Rasnake v. Commonwealth , 135 Va. 677 ( 1923 )

Sims, J.,

after making the foregoing statement, delivered the opinion of the court.

There are a number of assignments of error. The questions presented thereby, so far as deemed material, will be disposed of in their order as stated below.

1. Did the trial court err in admitting in evidence the statement of Maude Owens that the boy Perry Wagner “was screaming and crying” as he came up the road from the place at which he had just met the accused, Rasnake and Bumgardner?

The question must be answered in the negative.

It is urged in behalf of the accused that this testimony ■“left the jury free to assume that this child, who had come from the direction in which petitioners had gone, had been mistreated by petitioners in some way.” That—“it tends to prove nothing relevant to the case íjí M

The mistreatment of the boy, which this testimony tended to prove, was that testified to by the boy and denied by both of the accused. It was a part of their wanton and reckless conduct, which tended to show that their condition of mind, immediately preceding the killing, was one which displayed hearts “devoid of social duty and fatally bent on mischief”—(a very ancient definition of a condition of mind which evidences the existence of malice). This evidence was therefore relevant and properly admissible. /

In Muscoe’s Case, 87 Va. 460, 12 S. E. 790, the trial ■court permitted a witness to testify that shortly before the homicide the accused said to the witness, in parting from him: “Buster, I feel hot; I feel like I could shoot-a man and make him jump so high before he touches-the ground” (indicating the height by his hand), and— “Don’t tell me to take care of myself. Tell the people-that I pass by to take care of themselves.” This court, in holding that theré was no error committed in the admission of such testimony in evidence, said this: “We are of opinion that this testimony was properly admitted. Coming, as it did, almost immediately before the killing, it shed light upon the condition of the prisoner. It may not be admissible strictly as evidence of intention or of threats, but it certainly shows that the prisoner was in a reckless frame of mind and ready to-use the weapon with which he was armed upon none or the most trifling provocation.” .Citing a number of' authorities.

2. Did the court err in refusing to admit in evidence the - testimony of one Caney Puckett and of one Jake Robinett, to the effect that a short time before* the deceased, Rufus Sutherland, was killed, Puckett-was on his way to the home of Bige Wagner (which, as-aforesaid, was on the land owned or controlled by the* deceased) and met the deceased and Robinett, and. asked Robinett if he had seen anything of Mr. Wagner that morning; whereupon the deceased turned, in an. angry manner, upon Puckett, and said: “What in the-hell do you want to know where Bige Wagner is?” and,, with an oath, asked him what his business with Wagner-was? That thereupon Puckett said that he wanted to-see Mr. Wagner about buying some hogs; whereupon, the deceased, with an oath, told Puckett he had better get out of that hollow, that he had no business there,, that if he didn’t go deceased would piit him in jail, or. words to that effect. That thereupon Puckett left.

The question must be answered in the negative..

The authorities are not in harmony upon the question whether particular instances of violent conduct on the part of the deceased, disconnected with the homicide or with the occasion on which the homicide was committed, is admissible in evidence in behalf of the accused upon the claim of self-defense. The authorities are, for the most part, harmonious in the holding that, under a claim of self-defense, where the necessity of the accused’s conduct is to be judged by the facts as they reasonably appeared to him, he may give in- evidence whatever he knew of the character, threats and other prior conduct of the deceased, which may tend to show that under the circumstances of the homicide the deceased might reasonably have been expected to act as the accused claims that he did. 2 Bish. New Cr. Proc. (4th ed.) see. 610; State v. Hardin (W. Va.), 112 S. E. at p. 402, and authorities cited; Poer v. State (Tex. Cr. App.), 67 S. W. 500. But Mr. Bishop, in the learned work, just cited, in section 611, says this: “What was unknown to the defendant cannot be thus shown; because it is impossible he should have acted upon it.” Mr, Wigmore, however, takes the position (which is strongly supported in reason and, as he shows, is also supportéd by an increasing number of the decisions) that the kind of evidence under consideration is admissible when there is other evidence tending to support the claim of self-defense, on the further and distinct ground that it tends to show “what the deceased probably did.” That for this reason such evidence is, in such case, admissible, although unknown to the accused at the time of the homicide. 1 Wigmore on Ev. secs. 198 and 63. See also to the same effect State v. Waldron, 71 W. Va. 1, 75 S. E. 559. But, as laid down by Mr. Wigmore, the number of such instances of violent conduct, which will be permitted to be introduced in evidence, is to be controlled by the discretion of the trial court. And, in reason, this must be so; for otherwise the trial may be unduly prolonged and the issues in the particular case may be too much confused by testimony concerning matters which are chiefly collateral and are only admissible as having what, after all, is but a remote bearing on the issue directly involved, namely, what was the conduct of the deceased at the time of the homicide. Upon the admissibility of such evidence as that in question and concerning the discretion of the court to control the number of instances admitted in evidence, in 1 Wigmore on Ev., sec. 198, supra, this is said: “When the turbulent character of the deceased, in a prosecution for homicide, is relevant (under the principle of section 63 ante), there is no substantial reason against evidencing the character by particular instances of violent or quarrelsome conduct. Such instances may be very significant; their number can be controlled by the trial court’s discretion; * * * .”

The trial court admitted in evidence testimony of the accused, Rasnake, that he knew that the deceased was a quick, high-tempered, dangerous man, and had known and heard of his striking other people suddenly; that he had heard of his striking the accused, Bumgardner; that the deceased and Mr. Alfred Johnson had a fight once. The court admitted in evidence the testimony of the accused, Bumgardner, that the deceased knocked him “in the head once with a gun;” that the deceased had the general reputation of being a very dangerous man.' The court also admitted in evidence the testimony of A. L. Grizzle, a witness for the accused, that the deceased would “hit you all right” when one “didn’t know” he was going to do it, or “had never said a word” to justify it; that the witness knew of some people whom the deceased had done “that way;” stating that the ■deceased struck Mr. A. B. Kiser; that witness saw the deceased “throw a rock one day, without any provocation at all,” at witness’ brother; that these instances he knew of his own knowledge; that witness had heard of others, some of which he could remember and others he could not; that the deceased shot a dog of an old gentleman whose name witness could not remember; that the deceased was himself shot by a “Gibson boy;” that witness heard of the deceased attacking H. P. Laforce. The court permitted Jake Robinett, a witness for the accused, to testify that the general reputation of the deceased was that he would strike one without apparent provocation, and, on cross-examination, to testify that witness was then at work with a man, Tom Fletcher, who claimed that the deceased “knocked him in the head with a rock when he did not do anything to him;” that A. B. Kiser told witness the same thing; that “a long time ago” (12 or 13 years as appears from another part of the testimony) witness “met some fellows who had been in a play over there” (at Clinchfield) “one night and five or six in their bunch * * all had their heads pasted up with tape and things and (witness) began asking who hit them and they said Rufus Sutherland hit them with a poker and a shovel, every man (witness) asked;” that -Ellis Artrip was one of these parties. The court also admitted the testimony of Worley Smith,, mentioned in the statement preceding this opinion.

In view of the admission of all of such testimony we think there was no abuse of the discretion of the court in the refusal to admit the additional testimony concerning the Puckett incident in question. It would have been preferable for the court to have admitted in evidence the incident in question and to have excluded some of the testimony as to other incidents of the turbulent conduct of the deceased which were more remote in time; but in view of the evidence admitted, which is above mentioned, and other evidence admitted as to the character of the deceased existing at the time of the homicide, which will be presently mentioned, we think the record shows that there is no probability that either of the accused were injured by the non-admission of the evidence in question; and, hence, in no aspect can we consider the action of the court in'refusing to admit it as reversible error.

■ [4] 3. Did the court err in refusing to allow the ac? cused, Bumgardner, to add to his testimony, which stated the fact that the deceased had “knocked him in the head once with a gun,” the further testimony that, subsequently, the deceased told witness’ mother to tell his father that deceased did not want any hard thoughts about the incident; that he had been drinking when it occurred; that it was “a little drunken racket and that if he had not been drunk” it would not have occurred. And did the court err in refusing to allow the mother of the accused to testify to the same effect?

The questions must be answered in the negative.

The court merely declined to allow these witnesses to go into the details of the alleged reconciliation, but did allow Bumgardner to testify that the incident occurred about three years before the trial and that about a month after the incident he became very friendly with the deceased and that that relation continued up to the time of the homicide. The accused did not offer the mother’s testimony to these facts; but under the ruling of the court could have done so. Hence, as the accused either got the benefit, or could have done so, of the substance of all of the testimony in question which was excluded, there was no error in the action of the court excluding the details of it.^/

4. Did the court err in changing the form of a question to one of the witnesses for the defense, as will .appear from the following:

The question was:

“Mr. Grizzle, do you know the general reputation of Rufus Sutherland in the community where he lived for being a quick-tempered, dangerous man?”

To which question the Commonwealth’s attorney objected, and thereupon the court said:

“General reputation as being a dangerous, overbearing, quarrelsome man.”

To this amendment of the question the accused, by •counsel, excepted; whereupon the court said:

“If you know his general reputation state it.”

The question must be answered in the negative for the reason-that the same testimony was given by the witness as if the question had remained and he had .answered it in its original form.

Following the last above quoted statement of the -court to the witness, after a colloquy between counsel .and court, and some statements of the witness which .are immaterial upon the consideration of the question :now before us, the witness testified as follows:

“A. What people said, he was a quick-tempered man .-and would hurt you, hit you with anything.

“Q. Did he or not have the reputation of being a man who would strike you suddenly and without any apparent provocation?”

(After some colloquy between counsel and the court -about the propriety of the latter question, the court •said to the witness—“You can answer it that way.” Whereupon the witness answered the last question as -.follows):

“A. Yes, sir.”

On cross-examination.

“Q. You say lie had the general reputation of being a man who would knock you in the head for nothing, that is about the substance of the question. That was his general reputation all over that country?

“A. It was stated that way, at least it was my understanding, that is I understood him to be that, kind of a man.”

Following this witness there were three other witnesses for the accused who were asked and answered the precise question under consideration, in its original form; two of them answered it, in substance, and almost in the same language as the witness Grizzle testified on the same subject; the remaining witness testified on the subject with some qualification of an affirmative answer.

5. Did the court err in refusing to allow two-witnesses for the defense to answer the following question? “Do you know the general reputation of Rufus Sutherland in the community in which he lived for being* a man who visited and kept on his premises lewd women for immoral purposes? (there being an avowal by counsel that if permitted to answer the witnesses would have both stated that the general reputation of the deceased was “that he had kept and had kept for a number of years a number of lewd women which he-visited for immoral purposes, and that (he) supported and provided for some of them, among others MaudeTrivett and Maude Sexton”).

The question must be answered in the negative.

Counsel for the accused correctly take the position, that the existence of illicit relations between Ida Wagner and the deceased could be shown as evidence tending to show bias in her testimony in favor of the prosecution; and the following authorities are cited to sustain the position, namely: Underhill Crim. Ev., see. 248, p. 454; Leach v. Commonwealth, 129 Ky. 497, 112 S. W. 595; Perdue v. State, 126 Ga. 112, 54 S. E. 820; Brown v. State, 119 Ga. 572, 46 S. E. 833; 2 Wigmore on Ev. secs. 948-9; Hanriot v. Sherwood, 82 Va. 1, at p. 16; 28 R. C. L. sec. 243, p. 658; 1 Greenleaf on Ev. (16th ed.) sec. 450, p. 575; 40 Cyc. p. 2656; Commonwealth v. Gray, 129 Mass. 474, 37 Am. Rep. 378; State v. Neiburg, 86 Vt. 392, 85 Atl. 769; State v. Snyder, 86 Vt. 449, 85 Atl. 984; State v. Eggleston, 45 Ore. 346, 77 Pac. 738; and Sutton v. State, 124 Ga. 815, 53 S. E. 381, 383. These authorities, however, only go to the extent of holding that the illicit relations of a witness to the deceased, in a case of homicide, just as any other relations of a witness to parties to a suit, likely to influence the testimony of the witness, may be shown by proper evidence; and that such evidence is always admissible, as tending to show the bias of the witness, whether elicited upon the examination or cross-examination of the witness, or, where the witness denies the existence of the relationship in question, it is the proper subject of independent testimony as tending to show bias on the part of the witness.

The court, in accordance with these authorities, admitted in evidence testimony introduced in behalf of the accused, in which one witness stated (as of her own' knowledge) that illicit relations existed between the deceased and Mrs. Wagner, and the testimony of other witnesses that the general reputation of Mrs. Wagner for chastity was bad.

The court also, it may be here mentioned, allowed the accused to introduce testimony of witnesses who stated that the general reputation of Maude Owens for chastity was bad.

None of the authorities cited as aforesaid, however, nor does any other with which we are acquainted, hold that particular facts, such as those mentioned in the question under consideration, can be proved by general reputation on the subject. On the contrary, it seems plain that the elementary rule that particular or specific facts cannot be proved by reputation evidence, rendered the evidence sought to be elicited by the question under consideration inadmissible. 1 Greenleaf on Ev. (15th ed.), sec. 138, p. 202; 2 Wigmore on Ev., sees. 1421 to 1626, inclusive, and especially secs. 1421, 1583, 1585, 1586, 1610, 1626. As appears, indeed, from the citations from Wigmore on Evidence just made, the facts in question do not fall within any of the exceptions to the hear-say rule, so as to permit them to be established by reputation. Hence they fall within the ban of that rule.

The accused did not offer to introduce evidence of the general reputation of the deceased for chastity, which they might have introduced under the rulings of the court.

6. Did the court err in striking out the italicised portion of the following instruction, asked for by the accused, and in giving the remainder of such instruction, namely:

“The court tells the jury that, in determining the weight to be given to the testimony of different witnesses in this case, the jury should consider the relationship of the witnesses to the defendants and to the deceased, if the same is proved; the illicit relation of certain of the witnesses with the deceased, if the jury Relieve that any such illicit relations existed; their interest, if any, in the result of this case, their temper, feeling, bias, or prejudice in favor of or against the defendants or the deceased, if any has been shown; their demeanor while testifying; their apparent intelligence, and their means •of information; and to give such credit to the testimony •of such witnesses as under all the circumstances such witness seems to be entitled to.”

The question must be answered in the negative.

It is earnestly argued that the accused had the right to have the minds of the jury directed to the specific •evidence in the case (citing Karnes’ Case, 125 Va. 758, at page 768, 99 S. E. 562, 4 A. L. R. 1509, and Burks’ Notes on Crim. Proc., sec. 258); and that the action of the court in striking out the reference to the illicit relations of certain of the witnesses deprived the accused of the benefit of having the attention of the jury called to the consideration of such relations as tending to •show the bias of the witnesses. We do not agree with the view that the court’s action had the result claimed. We think that the instruction as given was sufficiently -specific to direct the attention of the jury to the consideration of the evidence upon the subject of the illicit relations of the witnesses affected, along with any other •circumstances of temper, feeling or prejudice, as tending to show their bias. The witnesses affected were •only Ida Wagner and Maude Owens. The Sexton and Trivett women did not testify in the ease. To have •singled out the relations which were illicit in such an •instruction, as the eliminated portion of the instruction would have done, would have given undue emphasis to the effect of that kind of relationship and have tended to mislead the jury into considering that such relationship had a peculiar and unusual effect in biasing a witness.

7. Did the court err in the following named :action with respect to the giving and refusing of instructions?

The court gave the following instructions at the request of the Commonwealth:

“No. 11. The court instructs the jury that in considering whether or not Ross Bumgardner is a principal in the second degree in this case, present, aiding, abetting, counseling, advising or consenting to said killing-of Rufus Sutherland, they may consider all the facts and declarations of the said Ross Bumgardner at the time, of said killing, both before and after said killing, and if they believe from the whole evidence that he was aiding, consenting, and abetting in said crime, then he is. guilty in this ease.

“No. 12. The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that Toy Rasnake wilfully, maliciously, deliberately and premeditatedly shot and killed Rufus Sutherland in the county of Russell and that the dedendant, Ross Bumgardner, was present aiding, abetting, counseling, advising or consenting to said crime, that then both Toy Rasnake and Ross Bumgardner are equally guilty of murder in the first degree in this ease.”’

At the request of the accused the court gave the-following instruction on the same subject:

“No. 8. The court further instructs the jury that, there can be no such thing as an aider and abettor unless, there is a principal in the commission of a crime; and, it is, therefore, necessary for the Commonwealth to-prove beyond all reasonable doubt that the principal is guilty of the offense charged before the jury can consider the question as to whether there is an aider or abettor. And the jury is instructed that mere presence is not sufficient to constitute one an aider and abettor, and that whenever reasonable doubt exists as. to the intentions of one charged as an aider and abettor, he cannot be found guilty as an aider and abettor;: and the jury is further instructed that mere consent is-, not sufficient to constitute one an aider and abettor,, but before a defendant charged as an aider and abettor in the commission of a criminal offense can be convicted, it is incumbent upon the Commonwealth to prove beyond all reasonable doubt that the defendant so charged as an aider and abettor was present and shared in the criminal intent of the principal.”

The accused requested the court to give the following further instruction:

“No. 9. The court further instructs the jury that mere presence and consent alone are not sufficient to constitute an aider or abettor in the commission of a. crime in the meaning of the law.”

The court refused to give the last named instruction, and, in lieu thereof, gave, on its own motion, the following further instructions:

“(A). The court instructs the jury that to constitute an aider and abettor it is essential that the aider and abettor should share the criminal intent of the-principal or party who committed the offense.

“(B). The court instructs the jury that principals in the first degree in every murder or other crime are those who are the actors or actual perpetrators of the crime— those who are the immediate perpetrators of the act. That principals in the second degree are those who did not with their own hands commit the act, but were present aiding and abetting it. It is not necessary in order to make a person a principal in the second degree-that he actually participate in the commission of the crime. The test as to whether or not he is principal in the second degree is, was he encouraging, inciting, or in some manner offering aid or consent to the crime? A person present • lending countenance, or otherwise aiding, while another does the act, is principal in the second degree, and liable to the same punishment as if he were principal in the first degree and actually-committed the crime.”

The question must be answered in the negative.

When the instructions in question, which were given, are all read together, and in the light of the evidence in this case, we think they fully and accurately, instructed the jury upon the subject of what conduct on the part of Bumgardner constituted him an aider and abettor in the commission of the crime 'of the murder charged.

Instruction 9 offered by the accused was properly refused for the reason that it was not in accord with the evidence, in its assumption that the jury could consider it a case in which there was no evidence beyond that of the mere presence and consent mentioned. Indeed, instruction No. 2 given was open to the same objection, and was too favorable to the accused in that its language was not sufficiently guarded in the particular just mentioned. This is not a case in which there was no evidence beyond that of the mere presence and consent of Bumgardner. There was evidence of the most damning character, since it came from admissions in the testimony of both of the accused, tending to show that the accused, Rasnake and Bumgardner, on the morning of the homicide, united to accomplish the common purpose of killing the deceased, and that thereafter, until the deed was done, Bumgardner was present with Rasnake, lending him countenance and encouragement by the overt acts of having armed himself, by being present ready to help should necessity require it and by other conduct evidencing a criminal intent in entire accord with such intent on the part of Rasnake. The evidence shows beyond question that the accused both armed themselves with the intention, while they were at South Clinchfield, to seek the deceased that day, with the design of killing him, as the jury were warranted by the evidence in believing. They did together seek him, found him, and Rasnake, with Bumgardner standing by, ready to assist if needed, and with his will concurring in the deed, without any overt act of the deceased at the time giving any provocation, and when the deceased stood unarmed and defenceless, shot him and shot to kill—according to the direct evidence for the Commonwealth and inferences therefrom which the jury were warranted in drawing. The claim of the accused that when at South Clinchfield they formed the design aforesaid and prepared for the carrying of it out, their purpose was to see the deceased about a sheep, is absolutely refuted by the fact, developed in evidence, that at that time, so far as the sheep was concerned, they had no thought of seeing the deceased on that subject; that Rasnake’s plan about hunting and killing the wild sheep would have taken him in a different direction from that of the home of the deceased; and that even according to the testimony of and for the accused on that subject, the suggestion that they see the deceased about the sheep did not come to them until after they had formed the design aforesaid of seeking the deceased and had armed themselves and had set out from Mrs. Sutherland’s upon the execution of that design. This being so, why the falsehoods in the testimony of both of the accused on the subject of the purpose for which they got the pistols, and the laboriously attempted building up of the sheep-hunt defense, which, when the facts developed in evidence, toppled like a house of cards? Why the admittedly false statement to Edmunds of the reason for borrowing the pistol of him? When to the utter breakdown of the sheep-hunt defense is added the other circumstances in evidence, it is plain that there was ample evidence to warrant the jury in finding that Rasnake was guilty of the wilful, deliberate and premeditated murder of the deceased and that Bum.gardner aided and abetted him in the commission of that crime.

Instructions A and B, given by the court of its own motion, are in the exact language of instructions approved by this court in Horton’s Case, 99 Va. 848, 38 S. E. 184.

It is true that it is well settled that the mere presence and consent alone are not sufficient to constitute one an aider and abettor in the commission of a crime. 1 Bish. New Cr. Law (8th ed.), sec. 633; Kemp’s Case, 80 Va. 443, at p. 450; Wooden’s Case, 117 Va. 930, 86 S. E. 305, Ann. Cas. 1917D, 1032; 1 Wharton’s Cr. Law (11th ed.), see. 249, p. 321. But that is so because in such case there is no direct or circumstantial evidence (such as an unequivocal overt act or acts) which the law can take hold of to show that the will of the person in question contributed to . the commission of the crime. ' Where, however, the evidence shows that two (or more) persons are together in execution of a common plan or purpose which is unlawful, the situation is wholly different. In such case there is the evidence of the common plan, which shows the criminal intent of them all; and the overt act, say •of one, in being present ready to assist if needed while .another of them commits the crime, which, with the proof of the common plan, evidences that both the will and deed of the former contributes to the commission of the crime; although such person takes no active part at the time of the final deed by which the crime is consummated. Such evidence the law can and will take hold of and it is abundantly sufficient to establish the guilt of the offense under consideration.

As said in 1 Bish. New Cr. Law (8th ed.), sec. 632:

“1. Will Contributing—This reasoning conducts us to ■the conclusion that every person whose corrupt intent •contributes to a criminal act, in a degree sufficient for the law’s notice, is guilty of the whole crime. Thus—

“2. Present—Countenancing * *■—All who are present at a riot, * * * or any other crime, if lending it countenance and encouragement, and especially if ready to help should the necessity require, are liable .as principal actors.”

In Kemp’s Case, especially relied on for the accused, ■at page 452 of 80 Va., this is said: “In all the evidence in this case (and there is no conflict of evidence in any .respect) there is not a circumstance disclosed tending in the least to show any agreement of formed design between the prisoner, Kemp, and the man, Whitehurst, who did the killing; * * nor that he in any manner ■aided or abetted in,, or assented to, the felonious act of Whitehurst, the sole perpetrator thereof; nor was there •a moment of time in which there could have been an •agreement between the real perpetrator and the prisoner. Nor is there an intimation of any agreement or •design-on the part of the prisoner to commit any other unlawful purpose. The testimony established nothing •except the mere presence.” Á wholly different case from that now before us.

The same is true of the facts in Wooden’s Case, supra, ■also relied on for the accused, and to the facts to which the other authorities just cited, likewise relied on for the accused, are applicable, in so far as the subject under -consideration is concerned.

8. Did the court err in refusing to set aside the verdict, as against evidence and without evidence to support it?

This question, too, must be answered in the negative.

The chief points urged in argument for the accused upon this question are the following:

(a). That the Commonwealth failed to show any motive for the crime on the part of the accused.

We cannot agree with this view of the evidence. Since the occurrences were all in a small rural community the jury were warranted in believing that the accused both knew the fact shown by one of the witnesses, for the accused, to the effect that the deceased had a-fixed and determined purpose to put an end to theillieit intercourse of the accused with the Sexton and Trivett women while they were on the. deceased’s-premises. Indeed, Bumgardner’s brother was present-on the occasion mentioned by this witness, so that-there can be but little, if any', doubt that Bumgardner- and Rasnake, his first cousin, living near by, were informed by this brother of the attitude of the deceased, if they did not already know of it. And whether the jury believed that this attitude of the deceased was due to jealousy on his part, or to some other, and possibly a-more laudable reason, is immaterial. The fact that the accused knew that the deceased stood in the way off their continued intercourse with these women, was a. sufficient motive for the crime.

(b). That the Commonwealth’s case rests chiefly upon the testimony of Ida Wagner, and, in a lesser degree, upon the testimony of Maude Owens; both of' whom, it is claimed, are shown by the evidence to be-women of lewd and unchaste character. If it were conceded that the jury considered that the character off these women-for chastity was bad; still, we cannot say that the jury were not warranted in believing that they told the truth touching the material facts to which they testified concerning the conduct of the accused. Their ■ credibility was a matter solely within the province off the jury.

(c). That Ida Wagner, soon after the homicide, told.. a witness for the accused that Bumgardner shot the deceased.

Ida Wagner denied this. Whether that was a fact, and if so, how far it affected the reliance to be placed on her testimony as to what in truth occurred at the time of the homicide, was for the jury to determine.

(d). That the testimony for the accused tended strongly to show that improper relations existed between the decease'd and Ida Wagner; that she was a biased witness; that the time and place of the killing rendered it incredible that it could have occurred as Ida Wagner said it did; and that the repeated performance of the raising and lowering of the pistol by Rasnake, detailed by her, is incredible.

There is nothing physically impossible in any of this. It all may have occurred just as Mrs. Wagner stated that it did. She is corroborated by the physical facts of the position of the body and the pick when first found by other witnesses who testified in the case; by the location of the fatal wound; and by the testimony of Ellie Coffee, so far as she saw what occurred. It is true that the testimony of both of the accused as to what occurred at the shooting was also in accord with these physical facts, if their statements to the effect that the deceased, after he was shot, walked backward to the place at which he fell, were true. What was the truth depends upon the credibility of these witnesses. Upon that the verdict of the jury is conclusive upon us.

9. There are a number of other assignments of error, all of them, as well as those disposed of in what we have said above, ably presented and argued by counsel for the accused, but as they present no novel, nor, indeed, any even debatable questions, when they are closely considered, we deem it sufficient to say that we have examined them all carefully and find no merit in any of them..

The case will be affirmed.

Affirmed.