7. Where, in a prosecution for uxoricide, a witness for the prosecution testifies that on a certain occasion deceased came to her house crying, it is proper to refuse to permit defendant on cross-examination to ask the witness concerning defendant's conduct towards deceased at a different time, as not being proper cross-examination. 8. It is not error to refuse to permit a witness to be asked on cross-examination, for the purpose of discrediting her testimony, whether her husband was not in the habit of whipping her, and whether she had not had trouble with him in regard to another woman. 9. Under 2 Comp. Laws 1888, § 4883, providing that in nomicide cases the testimony at the preliminary examination, when taken by a reporter, shall be transcribed and filed with the clerk within 10 days after the close of the examination, the failure of the reporter to file the transcript of the testimony does not prevent defendant from being put on trial, where he does not claim a continuance to procure a copy of such testimony. 10. 2 Comp. Laws 1888, § 5022, enumerates different causes for challenge to a juror for implied bias. Section 5024 provides that in challenges for implied bias one or more of the causes must be charged. Held, that in challenging for implied bias a challenge that "defendant challenges for cause" is properly denied, as being too general. 11. When, after a challenge to a juror for implied bias has been improperly denied, defendant peremptorily challenges the juror, he cannot afterwards complain. 12.2 Comp. Laws 1888, § 5024, disqualify ing a juror who has formed or expressed an unqualified opinion as to defendant's guilt or innocence, does not disqualify a juror testifying on voir dire examination that he had formed an "impression," but not an "opinion," as to defendant's guilt, and that, although it would take evidence to remove it, he could try the case impartially, and would give defendant the benefit of the presumption of innocence. 13.2 Comp. Laws 1888, § 5024, providing that a juror shall not be disqualified because he has formed an opinion based on newspaper report, if on oath he states that he can act impartially on the matters submitted to him, is not in violation of Const. U. S. Amend. 6, which guaranties to an accused a trial by an "impartial" jury. 14. In a prosecution of a saloon keeper for murder, a juror, testifying on voir dire examination that the fact that a person was a saloon keeper would influence him as to his credibility, is competent. 15. Under 2 Comp. Laws 1888, § 4925, requiring the names of witnesses examined before the grand jury to be indorsed on the indictment, the failure to so indorse their names does not per se render them incompetent. 16. The prosecution is not required to deliver to defendant the names of the witnesses to be called by it. 17. It is not reversible error in a prosecution to permit a juror, with defendant's consent, to act as an interpreter. 18. Exceptions to the charge, taken after the discharge of the jury, and without the consent of the prosecution, cannot be considered on appeal. 19. An exception that the court erred in de fining "malice,' without pointing out wherein the error lies, is too general to be considered on appeal. 20. However strong the evidence, it is proper to instruct as to the different degrees of murder. 21. Where instructions are asked in the aggregate, it is not error to refuse them, if any are exceptionable. 22. It is not error to refuse instructions already substantially given. Appeal from district court, Third district; before Justice G. W. Bartch. Charles Thiede was convicted of murder, and from the judgment entered, and an order overruling a motion for a new trial and in arrest of judgment, appeals. Affirmed. Cherry & Cherry, for appellant. The United States Attorney, for the People. KING, J. The defendant, Charles Thiede, was indicted for the murder of his wife, and on the 21st day of October, 1894, was found guilty, and on the 5th of November, 1894, his motion for new trial and arrest of judgment was overruled, and sentence of death was passed upon him. From the judgment and order overruling his motion, he appeals to this court. The record discloses numerous assignments of errors, and, as defendant's counsel urged each one with ability and great earnestness, not only in his brief, but in his oral argument, and because of the importance of the case, we feel that the points presented demand careful consideration. We will not discuss the assignments in the order presented, but group them somewhat with reference to their chronological order in respect to the trial. 1. It is claimed that the evidence is insufverdict is contrary to the evidence and to ficient to justify the verdict, and that the the law, and that the court erred in overruling defendant's motion for a new trial. This necessitates a brief review of the evidence produced upon the trial. The undisputed testimony shows the following facts: The wife of the defendant was killed during the night of Monday, the 30th day of April. 1894. The defendant, about half past 1 or 2 o'clock in the morning, awakened Jacob Lauenberger, and informed him that he had found his wife with her throat cut, lying near the defendant's saloon. Upon examination by physicians of the wound upon the person of the deceased it was found that the head had been almost severed from the body by a wound in the throat, made by some sharp instrument. The wound extended inward to the vertebrae, which obstructed the further passage of the weapon. That from the character of the wound death was inevitable and immediate. It was highly improbable, if not impossible, according wound could have been made with a pocketto the testimony of the physicians, that the knife, and highly improbable that it was made with a razor, but was of such a nature as would be made with a large knife, or similar instrument. The body of the deceased was found lying within 3 to 5 feet of the southeast corner of the defendant's saloon; and about 30 feet further east was a pool of blood, with evidence of a struggle, indicating that the deceased and her assailant had engaged in a struggle there, and that the deceased had received a serious, if not a fatal, wound at that place; and from that point to where the body lay there were blood marks, and another pool of blood where the body lay. The defendant was in or near the saloon during the night until he went with the witness Lauenberger to Murray for a physician, and the saloon was lighted during the whole of the night. The defendant had blood upon his hands, and there was blood upon his clothing. The defendant, when he awakened Lauenberger, and thereafter, when going for a physician, and after his return, made manifestations of grief at the loss of his wife. The defendant and his wife were about 33 years the defendant was about 10 o'clock Monday evening, when she was seen sitting outside of the saloon of the defendant. During the night, about 1 o'clock, the defendant aroused the witness Lauenberger, and informed him that his wife had been killed. The night was very dark. Dr. Ferrebee, the physician called, testified that he was close to the body before he could discern anything, and had to touch it before he knew it was a human body. The witness Lauen tor, or alarming any one else than himself and wife, the defendant took a light, and scanned the outside of the south door of the saloon, and the side of the building adjacent thereto, as if looking for something upon the door and wall; that fresh spots of blood were found upon the outside of the door next day. Witnesses testified that the defendant said when he found his wife lying upon the ground that she said, “Oh, Charley!" while the only medical witnesses in the case all agreed that it was impossi ble for the deceased to speak or articulate after the wound was inflicted. One or two witnesses testified that after their return to the saloon with the doctor, and after the body of his wife had been carried into the saloon, the defendant had gone several times from the saloon before daylight, remaining at one time as long as 20 minutes. It was testified that a large knife, used by the defendant in the saloon, was missing, and could not be found; and it was testified to by the sheriff and his deputy that on the morning after the murder, when they went there, the defendant stated to the sheriff that he had killed his wife during the night. The defendant testified that when he found his wife lying upon the ground he undertook to lift her up, and so got the blood upon his hands and clothing; that when he undertook to raise her a sound was made like "Oh, Charley!" and that that was what he said to the witnesses who testified that he said his wife said, "Oh, Charley!" He denies that he made the statement to the sheriff that he killed his wife, and says that what he said was, "They killed my wife." of age, and for several years prior to herberger testified that before going for a docdeath the husband had slept at his saloon, and his wife, with her child, about 10 years of age, at the dwelling house, a short distance from the saloon. A number of witnesses testified that the defendant ill treated his wife, and the course of treatment had continued for a number of years; and one witness testified that the defendant, about four months prior to the death of his wife, had expressed a desire to get rid of his wife, saying that she was too good for his business. The defendant was a witness in his own behalf, and denied the ill treatment, and denied that he had expressed a desire to get rid of his wife; and there were other witnesses introduced by the defendant, whose testimony tended to corroborate the defendant, and contradict the testimony of some of the witnesses for the prosecution. We do not deem it necessary to review all the evidence on this point, but there certainly was sufficient evidence to warrant the jury in coming to the conclusion that the defendant and his wife had lived unhappily for years, and that the defendant had frequently abused and ill treated his wife, and that without any excuse, so far as the evidence discloses. The testimony on behalf of the prosecution shows that on Sunday evening preceding the murder the defendant and his wife had quarreled in the garden, after dark; that they were called into the house of the witness Lauenberger; that when there the defendant slapped his wife in the face, and ordered her to go home, and that she refused to go, giving as a reason that, if she went home, the defendant would murder her that night; that soon thereafter she left Lauenberger's house, and the defendant and his child and the witness Lauenberger went to defendant's saloon; that while there the defendant's wife sought admittance to the saloon, which was denied by the defendant; that the defendant and his child slept in the saloon that night; that about this time the defendant's wife went to the house of a neighbor, crying, and apparently afraid; that about 10 o'clock that night she was seen on the public highway, a short distance from the saloon, as if hiding and alarmed. On Monday morning the child went to school, and was told to go home with the teacher, and she remained with her Monday night. The last seen of the defendant's wife by any witness other than The only question upon this branch of the case for us to determine is whether there is evidence in the record sufficient to support the verdict. It was for the jury to say whether they believed the testimony of the witnesses, and what weight they should give to the testimony of the witnesses for the prosecution and for the defense, and to the testimony of the defendant himself. There is certainly nothing in the record that would warrant us in saying that the jury should not have believed the testimony of the witnesses for the prosecution. There can be no doubt but that the defendant's wife was murdered, and, while the evidence was largely circumstantial, it certainly was sufficient to warrant the jury in finding that the defendant was the person who committed the crime. It appears from the evidence that a large number of men, belonging to what was known as the "Industrial Army," were camped less than a mile from the defendant's saloon; and it is claimed that there were many lawless men among them, and that their presence was sufficient to raise a doubt as to who committed the crime. But it is not shown that any of these men were near the saloon of the defendant that night, before the murder, or were in any way connected with the crime;. and the absence of motive, and the improbability of any of these men carrying upon his person a weapon such as would be likely to inflict such a wound, or committing such a crime within a few feet of a lighted building, and the likelihood that the defendant would have heard his wife's screams if anybody else had committed the murder, were matters for the consideration of the jury; and they could very properly say that, under the circumstances, the presence of these men in the neighborhood did not relieve the defendant from the effect of the evidence against him, but that the presence of these men furnished him with an opportunity to take his wife's life, and throw suspicion upon others than himself. 2. It is insisted that the court erred in admitting incompetent, irrelevant, immaterial, and hearsay evidence: (a) In permitting certain witnesses to testify to hearing deceased scream upon numerous occasions, to seeing bruises upon her face and body, to seeing her cry upon several occasions, and to observing her when she appeared alarmed and frightened,-without connecting the defendant with the circumstances, or the alleged acts of cruelty towards the deceased. It is conceded by defendant's counsel that "in cases of marital homicide ill treatment and abuse by the husband to his wife may be shown in a general way for the purpose of proving malice or motive, but it is incompetent for any other purpose." It is evident from the record that the sole purpose for which this testimony was offered was to show defendant's malice towards his wife, and point out the motive for the homicide. Psychic phenomena so often appear that scientists sometimes despair in their efforts to trace ordinary and natural sequence in mental concepts. Still the accepted rule must be that motive underlies human action. Uxoricide is unnatural. When it is charged, the first question suggested is, what motive inspired the deed? It is a most material question to be determined. If no reason or motive is found, one is loath to believe even positive and direct evidence incriminating the spouse. In the case at bar, evidence of kindness and affection towards the deceased, exhibited by the defendant, would have been material, and would have proven of great weight in his behalf; conversely, cruel treatment and evidence of hatred and ill will would weigh The very strongly against him. Various witnesses testified to maltreatment, and circumstances from which the prosecution sought to draw inferences that defendant's treatment of his wife was cruel and inhuman. Was the defendant sufficiently connected with these acts and circumstances? undisputed evidence was that defendant for years had not slept at home or with his wife. She had no relations in this country, was alone with her husband and their 10 year old daughter. Mr. Soderholm testified: That for about four years prior to the homicide he had resided within a few yards of the defendant's saloon and home. That shortly after taking up his residence there he saw the deceased one morning, running from her home, followed by defendant. She was screaming, and attempting to escape from her husband. While so doing, defendant caught her, threw her down violently upon the ground, and kicked her, and dragged her by the hair of her head. Witness interfered, and defendant then ceased. He also testified: That very often,-as frequently as once a week,-from that time to the time of her death, he had heard Mrs. Thiede crying and screaming at her home and the saloon when her husband would be there. That he had seen her, after dark, hiding near her home, when she appeared greatly frightened and agitated. Her face was always bruised, and often bloody. Before it had time to heal up, it showed signs of renewed external violence. Mrs. Soderholm testified that about 31⁄2 years before the trial she saw defendant beat his wife with a stick, and in October or November, 1893, about midnight, deceased's little girl ran to her home, and conveyed certain information, as a result of which witness and her daughter went to defendant's brewery, a short distance from his home and saloon. There they discerned deceased in the attic of the brewery, thinly clad. The night was very cold. She was softly crying to her daughter. Defendant was near, and when the witness and her daughter approached he drove them away, threatening to shoot them. She also testified to seeing deceased hiding, about 300 feet away from the saloon, one night when defendant was there. She was crying, and wringing her hands, and appeared to be greatly distressed. The witness further stated that she saw defendant chase his wife almost daily, and nearly every night when he was at home or at the saloon she could hear Mrs. Thiede screaming. The witness resided but a short distance from the saloon, described by her on the stand as being twice the length of the room in which the trial was being conducted. Mrs. Anderson, whose residence was very near the defendant's, testified to having seen bruises upon the deceased, and hearing screams from her home late at night; and about midnight, upon one occasion, she heard defendant and deceased near the saloon, and the latter was scream ing. She also saw Mrs. Thiede, the night preceding the homicide, hiding near her home. Jacob Lauenberger and his wife testified that the evening before Mrs. Thiede's death, and before the time when Mrs. Anderson saw her hiding, she and defendant had a quarrel in the garden adjoining Lauenberger's home. Mr. Lauenberger invited the deceased into his house, hoping to terminate the quarrel. The invitation was accepted, but defendant followed his wife into the house, and there struck her in the face two or three times, and insisted upon her going home. She refused, saying, "You will kill me to-night, if I go home." James Gilbert testified that about sundown on the evening that Mrs. Thiede was killed he was near defendant's saloon, and saw Mrs. Thiede run out of the saloon, looking very greatly alarmed and excited, and was followed by her husband. Other witnesses gave similar testimony to that given by the witnesses above named. We think the objections to this testimony were properly overruled. The evidence shows that no person other than the defendant was in a position to have inflicted the injuries described upon the deceased. Besides, defendant is clearly and definitely identified with the bruises and maltreatment to which deceased was subjected. It was the province of the jury to pass upon and weigh the evidence introduced by the prosecution showing ill treatment; but the court, passing upon the admissibility of the testimony offered to show the injuries and bruises upon defendant's wife, had to assume that the testimony was true. Counsel cites several cases in support of his contention upon this point, but, aside from the case of Territory v. Armijo (N. M.) 37 Pac. 1113, they have no application whatever to the case at bar. In the case of State v. Ling (Or.) 18 Pac. 844, there was not the slightest evidence connecting the defendant with the homicide or previous circumstances from which it might be inferred that malice was entertained by some persons towards the deceased. State v. Weaver (Iowa) 11 N. W. 675, is cited. There two persons were jointly indicted for murder, and the court held that it was incompetent, upon the separate trial of one, to show threats made by the other, several months before the crime was committed, in the absence of any evidence tending to show a conspiracy, or any concert of feeling or action prior to the conflict resulting in the murder. The evidence in the case of McBride v. People (Colo. App.) 37 Pac. 953, showed that the deceased and her husband engaged in frequent drunken carousals, but failed to show the cause of her death. The corpus delicti was not proven. As the court say: "In their periodical drunken conflicts, she was undoubtedly the victim of violence and abuse. The external injuries, if inflicted by him, may have affected, more or less, a person in a prostrate condition; but there was an utter lack of evidence that they caused death, and as to show how they were received is left equally in doubt." The case of Territory v. Armijo, supra, was strongly relied upon in the oral argument as completely vindicating defendant's position upon this question. It is not necessary to enter into a discussion of that case. It is sufficient to say that, while we do not assent to all the reasoning of the court, and to all the conclusions reached, yet that is clearly distinguishable from this case, and does not announce a different rule of evidence than that which governed the trial court in the case at bar, and which we uphold. (b) In permitting Dr. Benedict to testify that the defendant was a strong man. The evidence was that deceased's head was nearly severed from her body, and that one stroke of the instrument employed had accomplished this. The witness was acquainted with the defendant, and knew him to be possessed of great physical strength. Such a stroke, it was contended by the prosecution, could only have been made by a person possessing immense strength. While there are many strong men, yet, in view of the nature of the wound, and the expert testimony relative to the manner in which it was inflicted, we think it was a circumstance, the value of which, slight though it was, the jury were entitled to. Such testimony might be not only relevant, but very material, if the homicide had been committed at a time and place when only one strong person was in the neighborhood. Its importance diminishes in proportion to the increased number of strong persons in the vicinity at the time of the homicide. (c) In permitting the witness Montgomery to give his opinion as to how certain blood stains were occasioned. Counsel claims that he was not an expert, and therefore his testimony was incompetent. The record shows that no objection was offered, and no exception at any time was taken; but, even if there had been, we think it would not have been error. A person not an expert is competent to testify that certain stains resembled blood, that the stains were blood, that certain hairs were human, and that a person was intoxicated. Thomas v. State, 67 Ga. 460; Com. v. Dorsey, 103 Mass. 412; People v. Hopt, 4 Utah, 252, 9 Pac. 407; Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614. (d) Appellant contends that it was error to permit the prosecution to recall defendant's witness Annie Thiede after the defense had rested. After the direct examination of the witness, in which she stated that the defendant was kind to his wife, the district attorney cross-examined her, and asked her some questions with a view to showing defendant's cruelty towards the deceased. Rebutting testimony was offered by the prosecution, and permission was asked of the court that this witness might be recalled for further crossexamination, and in order to lay a foundation for impeachment. Permission was giv en, and objection made by the defense upon | the ground that it was incompetent, irrelevant, and immaterial, and not rebuttal. Witness was then asked, if she had not, at the time and place designated, made certain statements to Mrs. Soderholm concerning specific acts of cruelty upon the part of the defendant towards the deceased. It was not error in the court to permit this. Nor is there any merit in the two succeeding objections, wherein it is alleged that the court erred in permitting the witnesses Minnie Noble and Mrs. Soderholm to testify to conversations had with the witness Annie Thiede, the proper foundation having been laid. These are matters resting largely in the sound discretion of the trial court. Careful examination of the record shows that there was no abuse of this discretion. It was a material question whether the defendant abused his wife, and, Annie Thiede having denied that her mother was in the attic of the brewery in the nighttime, under circumstances indicating that she had fled from the wrath of the defendant, as testified to by Mrs. Soderholm and her daughter, and the witness having further stated that she never saw her father whip or strike her mother, Mrs. Soderholm was recalled, and testified in substance that Annie Thiede told her that defendant took the deceased from the attic and whipped her. This was not incompetent or hearsay evidence, nor was it collateral or immaterial, as counsel insists. was properly admitted by the court. It (e) Defendant made contradictory statements relevant to the manner in which the deceased met ber death. He also told Dr. Ferrebee that a man, to whom he had sold whisky during the night of the homicide, and while his wife was lying dead in the saloon, had killed her. The evidence tended to prove that whoever killed the deceased must have been partially covered with blood. Dr. Ferrebee examined the man thus accused the morning following the homicide; and when on the witness stand as a witness for the prosecution the doctor was asked whether he had found any blood stains upon this person. His answer was in the negative, and permitting the answering of this question is assigned as error. This evidence only became competent and material in view of defendant's statement. He was endeavoring to exculpate himself, and in doing so sought to direct attention to others. Testimony that would tend to contradict and impeach him, and at the same time explain away any circumstance tending to connect another with the killing, would be material. Certainly it would have been proper for the prosecution to have shown that this person accused by the defendant of having killed his wife was in a different part of the territory at the time of the homicide. The fact that several hours elapsed before the witness made the examination goes only to the weight of the evidence, and does not affect the question of its materiality. (f) Complaint is made because a note, written by the witness last named while he was at the defendant's saloon, a short time after the homicide, was admitted in evidence. During the trial the defendant's conduct immediately after the homicide was inquired into. Witnesses for the prosecution were examined with a view to show that the defendant himself desired the presence of the sheriff. The note in question was written by Dr. Ferrebee, and read over to the defendant before it was transmitted. It contained a direction that the sheriff be sent for. This direction, the witness testified, was inserted without defendant's request, but, when read to him, no objection was offered. In the light of the testimony, and especially that which was elicited on cross-examination of the people's witnesses, this, while not very material, was not subject to the objections urged. Lillie Birch, witness for the prosecution, testified that on the Sunday evening preceding the homicide deceased came to her home, weeping. On cross-examination she was asked if the following evening defendant and his wife had not appeared friendly towards each other. This was objected to, as not proper cross-examination, and the objection sustained. Appellant insists this was error. This exception is absolutely without merit. Witness testified to but one occurrence. If she had given evidence concerning general treatment of deceased by her husband, another question would have been presented. To negative maltreatment was a part of the defense. The witness could have been called by defendant, but it is clear the question was not proper on cross-examination. It is also urged that error was committed in sustaining objections to the questions asked Mrs. and Mr. Soderholm, witnesses for the people. The questions asked of Mr. Soderholm, it is apparent, were no propounded for the purpose of testing his credibility, but to condemn him before the jury by innuendo. The first question assumes that a man bearing the same surname had a fight with his wife, and the second assumes that some person had trouble with his wife in Burgetown, growing out of his having some woman in his room. These questions were not crossexamination, had no relation whatever to anything concerning which witness had testified in his direct examination, and they assume facts in regard to which there was not even a suggestion of proof. The questions asked Mrs. Soderholm were clearly incompetent. Counsel asked her if her husband was not in the habit of whipping her, and whether or not she had not had trouble with him "in regard to a woman being in the house." There is nothing in these questions that would tend in any manner to impeach the witness or test her credibility. The court asked defendant's counsel whether these questions were put in good faith. The reply was that he was relying upon in |