. Snyder said: 'Mr. Craig, I will pay the whole of the judgment if you will pay your half according to this arrangement.' He said he would." He further testified that Mrs. Snyder gave her note to Wickersham for the amount of the two judgments, and that he (the witness) afterwards paid and took up the note with her check. Lippitt also testified that he acted for Mrs. Snyder at the sale; that he was first instructed by her to bid the amount of the judgment upon which she was liable,-something over $10,000,-and was afterwards instructed by her to bid the amount of both judgments, "as she had an agreement with Mr. Craig." This witness also testified that the purchase turned out to be worthless. We are not able to see where this testimony was materially weakened, although the cross-examination developed a little confusion, and the evidence was perhaps not quite as full as it might have been. We will not, therefore, determine whether or not the finding

was against the evidence that was actually introduced, because we think that the court erred to the prejudice of appellant in excluding certain evidence which she offered.

Appellant offered to prove that the land bid in by her at said sheriff's sale was mortgaged to the extent of $6,000, and that there had been a homestead declaration upon it made by G. C. P. Sears before the levy of the executions. The court sustained a general objection to this evidence, and appellant excepted. We think that this ruling was erroneous and material. The appellant clearly had the right to show the condition and value of the land, as a circumstance in the light of which her said contract with Craig was made, and as tending to show that the contract was as she claimed it to be. It is not to be supposed that Craig would have made such a contract if the land which he knew would be sold in a day or two, under the executions could probably be sold to a bona fide bidder for the amount of both judgments; but if the land was so incumbered as to be of no value, or of but a slight speculative value, he might well get rid of a judgment for the whole of which he was liable, by agreeing to pay onehalf of it, regardless of the fact that appellant might, if she chose, bid off the land at the sheriff's sale, and take the chance of making something out of it in the future. The condition and value of the property bid off by appellant, the circumstances under which the bid was made, and the agreement with Craig entered into, and whatever tended to show whether or not the purchase of the land by appellant was a breach of said contract, should be admitted in evidence. We think that the court properly admitted in evidence the executions and the returns of the sheriff thereon. But they were not conclusive against appellant in this action. She had the right to show the real facts as to the satisfaction of the judgment, although the returns of the sheriff showed the form by which such satisfaction was expressed. Judg. ment and order reversed, and a new trial or dered.

We concur: DE HAVEN, J.; FITZGERALD, J.

(52 Kan. 531)

STATE v. SORTOR.1 (Supreme Court of Kansas. Nov. 5, 1892.) HOMICIDE INDORSEMENT OF ADDITIONAL WITNESSES ON INFORMATION COMPETENCY OF JURORS REMARKS OF COUNSEL-IMPEACHMENT OF

WITNESS-EVIDENCE-JUSTIFICATION-INSTRUC

TIONS.

1. The defendant in a criminal case has no cause to complain of a ruling permitting the state to indorse the names of additional witnesses upon an information, where sufficient time is given to make inquiry regarding the character and credibility of the proposed witnesses before the introduction of any evidence in the case.

2. The defendant, who is charged with murder, admitted the killing of the deceased, bu 'Rehearing denied.

claimed that he was justified in doing so on the ground of self-defense. Several jurors stated on their voir dire that they had read and heard of the killing, and held the opinion that the deceased had been shot and killed by the defendant, but they had not formed or expressed any opinion as to the guilt or innocence of the defendant. It appeared from the examination that their minds were free from any previously formed opinions on any of the material facts or questions involved in the case. The court overruled these challenges, and retained the jurors. Held, that no substantial error was committed.

3. Held, also, that the trial court did not commit error, under the circumstances of the case, in sustaining the challenges to several persons who were examined upon their voir dire to serve as jurors.

4. If the language employed by counsel for the state in his opening statement is deemed improper, it is the duty of the defendant's counsel to make an objection, and secure a ruling thereon from the trial court; and ordinarily, where this is not done, no review of the ruling can be had; and, under the facts of this case, it is held that there was no such misconduct of counsel as would justify a disturbance of the verdict.

5. While ordinarily a party may not impeach his own witnesses, nor offer evidence for that purpose, he is not conclusively bound by the statements which the witness may make; and where a party has been entrapped or deceived by an artful or hostile witness he may examine such witness as to whether he had not previously made contrary statements, and may, in the discretion of the court, be permitted to show what such contrary statements were.

6. Where a defendant freely offers himself as a witness, and voluntarily gives testimony in a preliminary examination or trial, such testimony may be introduced and read against him in the final trial of the cause.

7. In such case the state is not required to read the whole of the testimony given by the defendant, but, when testimony as to any particular subject or fact is offered, then all that relates to that subject or fact should be placed before the jury.

8. Where there have been previous controversies and difficulties between the defendant and the deceased, the existence of such controversies and difficulties may be shown by the defendant, in order to show the state of feel. ing between them; but the court would not be warranted in trying the merits of such controversies, nor in entering upon a detailed examination of the facts as to who was right and who was wrong in any former quarrel between them.

9. The jury were instructed, in substance, that a person is presumed to intend to do that which he voluntarily does do, and intends all the natural, usual, and probable results of his own voluntary acts; and if the jury found that the defendant shot and killed the deceased as charged in the information, and that the natural and ordinary consequences of such shooting would be the death of the deceased, then the presumption would be that the defendant shot with the intent to kill him. The jury were informed in the same connection that this was not a conclusive presumption, but might be rebutted and overthrown by the evidence. Held, that this instruction was not incorrect nor prejudicial.

10. In charging the jury the court defined manslaughter in the fourth degree as laid down in section 26 of the crimes act, but refused to call the attention of the jury to manslaughter in the fourth degree as defined by section 27 of the crimes act. Held, that there was no evidence in the case which warranted a charge under the latter section.

11. The court charged the jury that "evidence of previous good character is competent evidence in favor of the party accused, as tend

ing to show that he would not be likely to commit the crime charged against him, and may, under some circumstances, be sufficient to cre ate a reasonable doubt of his guilt when it would not otherwise exist; but if the jury be lieve from the evidence that the defendant did commit the crime in question, as charged in the information, it will be your duty to find the defendant guilty, even though the evidence may satisfy your minds that the defendant, previous to the alleged crime, had sustained a good reputation and character as a peaceable, quiet, law-abiding citizen." Held, that there was no error in giving this instruction.

12. It is not error for the court to refuse the giving of instructions requested by the defendant where the propositions of law stated therein have already been fairly stated in the general charge of the court. And held, further, that under the facts and circumstances of this case no error was committed by the court in charging the jury upon the doctrine of self-defense. 13. Affidavits and evidence offered upon a motion for a new trial in a criminal cause are no part of the record unless they are incorporated in a bill of exceptions.

(Syllabus by the Court.)

Appeal from district court, Wyandotte county; O. L. Miller, Judge.

Fred. Sortor was convicted of murder in the second degree, and appeals. Affirmed. Hale, Fife & Craig and George Watson, for appellant. John N. Ives, Atty. Gen., and Henry McGrew and C. F. Hutchings, for the State.

JOHNSTON, J. This was a prosecution for murder. The information charged Fred. Sortor with murder in the first degree in the felonious killing of Enoch J. Link on the 30th day of May, 1890, by shooting him with a double-barrel shotgun. The trial re sulted in a conviction of murder in the second degree, and the defendant was tenced to confinement in the penitentiary for a period of 10 years. In the course of a protracted trial a great many exceptions were taken to the rulings of the court, and such of them as seem to us to require attention will be noticed in their order of presentation.

sen

When the case was called for trial the county attorney asked permission to indorse the names of additional witnesses upon the information. Objection was made by counsel for the defendant, on the ground that they had no opportunity to examine into the credibility and standing of the witnesses. It was represented by the prosecution that these witnesses lived in the immediate vicinity of the place of trial, and that notice of the application had been given to the de fendant as soon as they learned the names of the witnesses, and the necessity for calling them. The court permitted the names to be indorsed upon the information, and on the application of the defendant's counsel for delay ruled that no testimony would be received within 48 hours from the time notice was served upon the defendant that such application would be made. The defendant has no cause for complaint on these rulings. Sufficient time was given the de

fendant to make full inquiry regarding the proposed witnesses before the reception of any evidence. Only one of the witnesses whose names were so indorsed was called to testify, and her testimony appears to be wholly immaterial. Besides, the court, in the furtherance of justice, is invested with power and discretion to permit the names of witnesses to be indorsed upon the information after it has been filed, and even after the trial has actually commenced. State v. Cook, 30 Kan. 82, 1 Pac. 32; State v. Adams, 44 Kan. 135, 24 Pac. 71. There was no abuse of that discretion in this instance.

Application for a continuance was made by the defendant on acount of the absence of one Thomas Moody, who was a resident of Wyandotte county, but was then absent from the state. he had testified in favor of the defendant at a previous trial, and soon afterwards went to South Dakota. The application for a continuance was denied, and a sufficient reason for the ruling was a want of diligence on the part of the defendant in an effort to obtain the testimony of this witness. Before the ruling the prosecution offered to consent to the reading of Moody's testimony which was given at the former trial, and the court, in denying the application, ruled that the testimony taken at the former trial might be read in evidence. The defendant availed himself of this privilege, and all of the testimony previously given by Moody was read to the jury. No error was committed by the court in overruling the application for a continuance.

Several exceptions were taken to the rulings of the court in impaneling the jury. Three persons called as jurors, and who were examined as to their qualifications, were challenged by the defendant, but their challenges were overruled. Only one of them served on the panel which tried the case. One of them (Peacock) had read an account of the transaction in the newspapers at the time of its occurrence, and had heard it spoken of by others who had read a like account. From the information derived from the newspaper accounts he formed the opinion that Link was shot by the defendant, and died from the gunshot wound inflicted by him; but upon further inquiry he answered that he had not formed or expressed any opinion relative to the guilt or innocence of the defendant. and knew nothing about the facts of the case, except what he had learned from the newspapers. He was peremptorily challenged by the defendant When another of them, Canary, was examined as to his competency, he stated that he had read the newspaper accounts of the shooting about the time of its occurrence, and had an opinion that Link was dead, and that he died from the effects of a gunshot wound inflicted by Sortor, and that he still entertained the same opinion. He stated, however, that he had had no acquaintance either with the defendant or with

the deceased, and had no personal knowledge of any of the facts of the case, nor had he talked with any one who had personal knowledge of the facts; that he had neither formed nor expressed an opinion as to the guilt or innocence of the defendant; and that he could fairly try the case, and would not be influenced by anything that he had heard or read of the occurrence. He was held to be a qualified juror, but was subsequently peremptorily challenged by the defendant. Charles Stover was challenged for incompetency, but was retained by the court, and was a member of the jury that tried the case. He had read one account of the killing in a newspaper about the time it was done, and this was the only information he ever had about it; but he had formed no opinion therefrom as to the guilt or innocence of the defendant. He had formed an opinion that Link was shot and killed by Fred. Sortor, and he stated that he would continue to think so until the opinion was removed by evidence; but he did not hold, nor had he ever expressed, any opinion as to whether the defendant was guilty of any crime by reason of the shooting and killing of Link. He had never had any acquaintance with either the defendant or the deceased. We think no prejudicial error was committed by the court in its rulings upon these challenges. It is true that the jurors held the opinion that Link was shot by Sortor, and had died from the effects of the wound which he had inflicted; but it appears that this was not a controverted issue between the parties. The defendant had always admitted that he had shot and killed Link, but his claim was that he was justified in doing so, on the grounds of self-defense. The defendant was, of course, entitled to a jury whose minds were free from any previously formed opinions on any material fact or question involved in the case; but an opinion upon a fact openly conceded by the defendant could hardly influence the jurors in determining the guilt or innocence of the defendant. He insisted from the beginning that he had fired the fatal shot in repelling an assault made upon him by Link. He testified fully as to the occurrence upon a former trial, and the fact that he had shot and killed Link was then admitted by him. In the final trial he was again a witness in his own behalf, and stated in detail the circumstances of the killing, making the same admission. It therefore appears that the killing of Link was not a material issue in the case; and, as the jurors challenged had not formed nor expressed an opinion as to whether the killing was justifiable or not, or upon any material fact in issue, no substantial error was committed in overruling the challenges. State v. Wells, 28 Kan. 321; State v. Gould, 40 Kan. 258, 19 Pac. 739.

Complaint is also made of rulings excluding several jurors from the panel. One of thein, who claimed that he had neither formed nor expressed an opinion as to the guilt or inno

cence of the defendant, lived in the neighborhood of the occurrence, was acquainted with the defendant, and had heard the facts of the case discussed by quite a number of persons, some of whom claimed to know all about the occurrence. Another, who thought he could give the defendant a fair trial, had read the evidence of the former trial, from which he had formed an opinion in the case. Another of them was acquainted with the defendant, had heard and read a great deal about the facts, and had expressed an opinion as to the guilt or innocence of the defendant, but was of the opinion that he could fairly and impartially try the case. Another was a brother-in-law of one of the counsel for the defendant, who had talked with several persons in regard to the facts, and was not positive but that he had talked with his brother-in-law in regard to the matter. Another was present a short time during the former trial, and heard a witness testify in the case, had read the newspaper accounts of the case, and held an opinion which was not a mere impression. It appears to us that there is no good reason to complain of the action of the court in excusing these jurors. In impaneling a jury a large discretion is necessarily confided to the court, and there appears to have been some reason in each case for the action taken. From what appears in the record the judge might, as it seems to us, have overruled some of these challenges without committing error. Yet he not only heard their answers, but saw their conduct, and was better able to determine whether they were suitable jurors. The rule applicable in retaining jurors does not apply in discharging them; and so it has been said "that a trial court has, and should have, a very extensive, and almost unlimited, discretion in discharging a person called to serve on a jury, who might, in the opinion of the court, not make the fittest or most competent person to serve on the jury in the particular case. We can hardly see how the court could commit substantial error in discharging any person from the jury when twelve other good, lawful, and competent men could easily be had to serve on the jury." State v. Miller, 29 Kan. 43; Stout v. Hyatt, 13 Kan. 232; Railroad Co. v. Franklin, 23 Kan. 74; 1 Thomp. Trials, § 88; 12 Amer. & Eng. Enc. Law, 360.

There is complaint made about the opening statement of counsel for the state, but only one objection was made at the time. We have examined that objection, and find nothing substantial in it, and we discover very little reason for complaint of any portion of the statement. As the attention of the trial court was not called to other objections now complained of, we cannot examine them. Railroad Co. v. Irwin, 37 Kan. 701, 16 Pac. 146.

The permission granted counsel for the state to cross-examine one of their own witnesses is a matter of complaint. After the

witness had testified in reference to the presence of another at the place and about the time that the fatal shot was fired, and had denied seeing him there, the state inquired if he had not testified differently on a former occasion, and the defendant objected, claiming that they had no right to contradict or destroy the testimony of their own witness. Counsel for the state then informed the court that they were surprised at the testimony that had just been given, for the reason that the witness had given contrary testimony on former examinations, and they asked the right to call his attention to his former statements, and also to show what testimony he then gave. The court decided that they should be permitted to examine the witness as to whether he had previously given contrary testimony, and that they might cross-examine the witness if necessary, to ascertain whether he was mistaken in the testimony now given. They then called the attention of the witness to evidence which he had formerly given at the coroner's inquest, the preliminary examination, and at the former trial of the cause. As to some of the testimony the witness stated that he could not remember whether he had so testified or not, but that, if he did, he was mistaken as to the facts. When the state proposed to offer the evidence previously given by the witness it was excluded by the court upon the objection of the defendant. As a general rule, a party cannot impeach his own witness, nor interrogate him with a view to affect his credibility merely. Neither can he introduce other evidence for that purpose. But, while he may not impeach him, he is not conclusively bound by the statements which he may make. And where a party has been entrapped or deceived by an artful or hostile witness, he may examine the witness as to contrary declarations, and may, in the discretion of the court, be allowed to show what such contrary declarations were. In Johnson v. Leggett, 28 Kan. 605, it was held that "the matter is left largely within the discretion of the trial court; that that court may, when it thinks the interests of justice require, permit a party to show that he is unexpectedly mistaken in the testimony of any witness; that he had good reason to expect other testimony, and what such other testimony would be." In the present case there were some apparent inconsistencies in the statements of the witness,, although they were largely cleared up and explained when his explanations were given. It would seem that there had been no abuse of discretion in permitting the state to probe the recollection of the witness, and to obtain from him explanations of what appeared to be inconsistencies in the testimony he had given. The course adopted enabled the witness to correct and explain his former sworn statements, and was an

act of justice, not only to the parties, but to the witness himself. The corrections and explanations were such that the court did not deem it important to allow the introduction of the testimony previously given by the witness. Bullard v. Pearsall, 53 N. Y. 230; 1 Whart. Ev. § 549; 1 Thomp. Trials, § 512; Greenl. Ev. § 444.

Another exception was taken to the ruling of the court in allowing the state to read portions of the testimony given by the defendant at the first trial of the case. This exception cannot be sustained. The defendant freely offered himself as a witness on the former occasion, and gave testimony in his own behalf; and it is now settled that the testimony of a defendant, voluntarily given on a previous examination, may be read in evidence against him. State v. Miller, 35 Kan. 328, 10 Pac. 865; State v. Taylor, 36 Kan. 329, 13 Pac. 550; 1 Thomp. Trials, § 647.

A further objection in this connection is that the court permitted counsel for the state to read portions of the testimony, while defendant insisted that, if any was offered, all should be read. This objection is not tenable. When former testimony as to any subject or fact is offered, all that relates to that fact or subject should be placed before the jury; but the state was not required to read such parts as related to a wholly different subject from that which they desired to present. Com. v. Keyes, 11 Gray, 323; Starin v. People, 45 N. Y. 333, 339; Rouse v. Whited, 25 N. Y. 170; Railway Co. v. Howland, (Ga.) 9 S. E. 1040; 2 Whart. Ev. § 1108. The court was very liberal to the defendant in this respect, as it permitted him to read to the jury the whole of the testimony which he had given on the former occasion, and hence he has no reason to complain. What has been said respecting the reading of the former testimony of the defendant is somewhat applicable to the objection made to the reading of that which had been given by Mary Baker. A portion of her former testimony was read with a view of contradicting her statements made upon the witness stand at the present trial, and the court permitted the reading of the whole. Her testimony all related to one occurrence and subject, and, when a portion of it was offered, the reading of the whole was permissible. There had been previous disagreements and quarrels between the deceased and the defendant, and, while the court permitted the defendant to show that such controversies had occurred, that threats had been made, and that bad feeling had existed between them, it refused to go into and try the merits of these difficulties. To have entered upon a detailed examination of the facts as to who was right and who was wrong in these would have obscured the real issue, and have served no good purpose. The court allowed a liberal scope of examination as to the

disposition of the deceased towards the defendant, and the acts and threats of the deceased, tending to show that the defendant, as a reasonable man, believed that he was in danger of losing his life or of suffering great bodily harm at the time he fired the fatal shot, were allowed to go to the jury.

There are other objections to the admission of testimony, all of which have been examined, but none of them are deemed to be material nor to require special attention. There is sufficient testimony, we think, to sustain the theory of the state and the verdict of the jury. The deceased was a blacksmith, who worked in a shop situated upon a street or highway in Quindaro, and in the neighborhood of the defendant's home. The defendant was a market gardener, who made daily trips to the Kansas City market, driving a double team attached to an ordinary market wagon. He usually started about 3 o'clock in the morning, and, on account of the dangers attending such an early trip, he states that he usually carried a weapon for defense. The ordinary route of travel to the market was past the blacksmith shop in which Link worked. The testimony tends to show that bad feeling existed between them, and that in passing the shop the defendant had on several occasions made provoking remarks, grimaces, and gestures towards the deceased; and that on one occasion the deceased had been "rovoked into throwing missiles of some kind at the defendant as he passed. On the day of the homicide the defendant took with him to the market a loaded double-barrel shotgun, and in returning from the market in the forenoon of that day he drove by the blacksmith shop, the horses being in a trot as he approached and passed the shop. About the time of passing the shop the deceased came out of the shop with some kindling with which to build a fire around some wagon tires on the roadside near the door of the blacksmith shop. One witness states that defendant about that time muttered or mumbled something in a low voice, and immediately afterwards discharged his gun in the direction of the deceased, either at him or over his head. The horses immediately broke into a gallop, and rapidly bore the defendant away from the shop and the deceased, and when he was from 50 to 80 feet from the wagon tires where the deceased was building a fire the defendant turned around in his wagon and fired the second shot; and whether one or both shots took effect is a subject of doubt, but after the firing of the second shot Link staggered and fell, and immediately expired. The defendant states that he first saw Link come out of the shop when he was 50 yards away; that Link was in the act of building a fire around the wagon tires, as stated, but that he made no remarks to Link as he passed, and that while Link was stooped over, putting the shavings on the fire, he grabbed up some stones, and commenced to throw; that