as accessary before the fact. If he was an accessary before the fact. he was equally guilty of the crime of murder.

The circumstances shown fully warranted the charge.

8. The court also instructed the jury as follows: "You are the sole judges of the credibility of the witnesses who have testified in this case, and if you believe that any witness in the case has willfully testified falsely to any material point in the case, you are at liberty to disregard the entire testimony of such witness."

We are told that this instruction is wrong because it did not contain a qualification concerning corroborating testimony. It is said that if a witness willfully testifies falsely to a material fact, but his testimony as to other material matters is supported by corroborating proofs or circumstances, the jury should be told that they need not discard it in so far as it relates to such other matters. This position would perhaps be correct, should a court assume the doubtful authority of directing the jury that they must disregard the entire evidence of a witness willfully testifying falsely to one material fact; but it is not correct in cases like the present, where the court simply suggests that the jury may disre gard, or that they are at liberty to disregard the testimony of such witness.

In Hamilton v. People, 29 Mich. 173, the court say: "While the jury cannot be compelled to disregard all the testimony of a witness who has willfully falsified, yet they may do so if they do not trust it."

In State v. Dwyer, 25 Mo. the judge who writes the opinion uses this language: "In my opinion, if the jury believe that a witness has willfully testified falsely in respect to a material fact, it is their duty to disregard the whole of his testimony and they should be so instructed by the court, but the other members of the court think that the jury ought only to be told that they may do what I think they are bound to do:" Paulette v. Brown, 40 Id. 52; People v. Sprague, 53 Cal. 491; Day & Co. v. Crawford, 13 Ga. 508.

9. The thirteenth instruction contained in the charge reads as follows: "The defendant in this case is a competent witness in his own behalf, and you are the sole judges of his credibility, and in determining such credibility you are at liberty to take into consideration any interest that the testimony may show such witness to have in the result of this case, if any is shown; any motive that the testimony may show him to have to induce him to testify falsely, if any is shown; his manner on the witness-stand; the probability or improbability of his statements; the consistency or inconsistency of his statements, one with the other; and, in fact, all the circumstances proved in the case that may enlighten you as to whether such witness is telling the truth or not."

It is claimed that this part of the charge is error, for the reason that it improperly singles out the testimony of the defendant, and directs the attention of the jury thereto. There can be no doubt as to the impropriety of the court's selecting and giving undue prominence to certain facts, or commenting thereon to the exclusion of certain other

and important parts of the testimony; indeed, under our practice, his province is to state the law, and omit all comment upon the evidence. But we know of no rule which prohibits the court's mentioning, in an appropriate way, a particular witness or class of witnesses. Our statute, speaking with reference to the testimony of a person on trial for crime, says that his interest, by reason of this fact, "may be shown for the purpose of affecting his credibility." In weighing the testimony of such person, and passing upon its credibilty, the jury have an un doubted right to consider all the circumstances under which it is given, including his particular personal interest in the result of the trial; and it is not error for the court to remind them of the latter circumstance, provided, as in this instance, he refrains from intimating or suggesting the degree of weight to be given it: See Bullinger v. People, 95 Ill. 394; People v. Morrow, 60 Cal. 142.

10. The fourteenth instruction allowed says to the jury: "You are further instructed that while you are not to find the defendant guilty, if you entertain a reasonable doubt of his guilt, you are not to search for a doubt. The doubt referred to must be such a doubt as would naturally arise in the mind of a reasonable man upon review of all the evidence in the case. It means a serious, substantial, and well-founded doubt, and not a mere possibility of a doubt. It is such a doubt as in the important transactions of life would cause a reasonable and prudent man to hesitate and pause, and when you can say after considering all the evidence in the case that you have an abiding conviction of the truth of the charge, then you are the more satisfied beyond a reasonable doubt."

Considering this instruction as a whole, we discover nothing objectionable therein. Counsel argue that the portion thereof which we have italicized was misleading to the jury; that from it they were given to understand that if, in the important transactions of life, a reasonable man would act, then the doubt spoken of in the instruction would not exist. If their interpretation were correct, the objection would be much more difficult to answer; because a reasonable and prudent man often acts in connection with the most important business upon a mere preponderance of proofs or considerations; and he may have many serious and reasonable misgivings as to the propriety of the step taken; but juries in criminal cases must acquit if there exist in their minds a single reasonable doubt. We, however, think the inference drawn from the instruction by counsel unwarranted. The language under consideration does not declare that the doubt being defined is one upon which a reasonable man would act. The jury are thereby informed that it is such a doubt as would cause a reasonable and prudent man to hesitate and pause; there is a vast difference between hesitating or pausing and acting. The doubt which leads a man to hesitate or pause may be very far from being such a doubt as would control his action. And we think that if in the important transactions of life a doubt arises in the mind of a reasonable and prudent man which would not lead him to hesitate, or to pause and consider of

No. 107-2

his future action, that doubt is not such a reasonable doubt as would justify a jury in returning a verdict of acquittal. Upon a careful examination of the cases it will be found that the instructions on this subject which are held erroneous are those wherein the doubt is defined to be such an one as would control a reasonable man, or lead him to act.

11. The objection, urged by counsel for plaintiff in error, to the court's modification of the fifth instruction, asked in behalf of their client, is not well taken. By this instruction, as amended and given, the jury are substantially told that in cases where the conviction is to rest upon circumstantial evidence only, if there is any other reasonable theory or hypothesis upon which the killing may be accounted for, they are to acquit. We do not understand the law to be that any unreasonable or imaginary hypothesis, though it be supposed to arise from the evidence, will justify a verdict of not guilty: People v. Cronin, 34 Cal. 191; State v. Nelson, 11 Nev. 334; Hauser v. State, 58 Ga. 78.

12. The court did not err in refusing to give instructions numbered 3 and 4 asked by the defendant. Assuming these instructions to state correct propositions of law, they were fully covered by portions of the charge allowed, and while there are some cases which seem to recognize the doctrine that a good instruction asked should be given, though it be entirely cumulative, we think the converse is the better rule. When a proposition of law is once clearly stated, the repetition thereof, in the same or different language, could only tend to embarrass and confuse the jury.

13. The last position of counsel which we deem of sufficient importance to notice is that the evidence does not justify or sustain the verdict.

In view of the gravity of this case we have examined the voluminous record with more than the usual care. As a result of such investigation we do not feel warranted in interfering upon the ground of insufficient evidence. The conviction, it is true, is based upon circumstantial evidence. Yet there is woven about the defendant a web of circumstances which, coupled with his attempted explanations thereof, point irresistibly to him as one of the guilty parties. The effort to prove an alibi is not satisfactory, and his explanations of some of the suspicious incidents disclosed by the prosecution, such as his sudden acquisition of money, similar in denomination to that taken from the body of the deceased, were accompanied by so many improbable circumstances that the jury might well have regarded them as strong corroborating evidences of guilt.

The defense has been ably conducted throughout. From first to last counsel have spared no honorable effort to avert the demands of retributive justice. They have assigned for consideration, and skillfully argued in this court, every question which could possibly lay the foundation for legal interference; no stone has been left unturned in the effort to rescue their unhappy client from the doom awaiting him. But in the discharge of the duties imposed upon us, and under the sol

Sup. Ct. Col.] PEOPLE. EX REL. ATTORNEY-GENERAL v. GODDARD. 591

emn obligation of our official oath, we are reluctantly compelled to say that they have been unsuccessful.

The judgment is affirmed, and, in pursuance of the statute, an order will be entered of record designating the fifth of February, A. D. 1886, as the date for executing the sentence pronounced.

FORM OF OATH OF JUROR, SUFFICIENCY OF: See State v. Angelo, 4 West Coast Rep. 482; Leonard v. Territory, 7 Id. 470.

PEOPLE EX REL. ATTORNEY-GENERAL v. GODDARD.
Filed December 4, 1885.

QUO WARRANTO-PROCEEDING TO OUST JUDGE.-In a proceeding to oust defendant from the office of judge of the district court, held, that in so far as the matters stated in the present information refer to defendant's disqualification to take the office in the first instance, the ground was fully covered by the former proceeding and decision, reported in 7 West Coast Rep. 24; that the matters now charged for the first time constitute a new and different cause of action, and that the supreme court is without jurisdiction, under the constitution, to entertain and investigate the same by proceedings in the nature of quo

warranto.

QUO WARRANTO. The opinion states the facts.

T. H. Thomas, attorney-general, Thornton H. Thomas, and Luther H. Dixon, for the plaintiffs.

Charles S. Thomas, Clinton Reed, Joseph A. Taylor, William Kellogg, J. B. Bissell, and C. I. Thompson, for the defendant.

By the COURT. At the April term 1884 of this court an information in the nature of a quo warranto was filed against the above-named defendant, by the attorney-general upon his own relation, to oust said defendant from his office of judge of the district court of the fifth judicial district.

The charges preferred were to the effect that the defendant was disqualified to hold said office at the time of his election thereto, and at the time of his induction into office.

The attorney-general based the charges and rested the jurisdiction of this court to entertain them upon the English statute of 5 & 6 Edw. VI., c. 16.

The court however declined to entertain the information, upon the ground that the statute mentioned had been repealed by the legislature and was not in force in this state.

At the October special term this year the attorney-general asked leave to file an amended information in the same case, basing the charges therein contained upon section 6 of article 12 of the state constitution, as well as upon the statute of 5 & 6 Edw. VI.

The motion was set down for hearing and was discussed at length by counsel, both on the part of the state and on behalf of the defendant, briefs also being filed by both parties. The first three counts are substantially the same as those filed in the original information, and

relate to the antecedent disability of the defendant to take and administer the office to which he was elected. The remaining counts charge acts done by said defendant since his induction into office, which are alleged to disqualify him to hold and administer the duties thereof.

Previous to the hearing the attorney-general stated to the court and opposing counsel that if the information as amended could not be entertained he intended to strike out the counts charging the defendant's disability at the time of entering into office, and then file the document as an original information upon the charges contained in the remaining counts.

Thereupon, by agreement of counsel, as the court understood at the time, and as a matter of convenience, the subject-matter of both the amended and proposed original information were discussed and considered together upon objections made by the defendant thereto, in the nature of demurrers to the jurisdiction of the court to entertain either of such informations.

We have expended much time in a careful examination of authorities in respect to the question of jurisdiction, and have arrived at the following conclusions, in which all the members of the bench concur: 1. That in so far as the matters stated in the present information refer to defendant's disqualification to take the office in the first instance, the ground was fully covered by the former proceeding and decision; 2. That the matters now charged for the first time constitute a new and different cause of action, and the court is unanimously of the opinion that it is without jurisdiction, under the constitution, to entertain and investigate the same by proceedings in the nature of quo warranto. These conclusions dispose of the motion before the court. Differences of opinion exist among us as to the ground on which to base the defect of jurisdiction. For this reason, and the further reason that we are pressed for time, we deem it both unprofitable and unwise to discuss the subject in separate opinions upon the pending motion.

The motion is denied.

BOARD OF COUNTY COMMISSIONERS OF SAN MIGUEL Co. v. LONG.

Filed December 5, 1885.

CLERK OF DISTRICT COURT-FEES FOR MAKING JUROR'S CERTIFICATES.-Under section 1922 of the general statutes the clerk of the district court is not entitled to compensation for making and delivering the certificates to the jurors showing the number of days they have attended at each term; nor for taking the jurors' affidavits concerning their attendance.

ERROR to the district court of Ouray county. The opinion states the facts.

Enos Miles and William Story, for the plaintiff in error.

HELM, J. Defendant in error, being clerk of the district court of Ouray county, brought this action against the county commissioners in