to do with the case of Austin Pulpus, who was separately tried. This defendant and George Anderson, on the day preceding the homicide, were engaged as laborers in ditching, when some difficulty occurred between them, and Anderson struck him on the head with a spade, inflicting a bad scalp wound. After the blow, Anderson threatened to kill Austin Pulpus. Only these two were engaged in this trouble. Austin Pulpus went to a doctor and had his head shaved and wound sewed up, and there is no evidence to show a conspiracy between Austin Pulpus, Alex Pulpus, Arthur Orr, Isaiah Gillespie, Jesse Wilson, and Fee Wilson to perpetrate the homicide, but the evidence of conspiracy, if there be any such, is exceedingly unsatisfactory. On the night of the day when the blow with the spade was inflicted on the defendant, he armed himself with his father's pistol, as he says, for the purpose of being in condition to defend himself if Anderson undertook to carry out his threat.

All of the persons mentioned, including defendant, were at Joe Randle's house on the next morning, which was the day on which the homicide was committed. The most of them had rabbit sticks, and say they hunted rabbits as they came through the fields. George Anderson was at work there, and the defense showed by testimony that they saw him and spoke to him. All these parties ditched for Joe Randle on the afternoon when the first difficulty occurred, and it is said, on the part of the defense, that they wanted Joe Randle to go down to the ditch to see about measuring up the work, and so Randle and Isaiah Gillespie went on the road, and the others through the fields. The measuring was done at the ditch, and Randle was the first to leave the ditch, going home. Soon after, Austin Pulpus, on account of his head paining him, started home, and with him went Alex Pulpus, Arthur Orr, and Fee Wilson. All started home by the road which went by Randle's house, but Wilson stopped, before the point where the road passed Randle's house, at another house to get a drink of water. Orr and Alex Pulpus, going in advance of Austin, had passed George Anderson when Austin came up.

A witness was permitted to state, over objection, that, in answer to his question to Fee Wilson whether they were going to report Anderson for the blow with the spade, he said, "No," they were "going to get him." This was in the absence of defendant or any of the party, and this was error.

There was nothing to show that the presence of the party was other than accidental. On the appearance at Joe Randle's house, when the killing occurred, the state offered evidence, somewhat conflicting, to the effect that Austin went up to Anderson and asked him if he was done with the row, to which Anderson answered, "Yes," and that Austin then threw a club stick at him twice, and

that then Anderson threw a frow at Austin, when Austin shot him twice, first in the knee, and then in the back. Another witness for the state testifies that Austin first threw a stick, and next a brick, at Anderson, and then Anderson threw a frow at him, and that both parties were standing up when the shooting was done.

The testimony for the defense is to the effect that Austin, as he passed Anderson, who was working at a crib with the frow, was hailed by Anderson, who said he wanted to settle that little rucus, when Austin said he thought it was settled, to which Anderson replied, "I meant to kill you, and, God damn you, I am going to kill you," when defendant turned to go away, and Anderson threw the frow, striking him in the back and knocking him down, and that, while he was down, Anderson advanced on him with an ax raised to strike, and Austin, while down, and while Anderson was so advancing, shot him twice. There seems no doubt that Austin was struck in the back with the frow, and there is no doubt either that both the pistol balls ranged upwards, one striking just above the kneecap and going up into the groin, and the other striking at the base of the spinal vertebræ and going up inside of the body.

There is conflict in the evidence as to the location of the ax and frow and the hats of the men immediately after the killing. It is perfectly plain that the wounds from the pistol could not have been inflicted by the man who used the pistol, if he had been standing up.

Under this presentation of facts, the court gave the following instruction at the instance of the state: "The court instructs the jury that, if they believe from the evidence in this case, beyond a reasonable doubt, that Austin Pulpus was hunting George Anderson to kill him, armed with a deadly weapon provided for that purpose, and that, when he found Anderson, he provoked a difficulty with Anderson, or was the aggressor in the difficulty in which he killed Anderson, then he is guilty of murder, even though he killed Anderson in self-defense, and the jury should so find." We think, on the evidence in this record, the granting of this instruction was fatal error. Lofton v. State, 79 Miss. 723, 31 South. 420, and the other citations in the briefs for appellant. It must be quite an overwhelming case for the state on the facts to keep this instruction from being reversible error. It wholly excludes any consideration of the doctrine of locus penitentiæ, even where, as here, there is evidence of an aban donment of the conflict. It is not strictly correct as written. One may provide himself with a deadly weapon and hunt another, with design to kill him with it, and provoke and be the aggressor in the encounter in which he kills the other, and still, in the progress of it, not be denied the right of selfdefense, if the killing be not pursuant to the original purpose to kill. If he abandons the

conflict, and is fleeing from it in good faith, and not for vantage, he may defend himself from threatened death or great bodily harm. Lofton v. State, 79 Miss. 734, 31 South. 420. We think it was error to permit the state to show that Arthur Orr, who was jointly indicted with appellant, and was under bond for appearance, was out of the state, and not present pursuant to his bond. People v. Stanley, 47 Cal. 114, 17 Am. Rep. 401, nd the other citations of counsel's brief. Reversed and remanded.

(82 Miss. 462)

CLARKE v. PIERCE.

(Supreme Court of Mississippi. March 31. 1903.)

TRIAL-REQUESTED INSTRUCTIONS-SUBMISSION AFTER RETIREMENT OF JURY.

1. Under Rev. Code 1892, § 732, requiring the judge, on request of either party in writing, to instruct the jury on the principles of law applicable to the case, where a proper additional charge in writing was requested by plaintiff on the jury's requesting additional instructions after submission of the cause, it was error to re fuse such instruction on the ground that it was not asked until after the jury had retired.

Appeal from Circuit Court, Lauderdale County; G. Q. Hall, Judge.

Replevin by J. W. Clarke against John Pierce to recover a horse. From a judgment in favor of defendant, plaintiff appeals. Reversed.

On the trial of the case, and after it had been submitted to the jury before verdict, they requested further instructions, which were objected to by defendant. Plaintiff then requested an instruction in writing, which was refused by the court because asked for after the jury had retired.

W. T. Houston, for appellant. F. V. Brahan, for appellee.

WHITFIELD, C. J. In respect to the right and duty of the court to give further instructions to the jury after they have retired, the principle is stated to be this in 2 Enc. Pl. & Prac. 283-285, inclusive: That the court may give the jury any instruction necessary to the accomplishment of justice in the case, at any time before the verdict is received, of its own motion; and, secondly, upon request of the jury; and, thirdly, that where the jury requests further instructions it is "not only the right, but the duty, of the court to reinstruct upon any question of law, arising from the facts proven, on which they say they are in doubt"; and, further, "that this practice is to be commended, since its results tend to a correct and rapid administration of justice"; and, lastly, it is there stated that by the weight of authority it is held that, although the court may have given further instructions at the request of the jury, it should also give additional in

structions, by way of explanation or modification, if requested by one of the parties. In note 1 on page 283 of said volume the rule in Mississippi is set out. The cases of Duncan v. State, 49 Miss. 331, Taylor v. Manley, 6 Smedes & M. 305, and Randolph v. Govan, 14 Smedes & M. 9, are referred to. In Duncan's Case no request for instructions was made by either party, written or oral. In Taylor v. Manley the court had adjourned for the day, and the judge, in the absence of both parties, and without their consent, at the request of the jury, gave them a charge. Under our practice, this was error, of course. In the case of Randolph v. Govan there was no request by either party, but a request again by the jury. In our state, under Rev. Code 1892, § 732, the judge can only instruct the jury upon the principles of law applicable to the case at the request, in writing, of either party. Applying the principles which we have cited from the Encyclopædia of Pleading & Practice, the law in this state, under our practice, is that it is not only the right, but the duty, of the court, where the ends of justice so require, to give the jury, at any time before the verdict is received, any further instructions, which correctly state the law, that may be requested by either party in writing. The principles which we have quoted apply fully in this state, provided only the condition prescribed by our statute be complied with; that is to say, provided the instructions be requested by either of the parties in writing. If so requested in writing by either party, and if the instructions be correct, the objection of the other party is immaterial. The court sits to give the jury the law as it really is, as applied to the facts of the case; and it is not within the power of either party, by objecting, to prevent the court from giving such further charges, if they be correct, and if they be requested in writing by the other side. The additional charge asked in this case, in writing, by the plaintiff, was correct, on the facts of the case, and the court erred in not granting it.

Reversed and remanded.

(82 Miss. 421)

WRIGHT v. STATE. (Supreme Court of Mississippi. April 6, 1903.) CRIMINAL LAW-OBJECTIONS TO EVIDENCE -SUFFICIENCY.

1. A conviction will not be reversed for error in admitting oral testimony of a confession by defendant, when the only confession made was in writing, where it appears that both on the trial of the issue as to the admissibility of the confession by the court alone, and on the subsequent examination before the jury, defendant made no objection of any kind until after all the witnesses had been examined when he merely moved "that all the testimony taken by the state be excluded."

Appeal from Circuit Court, Warren County; Geo. Anderson, Judge.

be predicated upon his failure or refusal so to do.

was handed to him, and had access to the mail box in which the same was placed. Two days afterwards, when the package was missed, said conductor asked the defendant if he had seen any of the checks contained in

3. Evidence examined, and found sufficient to support the verdict.

(Syllabus by the Court.)

James McCray was convicted of larceny, and brings error. Affirmed.

SHACKLEFORD, J. At the spring term, 1902, of the circuit court of Alachua county, the plaintiff in error (hereinafter referred to as the defendant) was indicted, tried, and convicted of the crime of larceny of one book of cash checks or certificates of the value of $50, and was sentenced to be confined at hard labor in the state prison for the period of two years. A reversal of this judgment is sought by writ of error.

The first error assigned is based upon the refusal of the trial court to direct the jury to return a verdict of not guilty. In passing upon this point it is sufficient to say that section 1088, Rev. St. 1892, providing for the direction of a verdict by the trial judge, applies only to civil cases. Boykin v. State, 40 Fla. 484, 24 South. 141. While the trial judge would have the right, after all the evidence in a criminal case had been submitted, if he was clearly satisfied that all of said evidence would not warrant or support a verdict of guilty, to instruct the jury to acquit, this is a matter resting entirely within the discretion of the trial judge, and no error can be predicated upon his failure or refusal so to do. However, in the case at bar there was evidence tending to show the guilt of defendant, hence it was eminently proper for the jury to pass upon it, and say by their verdict whether they found the defendant guilty or not guilty.

The other errors assigned are to the effect that the verdict was contrary to the evidence and to the weight of the evidence, contrary to law, and contrary to the instructions of the court; and all of said errors may be considered together. A careful examination of all the evidence discloses the following state of facts: A checkbook containing 50 checks, payable to bearer, and of the value of $1 each, the same being the property of the Gainesville & Gulf Railway Company, a corporation, was delivered by a clerk employed in the office of the auditor of said company to a conductor of said company to be delivered by him to one George Cloversettle. Said conductor placed the envelope containing said checkbook, and which envelope was sealed up and addressed to the said Cloversettle, in the mail box of the baggage car of the train of which said conductor had charge. The defendant was an employé of said company, and was running on said train with said conductor on said day said checkbook

A deputy sheriff, on searching the house of defendant under a search warrant, found therein seven of said checks, which were identified, of which five were claimed by the wife of said defendant and two by his mother-in-law. Another employé of said company testified that on the night of the 14th and on the morning of the 15th of April, 1902, the defendant gave him at three different times checks to have cashed for him-aggregating fifteen in all. None of this testimony is contradicted. The defendant was the only witness introduced in his behalf, and he testified that one Jones had handed him fourteen checks to get cashed for him, and that he (the defendant) had given five of said checks to his wife and two to his mother-in-law, telling them that the checks belonged to a inan by the name of Jones, but, if they wanted to use them, it would be all right.

We are of the opinion that the testimony is sufficient to sustain the verdict, and, following the long-established practice of this court, we must refuse to disturb it. Scarborough v. State, 39 Fla. 436, 22 South. 720; Browning v. State, 41 Fla. 271, 26 South. 639.

We have examined the charges given by the court, and find that they state the law applicable to the case correctly, and that the verdict of the jury is not contrary thereto. None of the errors is well assigned, and the judgment of the court below must be affirmed.

(135 Ala. 639)

SOUTHERN RY. CO. v. HOWELL. (Supreme Court of Alabama. Feb. 28, 1903.) MASTER AND SERVANT-RAILROAD BRAKEMAN-INJURIES-DERAILMENT OF CAR-ADMISSIBILITY OF EVIDENCE-PROPRIETY OF INSTRUCTIONS.

1. In an action by a brakeman for injuries from the derailment of a car he testified that he received instructions from the conductor by a telegram signed by M., and that he had lost the telegram, and could not produce it. Held, that any ground for an objection that it was not shown that the telegram had been signed by M., or who M. was, was removed by plaintiff's further testimony that it was signed by M., the train dispatcher, and that plaintiff saw the operator hand it to the conductor.

2. An objection that the telegram spoken of by plaintiff was not the original, but a mere copy, was untenable, as it did not appear from the evidence, or from judicial knowledge of the methods used in train dispatching, that any copy was made.

3. The contents of the telegram, and the fact of its delivery to plaintiff, were relevant, as tending to show that plaintiff, when injured, was acting within the scope of his employment, and on an assurance of the track's good condition, which tended to acquit him of negligence in not discovering the obstruction which caused the accident.

4. As furnishing data for the assessment of damages in a personal injury action, it is proper for plaintiff to prove what he earned while in the service of a previous employer.

5. Under Code, § 1749, providing that an employer shall be liable for a personal injury to a servant as if the latter were a stranger, where the injury is caused by the negligence of any other servant having charge of "any part of the track of a railway," it is not essential that the defective track occasioning injury to a brakeman should be finished or in charge of the regular section foreman; but if it has reached such a stage of construction as to become "the track of a railway," and has been adopted for use, the case is within the statute, regardless of whether the negligent employé is the section foreman or a construction foreman.

6. In an action by a railroad brakeman for injuries from the derailment of a car owing to an obstruction near the track, evidence considered, and held to require submission to the jury of the questions whether the construction foreman was in charge of the track, and was negligent in failing to discover or remove the obstruction, and also whether the obstruction had existed long enough to have enabled the person in charge to have discovered it.

7. In an action by a railroad brakeman for injuries, instructions that, if the jury believe the evidence, they must find for defendant "on the second count of the complaint" and "on the third count of the complaint," are improper, as tending to mislead the jury into thinking it their duty to render a verdict with special reference to the particular counts.

8. In an action by a brakeman for injuries from the derailment of a car, caused by an obstruction near the track, the defendant company pleaded that plaintiff was riding on the front of a car for the purpose of watching for obstructions on the track, and negligently rode with his leg over the side of the car, and failed to notify any one that the obstruction mentioned in the complaint was in dangerous proximity to the track. Held, that to sustain the plea it was necessary to find, not only that plaintiff was negligent in riding with his leg outside the car, but also that he was negligent in failing to give notice of the obstruction.

9. In an action by a brakeman for injuries from the derailment of a car, occasioned by an obstruction near the track, in which contributory negligence is pleaded, the measure of plaintiff's diligence is the probable conduct of a man of ordinary prudence under like circumstances; and questions whether, by that test, he was at fault in riding with his leg outside of the car, or in failing to perceive and give warning of the obstruction (he being stationed as a lookout at the time), were for the jury.

10. In an action by a brakeman for injuries from the derailment of a car on which he was riding with his leg hanging over the side, an instruction that a brakeman, even in discharge of his duties, has no right to assume a position of obvious danger, and, if he does so, and suffers injury, has only himself to blame; that there are certain positions on a train known to be extradangerous, such as where a brakeman sits on the brake-beam of a car with his legs hanging down between the cars, and if one voluntarily goes into such a place, and is injured, he has no one to blame but himself; and that plaintiff's position was voluntarily assumed, and the jury are to determine whether it was necessary, etc.-is properly refused as argumentative. 11. In an action by a brakeman for injuries from the derailment of a car, caused by an obstruction near the track, an instruction that in riding on the car with his leg on the outside plaintiff assumed the risk, is properly refused, it not having been shown that the danger of derailment by the obstruction was obvious to or was understood by plaintiff.

4. See Damages, vol. 15, Cent. Dig. § 490.

12. Where a requested charge was erroneous as invading the jury's province, a modification by the court, not erroneous in itself, was not ground for reversal.

Appeal from City Court of Birmingham; Chas. A. Senn, Judge.

Action for injuries by W. H. Howell, a brakeman, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The opinion states the material facts relating to the admission or exclusion of evidence.

The following special written charges were requested by defendant, and separately refused by the court, namely: "(1) If the jury believe all the evidence in this case, they must find a verdict for the defendant.” “(3) If the jury believe all the evidence in this case, they must find a verdict for the defendant on the second count of the complaint. (4) If the jury believe all the evidence in this case, they must find a verdict for the defendant on the third count of the complaint." "(7) The court charges the jury that if they believe from the evidence that the cross-tie which caused the derailment of the car was left at a safe distance from the track by the servants of the defendant, and that it was subsequently placed in dangerous proximity thereto by the employés of the mining company operating the mines at that point, and not by the employés of the defendant, and that this caused the accident to plaintiff, then they must find a verdict for the defendant. (8) If the jury believe from the evidence that the cross-tie causing the derailment of the train was in the clear of the cars passing on the track, and that the employés of the mining company, in removing slate or refuse from the track, buried one end of it, and raised the other end up so that it would strike the car, and that this was the cause of the accident and injury to plaintiff, then they must find a verdict for the defendant." "(11) The court charges the jury that if they believe from the evidence that plaintiff was riding on the car with his leg over the side of the car, on the outside thereof, and that the injury to him resulted in whole or in part therefrom, then they must find a verdict for the defendant. (12) The court charges the jury that the evidence in this case shows that plaintiff was riding the car with his leg on the outside thereof, and the law is that in assuming this position he assumed the risks incident thereto, and cannot recover in this action. (13) The court charges the jury that it is negligence per se for a brakeman to ride on a car with his leg hanging outside of the car, and, if he is injured in that position by reason thereof, then he cannot recover in an action for damages for such injury." "(15) If the jury believe from the evidence that plaintiff saw the cross-tie twenty yards ahead, and failed to signal the engineer or give him warning of the obstruction, and that this contributed