State v. Medlicott

1. Juroes—Their Opinions and Qualifications. Impressions not amounting to opinions, received from newspaper articles or rumor, do not disqualify a juror, and are not cause for challenge. (Valentine, J., dissenting.) 2. Witnesses; Names on Information. It is' not error to permit a witness on the part of the state in a criminal prosecution, whose name has become known to the prosecutor after the commencement of the trial, to testify, even though the name of such witness has not been indorsed upon the information. (All the Justices concurring.) 3. Dying Declarations; Pule of Admissibility. Statements not under oath can only be admitted in evidence as dying declarations when they are made in extremis, and where the death of the person who made the declaration is the subject of the charge, and where the circumstances of the death are the subject of the declaration, and the person making them is in the full belief that he is about to die; and this condition of the mind must be made clearly to appear. 4. Experts; Professional Opinions of Physicians. A witness cannot be per- ■ mitted to testify as an expert, as to his opinion founded on certain facts and upon a part of the medical testimony in the case, it not appearing what part of the testimony he has heard. Such testimony is not proper even on cross-examination as a test of the witness’ capacity. 5. Instructions, should be pertinent. Instructions which are not necessary, and which are not calculated to assist the jury in deciding on the issues submitted to them, ought not to be given, although they are correct statements of the law upon the subject or point to which they relate.

Error from Anderson District Court. Isaac M. Euth was found dead in bed at Ms residence in the city of Lawrence, Douglas county, on the morning of April 27tli, 1871. His death was claimed to have been produced by means of poison. Defendant Medlicott was a practicing physician and surgeon in Lawrence, and was Ruth’s family physician, and from his own testimony it appeared that he was at Ruth’s on the night of the 26th of April; that while there he played a few games of chess with Ruth; that Ruth complained of being unwell, and Medlicott prescribed quinine, and that Medlicott left Ruth’s house about half past ten at night. Ruth’s wife was absent, and besides Ruth there was no one in the house except the children of Mrs. Ruth by a former marriage. Medlicott was charged with the killing of Ruth, and an information was duly filed against him for murder in the first degree. Upon his application, and upon the ground that the prejudice of the people of Douglas county was so great against the defendant that he could not have a fair and impartial trial in that county, the place of trial was changed to Anderson county. The case was tried at the September Term 1871. The errors complained of, and the facts and evidence in relation thereto, so far as they are material to the decision of the case, are sufficiently stated in the opinion. * One of the witnesses called by the state was a man named Henry Johnson, who was under indictment for burglary, and who testified to several alleged conversations with Medlicott while both were confined in jail awaiting trial, and to several alleged confessions or admissions made by Medlicott. The defense claimed that the testimony of Johnson was false, and that it liad been induced by reason of promises on the part of the prosecuting attorney that the proceedings against him should bo discontinued. At the instance of the prosecuting attorney the court gave the following instructions: “ 1. Criminal prosecutions in the State of Kansas, in the district courts of the state, arc under the control of a county attorney, who must be a member of the legal profession, and who personally conducts the cause on the trial, and in every stage of it before the court this officer is the representative of the public; and such assisting counsel as he may have are held in the same capacity. “2. It is the duty of the prosecuting officer in his respective county to determine not only whether criminal parties can be convicted, if prosecuted, but likewise whether or not the public interest requires the prosecution to be' earned on; and there are circumstances in which the question, whether or not a prosecution shall be carried on against a particular person, addresses itself to the discretion of the prosecuting. officer, even though there are no legal doubts concerning technical guilt of an offender. And in this state the prosecuting officer, upon filing in the court a written statement showing reasons for not prosecuting a particular person charged with an offense, in the discretion of the court such officer may be allowed no further to prosecute the person charged for such offense, or the prosecution in such case be dismissed. On the other hand, if a prosecuting officer should neglect or fail to prosecute an offender upon proper affidavit filed of the commission of crime, the district judge may compel by attachment, fine or imprisonment, the prosecuting attorney to fulfill his duty in such prosecution.” The appellant asked a large number of instructions, many of which were refused. Some of those refused arc set forth and discussed in appellant’s brief, and among those so asked and refused, and commented upon by the court, is the following : “40. That in regard to verbal admissions of the defendant, they are to be received and considered with great caution, for besides the danger of mistakes from misapprehension of the witness, the misuse of the words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is oppressed by the calamity of his situation, and he is often influenced by motives of hope or fear, to make an undue admission; the zeal, too, which so generally prevails to detect offenses, especially in aggravated cases, and the strong disposition in the person engaged in the pursuit of evidence, to rely on slight grounds of suspicion which are exaggerated into sufficient proof, together with the character of the person necessarily called as a witness in secret and atrocious crimes, all tend to impair the value of this kind of evidence.” The jury returned a vei’dict of guilty of murder in the first degree, and the defendant was sentenced to suffer the penalty of death. From this judgment he appeals to this court, and brings the record here for review. 1. The court erred in overruling the challenge of the defendant to persons summoned as jurors, to which defendant excepted. The defendant was entitled to twelve, and the state to six peremptory challenges. Gen. Stat., 852, §§ 198, 199. The court below wrongfully overruled challenges of defendant, for cause, to three candidates for jurymen, Anderson, Maghee, and Newton. Each of them showed that he had an impression, or had formed a belief or opinion upon the question of appellant’s guilt or innocence. Each of these candidates was duly challenged for cause, and the challenges were overruled by the court, and the defendant challenged said candidates peremptorily and exhausted his other nine peremptory challenges. His peremptory challenges were thus practically reduced to nine. The question was fairly raised for this court whether the challenges for cause were properly overruled. (1 Kas., 472, 473.) It is made by statute a ground of challenge for cause, that a person summoned as a juror, has “formed or expressed” an opinion on the issue or “any material fact to be tried.” Grim. Code, § 205, Gen. Stat., 853. Waterman, in his work on new. trials, lays it down as an invariable rule, that “there should be an entire absence, not only of all ill-will and prejudice, but also of any, even the slightest bias.” He says: “This proposition is quite plain, and it is universally acknowledged.” 2 Gr. & Wat. on New Tr., 367. The general proposition of law contained in our statute is pretty generally recognized in decided cases in other states. Goodwin v. Blackley, 4 Ind., 438; 14 S. and R., 292; 1 Den., 281; 3 id., 121; 2 Gr. & Wat. New Tr., 366 to 375; Mo-Lean v. State, 10 Yerg., 241; Trumble v. State, 2 Greene, (Iowa,) 404; 7 Cow., 121; 1 Johns.,. 310; 9 Pick., 499; 6 ■Cal., 227; 8 id., 359. In the case at bar it may be said that, in the first place, the distinction attempted to be drawn by the court between an opinion and an impréssion requiring evidence for its removal, is extremely technical, fine-drawn, unfair, and seems not to be treated with very great respect by the text-writers. Waterman says: “Such a distinction seems to be rather nominal than real.” -2 Gr. & Wat. New Tr., 378. The court seems to have been misled by that- class of .cases of which Baldwin v. State, 12 Mo., 223, is a type—cases founded upon a statute expressly- providing that, ■“ if the opinion is founded only on a rumor, and not such as to prejudice or bias the mind of the juror, he may be sworn.” This provision was in our criminal code of 1859; but in our present statute this clause is entirely left off, leaving the provision that forming or expressing an opinion is a disqualification, absolute and unqualified. Under the former statute (of 1859) this court held that it was the court that should be satisfied that the opinion, founded on rumor, did not prejudice, etc., and not the person summoned as a juror. This decision evinces a disposition on the part of this court to restrict, .rather than - enlarge, the rule, even under that statute. And the legislature having struck out these qualifying provisions, leaving the ground- fér challenge simply and unqualifiedly the forming or expressing of an opinion as to the issue, or any material fact in the case, it is apprehended that this court will not now hesitate, in a capital case, where the candidate had formed and expressed an opinion which it would require evidence to remove, to hold that he was disqualified to sit as a juror in the case. 2. It was error to allow witnesses for the prosecution, whose names were not indorsed upon the information, to be sworn, under defendant’s objection. The requirement of the Statute is that the prosecuting attorney shall “ indorse thereon (on the information) the names of the witnesses known to him at the time of filing the same.” See 1 G. Greene, 316; 4 id.,. 190. In the case at bar, where over forty witnesses were-examined for the prosecution, and the names of only two appeared upon the information, there is a call if ever for an enforcement of the rule laid down by the statute. The witnesses thus objected to were the most important examined. 3. The court erred in admitting in evidence the entry in the book marked “Kansas Tribune,” as a dying declaration of Ruth. The evidence of the physicians, that Ruth could not have written while suffering under the symptoms described, is not contradicted. This, taken in connection with the fact as to the time required to write the document, uncontroverted, and it leaves the case with absolutely no evidence whatever that Ruth actually wrote, but with conclusive evidence that he did' not write, the matter, so as to make it admissible in evidence as a dying declaration. The contents of the paper having been admitted as a dying declaration, and for the purposes of a dying declaration—that is, to get before the jury the words contained in the memorandum-book as the dying statement of Ruth—the record must show it to be competent as such, or there is error. In MacDougall v. McGuire, 35 Cal., 274, it was decided that, “Where testimony is ruled out by the court for one purpose,, but admitted for another, the jury can • only consider it-for the purposes for which it was received.” Now, if the entry is tested by -the authorities it will be found that-it is nota “dying./declaration,” and "that it was' inadmissible-as such: 1 Phil. Ev., 5,15, 211, 212, 289, 290, 293; 2 Rus. on Crimes, 752; 31 Ind., 198. The authorities all assume-that the declaration, to become competent evidence, is made-in the hearing of some one present at the time of its delivery, who can swear as to what was said, the circumstances under which the declaration was made, the state of illness, and the competency of the deceased to testify, if alive, and-as to-his manner and deportment The situation of the .party—the circumstances under which the declaration is made, are the very'matters that take the place of the oath. Without a showing of these circumstances there is no showing of that which is equivalent to and takes the place of an oath. Our constitution and laws give the person accused of crime the right to confront the witnesses, and thus, impliedly, the right to cross-examine them. The admission of dying declarations is an infringement upon these rights, and but for the fact that the defendant has a right to be confronted with' the witnesses who testify to the fact of the actual making of the declaration, and the circumstances which take the place of and are equivalent to an oath, the admission of such declarations in evidence would be contrary to these constitutional provisions and an infringement upon these constitutional rights. It is on this very ground that this class of evidence is held to be admissible at all: 1 Phil. Ev., 296, note 3. The defendant cannot be deprived, not only of the opportunity to cross-examine the deceased, who makes the declaration, and also the witnesses who testify to the fact that the statement was actually made, and to the circumstances under which it was made, without infringing upon his constitutional rights. Certain matters of competency, doubtless, may be shown by the declaration itself, but not the preliminary facts upon which is based the right of the court to examine the declaration for the internal evidence of its competency. Before the judge could examine the declaration at all the evidence ought to have shown, conclusively, that the declaration was a part of the res gestee. 1 Phil. Ev., 298; 16 Ala., 672. Declarations,-to become a part of the res gestee, must have been made at the time of the act done, which they are supposed to characterize. This doctrine is fully recognized by this court in The State v. Montgomery, 8 ICas., 351; also, see 1 Park. Cr. R., 556; 24- Pick.; 242. To prove the declaration part of the res gestee in the very'nature of things resort could not be had to the declaration itself. There is no testimony showing when the entry was written; by whom it was written; and if by Ruth, his feelings, purposes, thoughts, or words at the time of writing, are not shown or attempted to be shown by' any one who was present and had the means of knowledge. In fact, no time anterior to the death of Ruth is fixed by the testimony when the entry -in question was not in the memorandum booh. The evidence shows that it was not discovered until long after death had actually occurred, and after the dead body was discovered. The court was left to conjecture at what time prior to its discovery the entry was actually made. To entitle the declaration in question to be read in evidence as a dying declaration, as was done in this case, in addition to the facts necessary to be shown to make, the act of writing a part of the res gestee, the record should show that the declaration was “made under the present apprehension of impending death;” made in extremity, when the party is at the-point of death, and every hope in this world is gone; made by the deceased “when he was fully conscious of the fact that he would surely die, not as a thing of surmise and conjecture or apprehension, but as a fixed and inevitable fact.” Any hope of life, however slight, in the mind of the declarant destroys the competency of the evidence as a dying declaration. On this point the authorities seem to be unanimous. 2 Russell'on Cr., 753; 1 Greenl. Ev., § 123; 1 Phil. Ev., 289; 2 Park. Cr. R., 246; 8 Ohio St., 131; 31 Ind., 147. The memorandum is: “The doctor—I mean Dr. Medlicott—gave me a quinine powder Wednesday night, April 26th.” This is the narrative of a past transaction on its face. The narrative is certainly no part of the res gestee of the administration of tlie powder. No evidence dehors this memorandum is given showing the declaration to have been made at the time or near the time of the actual giving by the doctor or taking by the declarant of this powder. This statement in the declaration clearly has its force by itself as án abstract statement, detached from the then passing transactions, “ depending for its effect upon the credit of the person making it,” and comes directly within the definition of hearsay testimony : 9 Cush., 36. It does not prove that a powder was given him, nor is it evidence as to who gave him the powder, for the declaration as to who gave the powder is in the past tense. It is the narration of an event already past, and therefore not a part of the res gestee. The entry itself does not on its face show when it was made. But if the entry contained a date it would prove nothing. The fact as to when it was actually made would have to be proved dehors the writing. But the entry has no date. The entry reads as follows:. “The doctor gave me a quinine powder Wednesday night, April 26th.” The year is not given. If it was, it would be no proof in the case. There is no evidence fixing the year anywhere -in the case. It will be remembered in this relation that there was no time before the death of Ruth when it was shown that the entry was not in the book. The close of the entry is: “The clock has just struck eleven, and I took the medicine about 10.30 p. M.” Here again no year is given. Besides, the entry on its face as to the “effects” of the “medicine” are mere matters of the declarant’s opinion—not competent on that point—it being a question properly resting upon medical testimony in all cases. The entry is: “The doctor gave me a quinine powder Wednesday night, April 26th. The effects are these: I have a terrible,” etc. This is an opinion squarely expressed that the effects of-the quinine‘powder are as he describes the symptoms. Were the deceased alive and put upon the stand he would not have been competent, so far as the record shows, to give the opinion. 'Every person' is not presumed to be competent to give in evidence an opinion as to the effects of a medicine on the human system. This question of competency in the witness was one addressing itself peculiarly to the judge as one of the preliminary facts to be proven before the evidence is admissible to the jury. The entry on its face shows that all hope of life was not gone. It .shows that death was problematical only—doubtful—not certain, at all events. The language is: “I write this so that if I never see you again you may have my body examined and see what the trouble is.” The writing carries the idea simply that if he should never see Mrs. Ruth again—an ■expression that implies merely doubt and futurity—then that the statement may bo useful in the discovery of the reason. It says nothing about death; the words are, “if I never see yon again.” It requires to be aided by inference,, to make it refer to the death of Ruth. That he believed that deatli was surely pending and imminent when he wrote, is a fact that cannot, even by inference, be supplied. The entry is vague and indefinite as a reference to the cause of death. It requires inference to aid it, in that it says the doctor gave him a quinine powder. There is a large amount-of testimony in the case that quinine might have had much to' do with causing the death of Ruth. Quinine is not commonly understood to be a poison. The theory of the prosecution is, that the death was caused by poison. As a reference to the cause of death on this theory, the declaration requires to be aided by inference, or supposition, that the word quinine meant poison, atropine and morphine. If it was merely a quinine powder that caused the death, the declaration does not tend to criminate the defendant. This entry is shown by the record to have been admitted to the jury as a dying declaration made in extremis. This was equivalent to a charge to the jury that the statement was made without a. hope in -this'world, and was’to be receivedby them and considered as though given under the solemnities of an oath, as though the deceased had appeared.personally upon the stand and made it before the jury. If admitted to’ have any less effect, then it should have been accompanied by1 pertinent instructions. The decision of the judge on the admission of dying declarations, “as in the case of admitting facts, words or acts, as a part of the res gestee is reviewable. 9 Cush., 36; 1 Kas., 496. It is a rule prescribed by statute that the court “must state”‘to the'jury, “all matters of law which are necessary for' their information in giving their verdict.” Gen. Stat., 858, § 236. "With reference to the point at issue, the court was asked to charge as follows: “ 22. "When the statements of a person are offered in evidence, as his dying declarations,- the proof must clearly show that the declarant was in fact at the very point of death, and that he was fully conscious of that fact, not as a thing of surmise and conjecture, or apprehension, but as a fixed and inevitable fact. It is not that these facts and circumstances create a probability, though a strong one, and if therefore, assuming all the faets to be true, which the evidence tends to establish, they may yet be accounted for on any hypothesis which does not include the guilt of the accused, then the proof fails to make out the charge. It is essential therefore that the circumstances taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis.” The court here was asked, directly, to give a charge touching upon the bearing of fads that give the class of evidence under consideration, weight—the facts, constituting the circumstances under which the declaration was made. It was error for the court to refuse to give the first clause of this charge—a striking out of which, destroyed the application of the whole charge to the evidence intended, for the facts and circumstances are the very essence of the testimony as testimony. The fact that the same circumstances are the basis for the admissibility of the evidence does not aid the matter; nor was the error cured by giving the last clause quoted above, for, without thq first above-quoted clause, the latter would be applied to other and very different “ facts and circumstances ” than those intended. The court was also asked to charge, l’elative -to this point in issue, as follows: . “ 50. The jury are instructed that if from the letter of Ruth, found in the book marked ‘ Kansas Tribune/ you can reasonably draw the conclusion that Ruth committed suicide,you must acquit the defendant. “ 52. The prosecution is bound by the statement in the letter of Ruth, found in the memorandum book ‘Kansas Tribune/ as to the kind of powder the deceased received from the defendant.” Both of which the court refused to give. Both of the charges asked and refused are good law, applicable to the case. They have a direct bearing upon the weight to be given to the evidence. The latter is good because there is an utter absence of proof showing that Euth referred, in the writing, to any other powder than what he named—quinine— or meant any other. The fact that he did mean quinine and nothing else, is supported by the testimony dehors the statement that quinine powders were actually left by the defendant with deceased, to be taken by him—were present in the room when he died. And the fact that poison was found by the analysis to be in his stomach, (if that fact exists, which is not conceded,) does not support the idea that the prosecution have shown what Euth stated to be quinine, was actually something else, because there is no proof whatever that the statement of Euth was made after he had taken the poison that was found in his stomach, nor that that poison was what Euth took as quinine. The failure of the proof showing when the writing was made, leaves the law applicable to the case as requested to be given in No. 52 of the charges asked by defendant and refused. 4. The court erred in its rulings in admitting and rejecting the testimony of experts. [Fourteen pages of counsels’ brief are devoted to a statement and discussion of the testimony given by the medical .witnesses, and similar testimony ^offered and rejected, and of the law governing the admissibility of testimony involving the opinions or judgment of witnesses upon questions of medicine, science, skill, etc. Being;unable to abbreviate it, the reporter is obliged to omit it. See note, ante, p. 258.] 5. The coui’t erred in the instructions given and refused regarding the testimony of the experts, and the cause of Euth’s death. The appellant asked the court to charge as follows: “ 32. The jury, in considering whether Isaac M. Euth came to his death by poison, cannot consider any relation whatever the defendant may have had with the wife of the deceased. “ 33. And the jury, in considering as to the cause of the death of Isaac M. Ruth, must not consider or allow the motives of the defendant with Ruth’s wife to influence their decision on that point.” These charges the court refused to give, but on request of the prosecution, charged that— “The medical testimony alone is not all the jury may take into consideration in determining whether Ruth died from the effects of poison administered by the prisoner,- but the jury may take all the circuihstanees in the case, including the acts and words and writings of the defendant, in determining that question.” This implies that the jury may consider the “medical testimony” in determining whether Ruth died “from poison administered by the prisoner,” and it assumes that the poison found through the “medical testimony” was “administered by the prisoner.” This assumes a fact not proved. There is no “medical testimony” in the' case that in the slightest degree bears upon the question who administered the poison (if poison was administered,) nor that the prisoner did, nor that in any way connects the prisoner with the death of Ruth, or with the substances found within his body. This was error. The charge is bad, on the ground that it treats as one inseparable question two distinct propositions, the cause of Ruth’s death and the administration of poison by the defendant, and declares that the medical testimony bears upon this joint question. It was error also to refuse the charges (Nos. 32 and 33) asked by appellant. By these charges the defendant sought to have the court instruct the jury to consider the question of the cause of death separately from the other questions that might arise. In the nature of things a consideration of defendant’s relations with Mrs. Ruth could not throw light upon the question whether poison was found in Ruth’s stomach or not. These charges were requested on the assumption that an analysis of tire body of Ruth ought to have been made and had actually been made, and that such a course was requisite to determine with certainty the cause of death. The assumption is one shown to be a true and safe one by the testimony. The witnesses for the prosecution, without the analysis, were unable to say that poison caused the death. The court also erred in its general charge to the jury. Paragraph 61 of such general charge, relating to the discovering the existence of vegetable poisons, is not law, and was clearly prejudicial to appellant. (24 Cal., 14.) The first clause of said paragraph is a direct charge of facts. It was error to give such an instruction as law in the case, which the jury are bound to follow; and its fatal effect is not cured by a proper charge of the law in-the case in other parts of the charge. 6. A person was brought, by the prosecution, from out the jail of Douglas county, and placed on the witness stand, under the name of Henry Johnson. ' This witness is shown by the record to have been incarcerated for grand larceny and burglary. He was placed in the same cell with defendant. He alleges that he gained the confidence of defendant. The pertinency of this is apparent when the witness swears that he gained this confidence by deceit and lying, and with intent, from the beginning, to betray the defendant. He partook of the bounty of defendant, as he swears, and then divulges the results of his companionship by day, and his vigils by night, against him. This witness, from his own evidence, as a companion, proved prolific in suggestions and plots, and, as a spy, he surely shows himself a facile tool of the prosecution—being under its direction completely, being liberated, without bail, as necessity required for his investigations. That this servile person was induced to perform the work, the record shows he did, for the prosecution, with the belief at least, that he was thereby earning exemption from a trial for the crimes he was charged with, is a fact that no one can read this record without recognizing and believing. Testimony procured by such means is very rarely admitted in a court of justice. Its admission, under all the safeguards the law can place around it, is abhorrent to the finer sentiments of mankind, and to the better notions of public policy. A court, determining to admit the testimony of such a witness, under the circumstances of this case, ought to have rigidly restricted the same to the issuable facts in the case—ought not to have allowed the** witness to state any matter not absolutely arid unqualifiedly •competent in the issue beyond any doubt, and ought to have accompanied the same with appropriate instructions. In singular contrast to these well-recognized and reasonable •doctrines the prosecution was allowed, if not encouraged, by the court, to show by this witness, from incomplete fragments ■of conversation had with defendant, matters that had no connection with the case on trial, by any possible construction. But the mischief in the case of the witness Johnson did not .stop with the admission of his testimony. It was not (seemingly) enough that his story should go to the jury for what it was, unaided, worth; but the prosecution conceived the necessity of bracing it up with charges from the court as to its effect-. They asked, and the court gave, under the objections of defendant, the following, among the charges asked by the prosecution: ' “ 3. In the prosecution of the public business it is the right •of the prosecuting or county attorney to call as a witness any man in the county jail, to employ him if he so desires as a spy •or detective; and the fact that such witness is charged witli ■crime is no evidence against such witness’ character for truth :and veracity, and his testimony is to be judged of as that of any <other competent mtness” , The “ear marks” on witness Johnson, his employment by the prosecution while in jail as a spy, he being-charged with crime, are so prominent that there is no mistaking that this charge means him alone. It is applicable to no other witness. Applied to him, this charge was error. His testimony, :in part at least, tended to establish the attempt to commit by ■defendant, together with the witness, the crimes of arson and jail-breaking. From his evidence this witness proved him.self an accpnvplice in these crimes. He was to be the principal actor in their commission. Plis evidence then as to these matters, if competent at all, was not “to be judged of as that •of any other competent witness.” It is a rule that a party to an action may fortify his case by pertinent charges referring to particular parts of evidence, or to particular witnesses. This rule was sought to be applied by defendant to the same witness, Johnson. The defendant asked the court to charge as follows: “If the jury believe, from all the evidence, that the wit^ ness Henry Johnson has willfully and knowingly testified falsely in respect to any material fact, then it is their duty to disregard the whole of his testimony. The presumption that the witness will declare the truth ceases as soon as it manifestly appears that he is capable of perjury. “If the jury believe from the evidence that the witness Johnson has been successfully impeached, they must put no reliance in his statements that have for their support his own evidence alone.” Instead of giving the law in a manner that it might be applied directly to this witness, the court in his general charge so framed his instructions as to make this law applicable mainly if not solely to the. defendant, who was put upon the stand in his own behalf. The charge reads: “The evidence of the person on trial, given in his own behalf, under and by virtue of the statute laws of this state, should be subjected to the closest scrutiny, for it is hardly to be conceived that a stronger incentive to commit peijury exists than that which would induce one actually guilty of an infamous crime to shield himself from the penalties of the law, especially when the punishment was of a very serious character. In such a case the danger of detection and the risk of temporal punishment would have little effect. A general rule, applicable to all witnesses, is, the presumption that a witness will declare the truth ceases as soon as it manifestly appears that he is capable of peijury; and when a witness knowingly testifies to that which is false in a material matter, it is the duty of the jury to disregard the whole of his testimony, for then the maxim, ‘ False in one thing, false in all things/ applies.” This was practically a refusal by the court to apply this law to the testimony of the witness Johnson, but applying it in the strongest terms to the defendant; at the same time couching the language in such technicalities as to make it, in case of necessity, applicable to all witnesses, yet by its relation as to what preceded and as to what followed, leading the jury to apply it to the testimony of defendant alone. The only question is, whether the court has, in a manner required by -the statute and by his duty, given the law upon this question. The rule is that a court is not bound to charge the jury upon a proposition of law involved in the case, which in his charge he has once fairly submitted to them. It is insisted in this case that this law asked has not been fairly given to the jury. 7-. Another important fact showing the inconclusiveness of the testimony, that the crime of murder-was committed, is this: the traces of disease were discovered six weeks after the burial of the body. The lungs were very much congested, and this alone was enough to produce death. ■If a poisonous dose' of morphine was taken, the presence of. quinine powders, in. medicinal doses, and morphine powders (similar in appearance) in poisonous doses (for external application,) in the same box in the stand-drawer in Ruth’s room, as clearly shown by the testimony, taken with the fact that men are liable to make mistakes, leads to a theory of the cause of death more consonant with the other facts in the case, more rational, more in the nature of things, than is the theory of murder. The writing of the “declaration”—the omission to call for aid—can as well be accounted for on the theory of mistake as on that of crime. This theory of mistake accounts for the statement in the “declaration” that it was a quinine powder taken. It as well accounts for the doubt expressed iñ thq declaration as to whether the declarant would ever 'see Mrs. Ruth again. The presence of the powders—Ruth’s previous habit of taking, and then present intent to take, a quinine powder out of the very drawer where were poisonous doses of morphine, wrapped in similar papers in the same way as quinine powders, far more surely prove a taking 'of poison by mistake, than the circumstance that the defendant played chess with him during that evening proves that a crime was committed. That Ruth in the declaration, intended tó carry the idea that defendant, on that evening, actually gave him a quinine powder, is not reasonable. That would be the form of expression natural, in case he meant merely that he had talcen one of those prescribed—one of those from the drawer. The actual offering by defendant of another quinine powder from those already in the drawer while those were on hand, would have been a proceeding unreasonable in the nature of things, unusual in the practice of physicians—and calculated immediately to arouse inquiry in Ruth’s mind. This theory cannot bo entertained in the presence of another so much more consistent and reasonable, viz., the theory of mistake. This' and the theory of the cumulative effects of quinine completely explain every fact adduced by the prosecution to support the theory 'of Ruth’s murder. All the evidence could be reconciled, without, the presumption that the defendant was guilty. It Avas the duty of the jxxry to gix’c full Aveight to the presumption that he Avas innocent. 8. The novel charges requested by the prosecuting officer .as a judiciál indorsement of his conduct, as they had been given by the court as matters of laxxr Avhich the jury xxrere bound to consider as having a bearing upon the question of .the defendant’s guilt or innocence, as they contain manifest ■error, the possible effect of the latter ought to have been cleared away by the granting of a new trial. Did the charges relate to the testimony of the attorney as a Axdtness in the case, the proceeding xvoxxld be less striking, for he was on the stand no less than half a dozen times; but they do not. The asking of charges from the cdurt sustaining the course pursued by any attorney is a proceeding xxnknoxvn to. the history of jurisprudence in this or any other country. The consideration that the life of a human being is at stake, it is believed will not be lost sight of, and Avill have its proper bearing in the determination of the question xxdxcther a new trial ought to have been granted. I.. With rcfei’cnce to challenge of jurors, a man can only be challenged when he has formed or expressed an opinion on the issue, on some material facts. The record plainly shows that the jurors had. simply, formed an impression on newspaper articles, and nothing akin to a deliberate opinion on the issue or-on any material fact. 4 Parker Cr. E., 71; 53 111., 311. But the jurors were challenged peremptorily by the defendant, and no attempt was made by defendant to challenge more than nine additional jurors, and he cannot now complain that he did not have three more challenges, for he did. not demand them at the trial. In any view of the matter it is but purely technical, and could not possibly have affected the substantial rights of the defendant. Crina. Code, § 293, p. 867, Gen. Stat. 2. The objection that the names of the witnesses were, not on the information, is effectually .disposed of by §293 Crim. Code. By no possibility could the defendant’s substantial rights be affected by the fact of all the names not being on the information. The prosecuting attorney is required to indorse the names of other witnesses “at such time as the court may prescribe.” The court made no order on the prosecuting attorney in this respect; but the question is settled by State v. Diclcsonj 6 Kas., 209. 3. Whether the written statement in the book marked “Kansas Tribune” was a dying declaration was a question in the first place for the presiding judge, “it being his province, and not that of the jury, to determine that, question.”. 1 Greenl. Ev., §§160, 161a, 1616, 162; 16 Ala., 672; 11 Georgia, 353. These authorities abundantly show what it hardly required authority to establish, the proposition that whether or not the declaration was made under a sense of impending death was a fact which might be established by circumstantial as well as direct evidence. In truth, it seems that there can be none other than circumstantial evidence to establish this fact. In the case at bar what are the circumstances? Euth was a healthy, happy, contented man as late as nine or ten o’clock of the night of 26th April, 1871; the next morning as early as eight o’clock he was found in his bed with the bloody froth or serum issuing from his mouth—striking evidence of sudden death by poison. The writing was then found near his dead body, in which he says the defendant gave him the medicine on Wednesday night, 26th April, and describes the symptoms, directs that his body may be examined, says his last thoughts were of his wife, and prays to meet her in heaven. Can any reasonable man view the testimony that was adduced in this case before the declaration was permitted in evidence, and come to any other conclusion than that the letter was written the night of his death—was concluded when no hope remained to him? That species of testimony which universally convinces the intelligent mind of the fact alleged ought to be good evidence. 7 Iowa, 288. In Campbell v. The State, 11 Geo., 353, the court used this language: “ Whom the evidence is contradictory as to whether or not the declarations were made with the consciousness that the declarant was in articulo mortis, the court will not interfere with the verdict of the jury and grant a new trial, especially when it is satisfied that the finding was warranted by the proof.” The court will not fail to notice that Ruth’s written declaration was not permitted in evidence till all the facts above referred to were in evidence, and the analysis of the vital organs and bladder of deceased had been shown,' so that the court had all the circumstances before it when the paper was admitted. It was admissible as res gesta. ■ 2 Parker, 84; 8 Wallace, 397. , 4. A scientific witness having been placed on the stand by the defendant and asked questions of a scientific character, on cross-examination may be asked any question which may develop the extent of his scientific acqdirements. This is the case in the matter of the cross-examination of Ur. Rice. 12 N. Y., 361; 7 Kas., 143. In Teffb v. Wilcox, 6 Kas., 58, this court distinctly and carefully makes the point that the éxperts were called and testified as such simply “ without knowing the particulars of the case from personal observation,” and gave their opinions as to matters of fact concerning and assumed to exist in and constituting that particular case. Surely no two cases could be further apart; in this case witness Fuller had personally examined the lungs, heart, stomach, intestines, kidneys, liver and brain of Ruth, and was a scientific man; in the Tefft case the witness knew nothing from personal observation, and testified to facts constituting the case. "Wharton & Stille, § 94, and note; 1 Greenl., § 440. In this case the witness had heard all the testimony concerning the chemical analysis, and was competent to give his opinion thereon as to cause of Ruth’s death. 1 Wharton Cr. Law §§ 45, 46, and note “a.” 5. The sixth head of appellant’s' brief is entirely taken up on the witness Johnson; "that this witness was competent is beyond all question, and when we consider that his testimony is corroborated by every act, word and letter of the prisoner, we are not surprised at the bitterness exhibited toward him, and the anxiety to break him down. He stood before the court with all the facts surrounding him plainly before the jury. It was the sole pleasure and power of the jury to believe or disbelieve him, and the attempt to compel the court to make him infamous by instruction to the jury was not only not authorized by law, but in direct violation of every known principle in the trial of cases in courts of justice. This man had the right to become, as he did, the friend of the state, in the unearthing • of crime, and he deserves commendation and praise instead of curses.