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already explained, correctly and fully. If, for example, there are different degrees of an offense, the law of each degree, which the evidence tends to prove, should be given, but not of any degree which it does not tend to prove." Ir. Crim. Proc. $ 980, and numerous cases cited.

Another writer says: “As to the grade or character of the offense, it is the duty of the court to define, in all its elements, the offense charged; to point out what constitute the different grades of the offense charged in an indictment, as in the case of homicide.” Prof. Eatt, on Jury Trial, section 328. Wharton, on this subject, says: “The law is to come from the court, and the court is bound to give the law; and it has been repeatedly declared that the defendant has a right to a full statement of the law from the court, and that a neglect to give such full statement, when the jury consequently fall into error, is sufficient reason for reversal.” Whart. Crim. Pl. & Pr. § 709. “It is error for the judge, unless there be an entire absence of evidence to prove a particular grade of murder, to exclude such grade from the consideration of the jury." Id. $ 713; McNevins v. People, 61 Barb. 307; Adams v. State, 29 Ohio St. 412.

We have quoted thus far from the text-writers; but the law is made clear in this territory not only by the statute but by several adjudications. The practice act of 1880, section 23, provides, among other things, that “the court shall instruct the jury as to the law of the case, but shall not comment on the weight of evidence.” Prince's Comp. 126. This statute of course can only mean that the court shall instruct the jury as to all the law applicable to the evidence in the case, and this being so, a failure to do so would be error. The court is not permitted to wait until it is asked to charge as to a particular degree of crime to which the evidence is applicable, but it must do so as a part of its duty in the case. The question has, however, been passed upon in this court. In Territory v. loung, this court said: "Of course, the judge who thus excludes certain degrees from the consideration of the jury, does so at his peril; that is to say, he should be absolutely certain in that there is no testimony whatever which would make a verdict of one of these degrees possible, for if there is the least eridence, it is for the jury to determine its weight and effect. And the slightest mistake of that kind would be error for which the appellate court would have to grant a new trial.” 2 N. M. 93. In another case, at the same term, this court said, in considering the same ques. tion in a capital case: "If there is any evidence whatever which could bring the case within the definition of any degree not given, the limitation of the degree in the charge to the jury would be error which would be good cause for reversal." Territory v. Remine, 2 N. M. 114. See, also, Territory v. Romero, 2 N. M. 474.

Did the court below err in its instructions to the jury in this case ? The evidence on both sides was to the effect that the prisoner, the deceased, and two other persons were seated at a table playing cards

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together; that the prisoner charged the deceased with cheating, and then jumped up and either drew a pistol or tried to do so, when the deceased clinched with him and both fell to the floor, the deceased being on the top; one of the other players took prisoner's pistol away from him; that then he and the deceased got up, and that after getting up the prisoner stepped about four feet to where his overcoat was, drew from it another pistol and immediately fired at deceased. One witness says that three or four minutes elapsed between the scuffle on the floor and the firing, but it is apparent from all the evidence that the events of the strife followed in rapid succession until it cul. minated in the death of one of the parties. The testimony of the several witnesses to the occurrence, called by both the prosecution and defense, varies but little from the above statement of the evidence. The court, upon this state of proof, charged as to the degrees of mur. der as follows: “If he (prisoner) premeditated the death of deceased, it is murder in the first degree, and the punishment is death. If he killed him upon a sudden impulse, and in great heat of passion, but under circumstances which showed an abandoned mind, regardless of human life, he is guilty of murder in the second degree."

No other degree of the crime of murder was given to the jury. Passing over the first degree of the crime as given by the court, and wbich it is unnecessary to consider, as the prisoner was not convicted of it, we think the court below erred in its definition of the second degree of murder, and to the prejudice of the prisoner. Correctly defined, under our law, murder in the second degree consists of “the killing of a human life, being without authority of law,

when perpetrated by an act imminently langerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. The killing in the case at bar was not such a killing as is contemplated by this defined degree of murder. This statute does not contemplate a homicide committed “upon a sudden impulse and great heat of passion,” as stated by the presiding judge in his charge in the court below, but a killing perpetrated by an act imminently dangerous to others, and without design to effect the death of any particular person, and evincing a reckless disregard of human life, such as recklessly firing a pistol into a crowd, or casting a stone from the top of a house into a crowded street without thought or regard of the consequences of such acts, or as to who should be injured or killed thereby. The prisoner in this case, upon all the evidence, either unlawfully killed the deceased from a premeditated design to effect his death, in which case he should have been convicted of murder in the first degree, or he killed the deceased under circumstances which would have warranted bis conviction of the crime of murder in the fourth degree as defined in our law. One of those definitions is: “Tbe killing of another in the heat of passion without design to effect death, by a dangerous weapon.

We are of the opinion that upon the evidence the court below erred in not defining to the jury this degree of murder. The prisoner and deceased had a fight, and the jury might very well have found on the evidence that, in the heat of passion consequent on it, and immediately following it, the prisoner fired the shots which caused his death, but without design to effect it. All the evidence shows that the prisoner fired the shots, and fired them at deceased, either with design to effect his death or without that design. There can be no question but that the shots were intended for the deceased, and him alone, and so the case could not be one of murder in the second degree. The prisoner was, upon the evidence, improperly convicted of that degree of crime, and we think that this resulted from the erroneous definition of that offense given by the presiding judge in the court below, and from his failure to submit to the jury the definition of murder in the fourth degree as being applicable to the evidence in the cause.

The judgment must be reversed and a new trial ordered.

BRISTOL, J. I concur.

TERRITORY V. YEE SHUN.

January Term, 1884.

Where a witness, a Chinaman, says that he believes in the Chinese religion, and takes an oath which would bind his conscience to tell the truth, he is, as to the matter of religious belief, a competent witness.

The defect of religious belief is never presumed, and the party objecting on that ground must show such a want of belief as to render the witness incompetent, and this must be done by evidence aliunde.

Appeal from First district.

Wm. Breeden, Atty. Gen., for the Territory.

T. A. Green, for appellant.

BELL, J. The appellant was convicted, at the August term of the district court for the county of San Miguel, for the crime of murder in the second degree, and was sentenced to imprisonment for life. He has taken an appeal to this court. The only error assigned is. that on the trial in the court below, Joe Chinaman, who testified and. gave material evidence in the case, was incompetent for want of religious belief. From the record it appears that before being sworn, this witness was examined by counsel for defendant as to his competency, as follows: "Question. I will ask you if you believe in the Chinese worship, their Joss-houses; do you believe in the Chinese Joss? Answer. I live in a Chinese house. Q. I will ask

you

if

you believe in the Chinese Joss-house, where they worship, where they have their religious services? Do you go with Chinamen in this country when they worship? Do you understand what a God is? A. I don't know what it is. Yes, I believe the Chinese religion. Q. Have you ever changed from Chinese to Christian religion since you came to this country? A. I am a Chinaman and believe in the Chi

I . nese religion. Q. Was you ever a witness in court before ? A. Yes. Q. Do you know anything about the obligations of an oath under the Christian religion? A. I don't know it."

A. I don't know it.” To the question put by the attorney general, the witness answered as follows: “Question. Ask him if he knows what he is required to do when he takes an oath here as a witness ? Answer. He come here for a witness to prove that a man got killed. Q. Ask him what he is to do or what his duty is in telling his story as a witness; if he knows what his duty is as to telling the truth? A. I can tell the truth in this case. Q. Do you know that you are sworn here so that you are to tell the truth? A. Yes.” The witness was then sworn, and permitted to testify, over the objection and exception of the prisoner's counsel.

The record shows the objection to have been in form as follows: “Objection by Mr. Green to the form of the oath as administered, and the admissibility of the witness. Objection overruled; exception." This objection, we think, was properly overruled. There is nothing in the record to show that the witness was not entirely competent. The witness said that he was a Chinaman, and believed in the Chi. nese religion. What that religion teaches in regard to the existence of a supreme being, or in regard to future rewards and punishments, does not appear. The only question here is whether, whatever may be the religious belief of the witness, he took an oath which would bind his conscience to tell the truth. The witness testified that he was sworn in such manner as that he was to tell the truth. In consir'. ering this question, Greenleaf says: “If the witness is not of the Christian religion, the court will inquire as to the form in which the oath is administered in his own country, or among those of his own faith, and will impose it in that form. But if the witness, without making any objection, takes the oath in the usual form, he may be afterwards asked whether he thinks the oath binding on his conscience." 1 Greenl. Ev. § 371. Of course, he can as well be asked before as after being sworn, as was done in this case. The defect of religious faith is never presumed. Id. S 370. It is therefore incum

§

.' bent on the party objecting to the competency of a witness on this ground to show such want of religious belief as to render him incom. petent, and this must be shown by evidence aliunde. Id., and note. This the appellant has failed to do.

The judgment must be affirmed.

BRISTOL, J. I concur.

SUPREME COURT OF OREGON.

BRANSON and others v. OREGONIAN Ry. Co., (Limited.)

Filed January 14, 1884.

1. The power of the circuit court over amendments to pleadings, after a remand from the supreme court, is not affecied by the circumstance of an appeal having been taken ; and while the supreme court may send a case back for amendment of pleadings and retrial generally, it has no power to prescribe the character of the amendments to be allowed, or the mode of conducting subsequent proceedings.

2. Property purchased from a private corporation in good faith and for an adequate consideration is not subject to a trust in the hands of a purchaser, for the satisfaction of unpaid debts of the corporation, although the purchaser had notice of such debts at the time of the purchase. And the rule is the same wheiher the purchase includes all the property of the corporation or only a part of it.

3. A written instrument, purporting to be an agreement between parties, but understood and intended to be a mere form, and never delivered to take effect as an actual agreement, is of no force as between such parties, and parol evidence is ad. missible to prove such facts.

The other points settled loy the decision of the court in the same case, 10 Or. 278.

Appeal from circuit court of Yam Hill.

The plaintiffs in the lower court and respondents herein brought suits against the Oregonian Railway Company, (Limited,) the Oregon Railway Company, (Limited,) William Reid, Ellis G. Hughes, James B. Montgomery, and Joseph Gaston, and the Dayton, Sheridan & Grand Ronde Railway Company, and the Willamette Valley Railroad Company, to enforce payment of certain obligations known in the case as freight receipts, and sought to charge the property of the Dayton, Sheridan & Grand Ronde Railway Company with a trust for the payment of these obligations; also, to charge the liability on the stock. The Dayton, Sheridan & Grand Ronde Railway Company conveyed its property to the Willamette Valley Railroad Company, as consideration for the payment of the debts of the Dayton, Sheridan & Grand Ronde Railway Company. The Willamette Valley Railroad Company conveyed to the Oregon Railway Company (Limited) for the same consideration, and the Oregon Railway Company (Limited) conveyed the property to the Oregonian Railway Company Limited) without consideration. Joseph Gaston subscribed for $100,000 of the stock in the Dayton, Sheridan & Grand Ronde Pailway Company, and $500,000 in the Willamette Valley Railroad Company, and subsequently assigned to E. G. Hughes, as set out in the opinion. The case was heard and determined in the circuit court, and went to the supreme court on appeal, when the Oregonian Railway Company appeared by new counse) and charged bad faith on its attorney and asked his removal; and also that William Reid and Ellis G. Hugues had acted in bad faith as their agerts, and to such an extent as to

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