CRIMINAL LAW (Continued). ing him that one of the witnesses was generally known by a name other than that given in the subpoena, and that one of the witnesses was present at the trial, and the affidavit presented in support of motion for further continuance did not show any probability that the second witness could be found, or due diligence in attempting to secure attendance of the third, and it was a very serious question whether the evidence sought to be furnished by the witnesses would materially affect the defense of the accused, there was no abuse of discretion in the denial of the application for further continuance. (Elias v. Territory, 1.) 7. CRIMINAL LAW EMBEZZLEMENT-INDICTMENT-REV. STATS. ARIZ. 1901, PEN. CODE, SEC. 462, CONSTRUED.-Under section 462, supra, reading, "Every clerk, agent, or servant of any person, who fraudulently appropriates to his own use any property of another which has come into his control or care by virtue of such employment as such clerk, agent, or servant, is guilty of embezzlement,” an indictment charging that defendant on July 13, 1904, as agent of McD., received a certain sum, and afterwards, on October 5th, appropriated a portion thereof to his own use, does not state facts sufficient to constitute the offense of embezzlement, in that it fails to allege the relation of agent on the part of defendant at the time the appropriation is charged to have been made. (Thomas v. Territory, 180.) 8. CRIMINAL LAW-EMBEZZLEMENT PERFECTION OF TRUST.-The mere placing of money in bank, subject to defendant's order, to be used for certain purposes, does not perfect in defendant a trust, within the meaning of the law of embezzlement, but such trust is complete only when he draws the money from the bank pursuant to his authority. (De Leon v. Territory, 161.) 9. SAME-SAME-EVIDENCE-HELD SUFFICIENT.-Held, that the evidence was sufficient to sustain a conviction of embezzlement by defendant of money belonging to his wife and deposited in bank subject to his order. (De Leon v. Territory, 161.) 10. CRIMINAL LAW-EVIDENCE-PRIVILEGED COMMUNICATION-SECONDARY EVIDENCE. The contents of a letter written by defendant while in jail, to his wife, under a rule of which he had knowledge, that it would be opened and examined by the jailer, is not a privileged communication; and although the wife will not be permitted to testify thereto, and cannot be compelled to produce the letter, yet the sheriff, who read the letter, may testify to its contents after the necessary foundation is laid. The fact that the letter could not be secured from the wife, nor the wife be permitted to offer it in evidence, authorized the establishment of its contents by secondary evidence. (De Leon v. Territory, 161.) CRIMINAL LAW (Continued). 11. CRIMINAL LAW-FORMER JEOPARDY.-The erroneous granting of a motion for defendant, after pleading not guilty without demurring, to dismiss the indictment on the ground that the act defining the offense had been repealed, is not a bar to further prosecution of the offense. (Territory v. Ruval, 415.) 12. CRIMINAL LAW-GRAND LARCENY-COLT-SUBJECT OF IRRESPECTIVE OF VALUE-REV. STATS. ARIZ. 1901, SEC. 444, AS AMENDED BY ACT No. 18, LAWS 1903, CONSTRUED—Martinez V. TERRITORY, 5 Ariz. 55, 44 PAC. 1089, DISTINGUISHED.-Under section 444, supra, as amended, making it grand larceny to steal a horse, mare, gelding, etc., the term "mare" is sufficiently comprehensive to include within its meaning property described in an indictment as "one certain animal of the horse species,-to wit, a female colt about one year old," and the property so described is therefore the subject of grand larceny, irrespective of its value. (Miller v. Territory, 123.) 13. CRIMINAL LAW-GRAND LARCENY - - EVIDENCE-SUFFICIENCY.-Evidence reviewed and held sufficient to sustain a conviction for grand larceny. (Davis v. Territory, 264.) ... Upon a trial 14. CRIMINAL LAW-HOMICIDE-BURDEN OF PROOF ALWAYS ON PROSECUTION-NEVER SHIFTS TO DEFENDANT INNOCENCE-PRESUMPTION -EVIDENCE-REV. STATS. ARIZ. 1901, PEN. CODE, SEC. 933, REV. STATS. ARIZ. 1887, PEN. CODE, SEC. 1655, CONSTRUED.-Section 933, supra, provides: "Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed amounts only to manslaughter or that the defendant was justifiable or excusable. . . . " for murder the court charged the jury that it was necessary for the defendant to establish his claim of self-defense "by a preponderance of the evidence." Held, that this charge was erroneous, as the presumption of innocence is always with defendant until a verdict of guilty is returned, and under section 933, supra, it is only incumbent upon the defendant to produce such proof as will raise a reasonable doubt in the minds of the jury whether or not the killing was justifiable or excusable. (Anderson v. Territory, 50.) 15. CRIMINAL LAW-HOMICIDE-Defense-INSANITY-QUESTION OF FACT -EVIDENCE-CONFLICT-VERDICT-WILL NOT BE DISTURBED ON APPEAL. The question of the sanity of the accused at the time of the commission of the offense charged is a matter of fact for the jury to determine, and where there is a conflict of evidence upon the point, and there is material evidence to support the verdict of the jury in relation thereto, it will not be disturbed on appeal. (Elias v. Territory, 1.) CRIMINAL LAW (Continued). 16. CRIMINAL LAW-HOMICIDE-EVIDENCE-RES GESTE.-Where a witness who was present at a homicide was asked what deceased said immediately after he was shot, and the answer being that he said, "Boys, I am shot," the question was a proper one, it being directed to a statement properly a part of the res geste, and the answer was admissible, it being directly connected with the main fact, and characterizing and explaining it. (Sheehy v. Territory, 269.) 17. CRIMINAL LAW-HOMICIDE-SELF-DEFENSE-REV. STATS. ARIZ. 1901, PEN. CODE, SECS. 181, 182, CONSTRUED.-Sections 181 and 182, supra, provide that "A homicide is justifiable when committed in the lawful defense of such person, when there is reasonable ground to apprehend a design . . . to do some great bodily injury, and imminent danger of such design being accomplished. But such person if he was the assailant . . . must really and in good faith have endeavored to decline any further struggle before the homicide was committed. A bare fear of the commission of the offenses, . . . to prevent which the homicide may be lawfully committed, is not sufficient to justify it, but the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone."' Under these sections, the testimony of the defendant that after his sister had told him of an insult offered her by deceased he saw him coming down the road, and, picking up a gun, walked down the road towards him, and turning brought the gun up and said, "What did you insult my sister for?" to which deceased did not reply for ten or fifteen seconds, when he saw deceased jerk his hand, and thinking he was going for his gun, being angry and excited, he pressed the trigger and fired, did not present the issue of self-defense. (Hicklin v. Territory, 184.) 18. SAME-SAME-SAME-INSTRUCTION TO JURY-MATTER OF LAW-NOT CRITICISM OF DEFENDANT'S CREDIBILITY.-Where on a trial for murder the facts as given in defendant's statement taken as true did not constitute self-defense as a matter of law, it is the duty of the court to eliminate that feature from the case, and an instruction that "I charge you. under the facts and circumstances shown in the evidence, there is nothing shown to justify, under the law, the killing of Mullino by the defendant, was not erroneous as a criticism upon defendant's testimony. (Hicklin v. Territory, 184.) ... 19. SAME-SAME-EVIDENCE-IMPEACHMENT.-Where a witness takes the stand for the defense in a prosecution for homicide, it is permissible for the prosecution to impeach her by her own cross-examination, in contradiction of her direct testimony, and by the introduction of other competent evidence affecting her credibility. (Hicklin v. Territory, 184.) CRIMINAL LAW (Continued). 20. SAME-SAME-MANSLAUGHTER-INSTRUCTION TO JURY.-In a prosecution for homicide an abstract declaration of the law by the court in charging the jury, that "The law does not permit the taking of human life in rage or passion occasioned by inadequate provocation, —that is, by slight or trivial provocation,-but it must be such as would, in the mind of an average man, be calculated naturally to arouse such rage and passion as would render the mind uncontrollable in its impulses to take life," was not prejudicial, where the court further and fully charged the jury on the reduction of murder to manslaughter, and, in addition thereto, the law relative to manslaughter was fully given in language chosen by the counsel for defendant. (Hicklin v. Territory, 184.) 21. CRIMINAL LAW-INDICTMENT—Grand Jury—Rev. Stats. Ariz. 1901, PEN. CODE, SECS. 792, 862, 873, CITED AND CONSTRUED.-Section 873 of the Penal Code, supra, provides that a judgment sustaining a demurrer to an indictment shall bar another prosecution, unless the court directs the case to be submitted to the same or another grand jury. Section 792, supra, makes the existence of bias and prejudice on the part of a grand juror grounds of challenge. Another section authorizes the interposition of a challenge to the panel of the grand jury after it has been drawn and has appeared, and at the time of the examination of the jurors as to their qualifications. Subdivision 4 of section 862, supra, provides that an indictment may be set aside, upon motion, when defendant has not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge either to the panel or to an individual grand juror. Held, that defendant, against whom a second indictment has been returned under section 873, supra, by the same grand jury that had returned a former indictment, is not entitled to a dismissal of such indictment under section 862, supra, because he has had no opportunity to challenge the grand jury for bias under section 792, supra, arising out of their former consideration of his offense, as no such right of challenge exists. (De Leon v. Territory, 161.) 22. CRIMINAL LAW-INDICTMENT MURDER-AGGRAVATED ASSAULT-INCLUDED OFFENSES-REV. STATS. ARIZ. 1901, PEN. CODE, SEC. 974, CONSTRUED.-Under section 974, supra, providing that a defendant may be found guilty of any offense, "the commission of which is necessarily included in that with which he is charged,'' a conviction for an aggravated assault under an indictment charging murder, and setting forth circumstances which in themselves constitute an aggravated assault, will be sustained. (Mapula v. Territory, 199.) 23. SAME-SAME-SAME-INDICTMENT-SUFFICIENCY-REV. STATS. Ariz. 1901, PEN. CODE, SEC. 215, CONSTRUED.-An indictment charging in effect that defendants assaulted and inflicted "certain mortal CRIMINAL LAW (Continued). injuries" upon the deceased, is sufficient to charge an aggravated assault under section 215, supra, providing that an aggravated assault is committed "when a serious bodily injury is inflicted upon the person assaulted," the words "mortal injuries" being taken as the equivalent of "serious bodily injuries." (Mapula v. Territory, 199.) 24. CRIMINAL LAW-LARCENY-VENUE-PROOF-SUFFICIENCY.-Before a verdict of guilty can be allowed to stand, on an indictment charging a theft of a cow in P. County, there must be some proof adduced which will connect the defendant with the commission of the crime in that county. Such proof is not made by evidence which shows that the animal was accustomed to range in P. County, was seen there at a certain time, and months afterward was found in defendant's possession in another county, and that when so found he falsely claimed her as his own. (Armstrong v. Territory, 267.) 25. CRIMINAL LAW-MURDER-TRIAL-JURY-PEREMPTORY CHALLENGES— SEVERANCE REV. STATS. ARIZ. 1901, PEN. CODE, SECS. 903, 910, 913, 918, 925, COMP. LAWS 1877, SECS. 714, 726, CITED AND CONSTRUED.— Under section 726, supra, declaring that a challenge to an individual juror is either peremptory or for cause; section 910, supra, stating the causes for which challenges to individual jurors may be made, and using the term "challenge to an individual juror'' as synonymous with “challenge for cause''; section 913, supra, declaring that challenges to individual jurors shall be tried by the court; section 918, supra, providing that challenges to the panel or to the individual juror shall be oral, and shall be entered on the minutes of the court, together with the court's decision thereon; and section 714, supra, as amended, providing that when several defendants are tried together, they are not allowed to sever their challenges, but must join therein, "except a challenge to an individual juror,” two defendants jointly indicted for murder in the first degree, having made no application for severance, as they might have done, under section 925, supra, were only entitled to the number of peremptory challenges each would have been entitled to if separately tried. (Booth v. Territory, 204.) 26. CRIMINAL LAW-ROBBERY-EVIDENCE-INSUFFICIENCY.-Force or fear being requisite to constitute the crime of robbery, a verdict of guilty of robbery should be set aside where there is an utter absence of evidence tending to show the use of force or the existence of fear. (Ramirez v. Territory, 177.) 27. CRIMINAL LAW-STATUTES CONSTRUCTION - CRIMINAL COMMON LAW RULE-ABOLISHED IN ARIZONA-REV. STATS. ARIZ. 1901, SEC. 5, CONSTRUED. The common-law rule that penal statutes must be strictly construed and nothing be left to implication has been abol |