the evidence introduced at the trial. The information charged the appellant, jointly with two other persons, with having killed the deceased by the use of a certain weapon therein described. Upon the trial it appeared that one Ed. Hill was the person who probably inflicted the wound which it is claimed caused the death of the injured party, and that the appellant and those joined with him aided and abetted the assault during which the wound was inflicted. Under our statute an information is sufficient if the offense is charged in direct language, and the facts accompanying it are not so misstated as to prejudice the defendant in making his defense. From this fact, we feel compelled to hold that the information was sufficient. There might be cases where the charge that one had committed a crime could not be established by evidence that he had aided and abetted another, but under the circumstances of this case this variance, if variance it was, was not so material that the judgment should be reversed on account thereof.

The third, fourth, and fifth assignments of error relate to substantially the same ruling. Evidence was admitted over the objection of the defendant as to the acts and statements of the appellant, and those joined with him and the said Hill, at a time prior to the commencement of the assault in which the fatal wound was inflicted. The court allowed such statements only to be put in evidence as were made by the appellant, or by one of the others in his presence, and for that reason we think no error was committed in the admission of the testimony objected to. The statements and acts of the appellant, or those to which he was a party, were admissible for the purpose of showing the surroundings and circumstances which culminated in the assault. The jury were entitled to know the state of mind of the defendant and those with whom he was so intimately associated. Such knowledge would better enable them to determine the facts connected with the assault itself. This evidence was therefore admissible for the purpose of placing the jury in possession of the circumstances which led up to the assault in which the fatal wound was inflicted. It was also admissible by reason of the concert of action between the appellant and those joined with him in the information and the said Hill in the doing of unlawful acts which resulted in the homicide. To our minds, it clearly appeared from the proofs that these persons were acting in unlawful concert. By reason of such concert, they sought to intimidate those with whom they came in contact in the town of Garfield, and intended to jointly resist arrest by its authorities. Such facts were shown as to satisfy us that there was a deliberate intention, to which these four were parties, to terrorize the law-abiding people of Garfield, and resist any at

tempt on the part of its officers to arrest them for so doing, and that it sufficiently appeared from the proofs that the assault in which the homicide was committed was brought about by their acts in pursuance of such intention. This being so, the court could have rightfully opened the door as to the statements and actions of one or all of these parties much wider than it did. Under the circumstances shown, the ruling of the court upon this question was at least as favorable to the appellant as the law required.

Assignments 6, 7, and 8 grow out of the action of the court in denying appellant's motion that the prosecution be required to call certain persons therein specified, who, it was alleged, had equal or superior knowledge of the facts with the witnesses already called by the prosecution. This ruling presents an important question of law,-one upon which the authorities cannot be harmonized. In some of the states the rule contended for by appellant has been adhered to with great strictness, and the prosecution has been required, at the instance of the defendant, to call any one having knowledge of circumstances connected with the commission of the crime; in other states the rule has been laid down that the prosecution need offer only such evidence as it deems proper; while in still others it has been held that it is a matter within the sound discretion of the trial court, and that its ruling in regard thereto will not be disturbed on appeal unless a clear abuse of discretion is shown. The latter, in our opinion, is the correct rule. The trial court is always in a better situation to understand the peculiar circumstances surrounding the trial than is the appellate court, and it can be safely left to it to determine when justice and fair dealing demand that the prosecution be required to introduce any particular line of evidence which it has seen fit not to offer of its own motion. Under our system of criminal trials, the defendant is not entitled to the same consideration that he was under the rules which prevailed in remote times at common law. At that time the defendant was not in a situation to enlighten the court and jury as to the circumstances surrounding the commission of the alleged offense, and it was but right that the prosecution should be required to put in all the evidence within its knowledge which tended to throw light upon the subject. At the present time a defendant appears with every facility for putting before the jury any fact connected with the transaction which may have been omitted or insufficiently shown by the prosecution. He is assisted by able counsel, and there is no reason why the prosecution should be called upon, in his interest, to produce proof which, in its opinion, will not promote the ends of justice. What we have said in reference to this question applies as well to the fifteenth as

signment of error. The same line of reasoning which sustains the action of the court in refusing to require the prosecution to call all witnesses who had knowledge of the transaction will likewise sustain the action of the prosecution in failing to produce the alleged dying statement of Langford Summers, and the action of the court in refusing to give the instruction which it was claimed was made necessary by the action of the prosecution. It is true, as argued by appellant, that the prosecution never requires a victim. All it desires is that justice may be done. But it does not follow that it is not justified in acting, in a certain degree, as a partisan. The object of a trial is that all the facts may be made to appear. If the prosecution is compelled to bring out the facts favorable to the defendant as well as those against him, and its action is supplemented by the efforts of the defendant, aided by able counsel, which may be and are entirely partisan, it is evident that more emphasis will be placed upon the facts upon one side than upon the other. To avoid this, it is but natural and proper that the prosecution should content itself with bringing out the facts favorable to its side, and leave to the defendant the duty of showing those in his favor. In this way the facts will be fairly presented to the jury for their consideration, and they will be better enabled to arrive at the truth than they would with the additional emphasis on one side which would result from the rule contended for by the defendant. At this time, and under the rules which now obtain in the trial of criminal cases, there is no reason why the prosecution should not be allowed to present its own case in its own way, and the defendant be required to do the same. Special cases require a different rule. But whether or not the circumstances call for a change must be left to the sound discretion of the trial court.

The ninth assignment of error grows out of questions arising upon the introduction of expert proof as to the cause of the death of the injured party. We have examined the course of the prosecution and of the court in that regard, and are satisfied that no error, to the prejudice of the defendant, was committed.

The other assignments of error grew out of the action of the court in giving certain instructions to the jury, and in refusing to give those asked for by appellant. In addition to these alleged errors, there are some other reasons for reversal suggested in the briefs, but they have been or will be sufficiently answered by the discussion upon other points. As to such instructions, we shall only say that the learned court, in the most painstaking and careful manner, attempted to discharge its full duty to the public and to the defendant, and, in our opinion, succeeded admirably. With a single exception, which we shall hereafter discuss, the instructions, when taken together, were sustained by the authori

ties, and were as favorable to the defendant as he could ask. If any criticism was to be made, it would be that they entered more into detail than was necessary. The whole law applicable to the case, in every aspect, was fully covered. Hence, no error was committed in refusing to give the instructions specifically requested by the defendant.

The instruction which we have reserved for special consideration was to the effect that, the homicide being proved, the presumption was that it was murder in the second degree. This proposition is the only one presented by the record in regard to which we entertain doubts. The authorities in regard thereto are not in harmony. Mr. Wharton discusses the question more from a theoretical standpoint than from that of the authorities. He concludes that no such presumption flows from the proof of the killing. He was able to find but few cases to sustain his conclusion, and a somewhat careful search has not led us to many additional ones. His high. standing as a writer upon criminal law, however, compels respect, and it is with great reluctance that we feel compelled to come to a conclusion different from his. It is conceded by all the authorities that under the old common-law rule, the killing having been shown, it would be presumed that murder had been committed. If this was the rule at common law, at a time when the mouth of the defendant was closed, and he was unable to explain the circumstances surrounding the killing, there would seem to be greater reason for its existence at the present time, when it is in his power to fully show the circumstances surrounding the transaction. The premedita. tion required to constitute murder in the first degree is a distinct element, having no relation whatever to the fact of the killing. and for that reason all of the authorities hold that no presumption of murder in the first degree flows from the proof of the killing; but, as to murder in the second degree, the reasons which induced the holding at com. mon law still have force. Every one is presumed to intend the natural and necessary re sults of his actions. If he kills another, he must, in the absence of a showing to the contrary, be presumed to have intended to kill him. And while it is true that, even although he did intend to kill, he may not be guilty of murder, or of any other crime, yet, if he is not, it is by reason of some fact in justification of his action, the burden of proving. which public policy demands should be cast upon him.

If it is held that the fact of killing does not raise the presumption that it was malicious, the administration of criminal justice will be greatly interfered with. It is. therefore the duty of courts to hold otherwise, if due care for the rights of the de-. fendant will allow. Without such presumption to aid the prosecution, it might happen that two persons would be alone in a room, and one kill the other, without any justification whatever, and yet the prosecution be

utterly unable to secure his conviction, for the reason that there was nothing to show the circumstances surrounding the killing. Hence, no presumption that it was other than justifiable could be established. There may be some theoretical logic, if such a term may be made use of, in the arguments of Mr. Wharton and others in reference to this question; but, in practice, justice will much more likely be done both to the alleged criminal and the public by indulging this presumption. Of course, it would not be proper to instruct the jury that it was incumbent upon the defendant to overthrow this presumption by testimony in his own behalf. The proper instruction is that the presumption will have force unless there is something in the case to rebut it. Such was the instruction under consideration, and the better line of reasoning sustains it. Instructions like this are also sustained by the weight of authority. In State v. Cain, 20 W. Va. 679, the principle of the instruction under consideraion was sustained to the fullest extent. In the opinion the court stated in substance that, the killing having been shown, murder in the second degree will be presumed; that, if the prosecution desires to make it murder in the first degree, it must prove the elements which distinguish it from murder in the second degree; and that, if the defense desires to reduce it to manslaughter or justifiable homicide, the burden is upon it. To the same effect is Hill v. Com., 2 Grat. 594. This question has been frequently before the courts of the state of Missouri. In one case the supreme court of that state seemed to yield to the rule contended for by Mr. Wharton; but in other cases, several of which are subsequent to that, and one of which expressly overrules it, the rule for which we are contending has been so established that it is now the settled law of that state. See State v. Gassert, 65 Mo. 352, and State v. Evans, Id. 574. The same rule is also laid down by Lawson in his work on Presumptive Evidence (page 473), and sustained by cases cited in the footnote. 2 Thomp. Trials, § 2208, gives a form of instruction in almost the exact language used by the court in the case at bar, and sustains it by the citation, in the footnote, of the Virginia cases, and by the statement that it is believed that such instruc tion is now approved by almost all the courts. It is believed that, where the killing was by the use of a deadly weapon, the presumption that it was malicious is generally recognized. We have carefully examined this record, which is very voluminous, and are satisfied that every right of the defendant was protected by the action of earnest and able counsel, and that no error against him, of sufficient magnitude to require a reversal, was committed upon the trial. The judgment and sentence will be affirmed.

DUNBAR, C. J., and SCOTT, ANDERS, and STILES, JJ., concur.

HOMICIDE-INDICTMENT-EVIDENCE-COMPETENCY OF WITNESS-INSTRUCTIONS.

1. Where two or more persons are charged in an information with premeditated murder by shooting, and the evidence shows that the one on trial did not do the killing, but abetted the crime, the information will be sufficient as to him.

2. One who uses opium is a competent witness, but, his evidence being unreliable, the jury should be carefully cautioned as to the credence to be given it.

3. The court sustained an objection to a question put to a witness by counsel for the defense in a murder trial, without waiting for the counsel to support it; and thereupon words passed between the court and counsel, resulting in the court ordering counsel to be fined, and stand committed to jail till the fine was paid. Held sufficient ground for a new trial.

4. Where, in a trial for murder, of four persons charged in an information with the crime, one of them is granted a separate trial, and the evidence shows that he stood by and procured the shooting by the other defendants, a charge that, if he fired the shot, he was guilty, is improper.

5. Where the evidence shows that one charged with murder did not do the killing, but abetted it, an instruction that, if the killing was shown to have been the act of defendant, then such killing was murder, unless circumstances were shown justifying it, without a qualification that the kind of murder presumed from the mere fact of homicide with a deadly weapon is murder in the second degree, is reversible

error.

6. In a trial for murder, while it is proper to instruct the jury to consider the interest of accused as a witness, an instruction casting discredit and suspicion upon his testimony is

error.

7. Where the accused claims that, while he was defending himself against assault, some person, unsolicited by him, and unknown to him until afterwards, fired and killed his assailant, an instruction properly presenting the attitude of the defense,-that the accused did not fire the shot which did the killing, and did not incite, procure, aid, or abet the person who did fire it, should be given.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

John White, convicted of murder, appeals. Reversed.

A. D. Warner, for appellant. L. C. Whitney, Pros. Atty., for the State.

STILES, J. The information charged the appellant and three other persons with the premeditated murder of George Schultz, by shooting. The information was in the usual form, except that it charged four persons with the crime, instead of one, and we hold it sufficient. The fact that the theory of the state was that the four persons charged had conspired together to kill Schultz, and that the evidence established that appellant did not fire the shots which caused his death, can have no effect upon the sufficiency of the pleading. State v. Duncan, 7 Wash. 336, 35

Pac. 117.

Certain maps were admitted, upon the identification of a witness who, appellant

claims, was shown to be hostile to him in a marked degree, but in this there was no error. The accuracy of the maps was tested in many ways, and appellant has deemed them so slightly material that he has not attached them to the record.

The court admitted the testimony of one Marsh, a confessed opium consumer, who admitted that he was under the influence of opium both at the time of the occurrences to which he testified, and when he was on the witness stand. Our law makes all persons competent witnesses, in all cases, and we know of no sufficient reason why a person who uses opium should be excluded. At the same time, the authorities agree that the testimony of such persons is very unreliable, and juries should be carefully cautioned as to the credence to be given to it. 2 Whart. & S. Med. Jur. § 334; 1 Rice, Ev. p. 625. Caution was given in instruction 33, at the request of appellant, with an immaterial omission.

On the second day of the trial (which occupied many days), and while the first witness for the state was being cross-examined, a rather remarkable incident occurred. The case had proceeded for hours without an objection, and the immediate subject of inquiry was about a small fight which the witness and appellant had had over the main cause of the whole trouble,-a neighborhood road. Counsel for the state made an objection to the relevancy of a question, and the court sustained it, without waiting for the other side to support it: "Rochester (for appellant): I would like to be heard before your honor sustains the objection. Court: That matter has been gone into several times. That is the reason I sustain the objection. Rochester: I would like to have the privilege, when objections are made to questions Court: I don't always stop to listen to arguments on every objection. Rochester: I except to the court's not hearing me upon the objection. Court: You can have an exception to the question. Rochester: I wish an exception to the court's refusal to hear me on argument. Court: I tell you now I want you to stop this kind of argument. I have given you an exception. Mr. Warner (for appellant): If the court please: Your honor well knows, upon reading the textbooks and authorities of the numbers of murder cases, that many a murder case is reversed Court: I told you I didn't care to hear any more talk on this matter at all. I have given you an exception here, and, if there has anything gone before this jury, you gentlemen are responsible for it yourselves, and I don't care to hear anything more about it. I don't want it to go before the jury. Warner: If the court will not hear us in this case, we cannot go on. Court: Mr. Clerk, you may enter up a fine against this man, you may enter up a fine of $50 against this man, and stand committed to jail until the fine is paid. Mr. Sheriff, take v.39P.no.1-11

charge of this man. Warner: I would like the record to show the reason of the fine. Mr. Clerk, have you a blank check? I will pay the fine. Court: You can proceed with the case." It is difficult to see what all this was about. The case, which was yet in its infancy, had proceeded smoothly enough, the court having sustained fully half the objections made by counsel for the defense. The court's reason for sustaining the objection made by counsel for the state was good enough, under the circumstances, and counsel ought to have been satisfied with it without any argument. The only cause of aggravation which the court had, as against Mr. Rochester, was that he was doing what attorneys often do unnecessarily, viz. insisting upon the court's allowing an exception, when all that an attorney has to do in any case is to take an exception. Evidently, upon the record (and we have recited it all), all that was necessary or proper, in the presence of the jury, was a quiet word of admonition, and the case would have proceeded as before. But the appellant's interest in the matter is not that his attorneys were summarily dealt with, and one of them fined excessively, considering the facts, and ordered. into the instant custody of the sheriff. His cause of complaint is that all this took place in the presence of the jury, and with such an exhibition of feeling on the part of the court that the jury, which is an instrument most sensitive to every impression coming from the court, must have reasoned that appellant's counsel had been guilty of some very grave offense in the conduct of his case, to their material depreciation as fair and reputable attorneys. In cases of so great gravity as this, such conduct on the part of the trial court will not do, and when it occurs the least that an accused person can demand is that he be given an opportunity for a hearing of his case before a jury not subjected to such influences.

The theory of the state was that, as the result of a long contest between neighbors over the maintenance of a road through government land settled upon by White and the Robinsons, the four persons accused of the homicide, which included the senior Robinson, one of his sons, and an employé named Livingstone, had conspired on a certain day to waylay and assassinate Schultz and one Smith (who was killed at the same time), who were partisans of those seeking to maintain the road in a certain locality. Nobody witnessed the crime but those who were engaged in it, and, aside from admissions made by the defendants that the younger Robinson and Livingstone had fired the fatal shots, the state's case depended entirely upon circumstantial evidence; the fact of the shooting, the presence of all the defendants, and the condition of the ground being relied upon to establish the confederation of the defendants, and the killing by lying in wait. The shooting took

place shortly after noon on a day succeeding a night during which there had been a light fall of snow. Several witnesses testified to having visited the place where the two bodies were found, while they were still there, and that the snow for a considerable space about them was smooth and undisturbed, except where broken by the tracks of the two men, who must, according to this evidence, have sunk down instantly, dead, from the effect of rifle balls shot clear through their bodies. Smith lay prone upon the ground, but Schultz had simply sunk down into a sitting posture, and remained thus until found a few minutes later. Three

axes were found close to the place where the two men were. The defense contended that the snow was not undisturbed, but was all trampled over, and that the position of Schultz's body was not as represented. All of the defendants went upon the stand, and agreed in their statements that upon the day in question White and the elder Robinson had gone out a short distance from the former's house for the purpose of obstructing the road by felling trees therein, and putting up some bars; that, while so engaged, Schultz and Smith came to the place where Robinson was putting up the bars (their purpose in going there being to chop out and clear away the obstructions in the road, as proven by the state), and assaulted him; that Robinson made such outcry that White came to his rescue, and was immediately attacked by Schultz with his ax; that being driven to an extremity, and in danger of being killed by Schultz's ax, White, lying upon the ground, shot at him with a 22-caliber revolver which he had, but did not disable him; and that at this moment, when both White and Robinson were in imminent danger of their lives, the younger Robinson and Livingstone came along from a hunting excursion, and, seeing the position of affairs, shot and killed both men. Robinson, Sr., had a slight cut in the head, and White had a slash in the muscles of the forearm, which they declared were made by their assailants, but which the state maintained were selfinflicted. Schultz had a large bruise on the side of his head, which White asserted he made with the flat of his ax in the affray. The four defendants, immediately after the occurrence, went to Snohomish, and surrendered themselves to the sheriff; claiming not, as yet, to know that Schultz and Smith were dead. Upon the trial, Robinson, Jr., and Livingstone stated unreservedly that they fired the only shots, except those from the small pistol of White; Livingstone admitting that he had shot Schultz, for causing whose death the information was filed.

Under these circumstances, it was hardly proper for the court to say to the jury, upon the separate trial of White, that if they believed that he fired the fatal shot into the body of Schultz, etc., they might find him guilty. The theory and contention of the

state were that he had stood by, and procured, counseled, aided, and abetted the shooting by the two boys; and the evidence all tended to support that position, rather than that White had himself done any of the fatal shooting. Instructions should be made to fit the evidence, and not roam beyond it into the field of general probabilities. course, the crime would be the same in either case; but the covering of so much unnecessary ground tends to confuse jurymen, by making them forget what is really applicable.

Of

Instruction 10 did not state the law correctly. It was as follows: "You are further instructed, gentlemen of the jury, that if the killing of the person mentioned in the information is satisfactorily shown by the evidence, beyond a reasonable doubt, to have been the act of the defendant, then the law pronounces such killing murder, unless it appear from the evidence that circumstances existed excusing or justifying or mitigating it so as to make it manslaughter, as explained in these instructions." This charge could stand in any case only with the qualification that the kind of murder presumed from the mere fact of homicide with a deadly weapon is murder in the second degree, and the only excuse which the state offers for it is that the jury found appellant guilty of murder in the first degree. State v. Payne (filed Jan. 10, 1895) 39 Pac. 157. There are cases where the charge here given has been sustained, when closely connected with fur ther instructions concerning both degrees of murder, and the classes of facts necessary to support each, but there was nothing of that in this case. Murder in the first and murder in the second degree were defined, it is true, nearly in the language of the statute, but nothing more. But we do not concur in the decisions alluded to. When the court tells a jury that from certain facts the law pronounces a prisoner guilty of murder, it is at least as likely as not that jurymen will take the word in the popular sense, which is that "murder is a hanging matter," and that the crime in the first degree is meant. Nor would the charge, if properly qualified, be applicable to the case on trial, because nobody claimed, and the evidence did not pretend to show, that the killing of Schultz was the act of White, but the act of Livingstone or Robinson, Jr., aided and abetted by White. The fact that the statute permits an accessory to be accused and tried as a principal does not do away with the rule that the charge must be appropriate to the evidence.

The twenty-eighth charge contained in substance the matters held objectionable in Leonard v. Territory, 2 Wash. T. 381, 7 Pac. 872, on the point of reasonable doubt. The twenty-seventh charge contained all that was necessary on that subject.

The forty-second charge was correctly given, under State v. Nordstrom, 7 Wash. 506, 35 Pac. 382, in so far as it told the jury that they had a right to consider the interest