lowed by another, that the state must prove beyond a reasonable doubt both the perpetration of the crime and that defendant committed it, and that if such absence was shown it was an end to the case, the objection is removed. Freeman, 100-429.

A charge "that the burden of proof to show the guilt of the prisoner was upon the state, but when the state had made out a prima facie case, and the prisoner attempted to set up an alibi, the burden of proof was shifted, and that if the defence failed to establish the alibi to the satisfaction of the jury, they must find the prisoner guilty," is erroneous. Josey, 67-56.

3. CHARACTER.

While a witness as to character may, of his own motion, say in what respect the character of the person asked about is good or bad, the party introducing him can only interrogate him as to the general character of such person. Hairston, 121-579.

Where a character witness answers that he does not know the character of the party introducing him, he should be stood aside; the party introducing him has no right afterwards to ask him if he knows his character for truth and honesty. Wheeler, 104-893.

A witness introduced to impeach another witness can not be asked if, from his general character, he would believe the impeached witness on oath. Caveness, 78-484.

Where a witness, called to impeach the character of another witness, states that he knew his character when he lived in another place some two or three years ago, but does not know what his character is where he now lives, such evidence is not too remote, and its rejection is error. Lanier, 79-622.

A witness who gives another witness a bad character may be asked, on cross-examination to name the persons who had spoken disparagingly of the witness, and what was said. Perkins, 66-126.

A witness will not be allowed to testify as to character until he shall have first qualified himself by stating that he knows the general reputation of the person in question. Coley, 114--879.

Where the prosecuting witness testifies that the defendant told him that he sold the cotton taken from the barn of W, who was neither a party nor a witness, it was not error to refuse to allow defendant to prove that W was a man of good character. Staton, 114-813.

If a character witness is cross-examined as to particular facts the redirect examination must be confined to the particular matter brought out by the cross-examination. Ussery, 118-1177.

4. CHARACTER OF DEFENDANT.

Where defendant offered proof only of the character he sustained at the time of the alleged offence it is not competent to prove his character at the time of the trial. Johnson, (60 Winst.), 151.

Where a defendant introduces evidence of his good character, the state is limited in reply to evidence of general reputation. Laxton, 76-216.

Where on the trial the defendant testifies in his own behalf and introduces no evidence as to his general character, but the state introduces evidence to show that his character is bad, such evidence by the state can only be considered as affecting the credibility of the defendant as a witness, and not as a circumstance in determining the question of his guilt or innocence. Traylor, 121-674.

Where there is no evidence of the character of the defendant the jury

are to weigh the testimony as if they knew nothing against him except what was disclosed on the trial. Collins, 14 (3 Dev.), 118.

A defendant may offer evidence of his good character without testifying in the case himself. Hice, 117-782.

Where a defendant offers evidence of his good character the state may show his bad character either by cross-examination or by other witnesses. Hice, 117-782.

When a prosecutor or defendant goes upon the witness stand as a witness he becomes just as any other witness, and his general character can be proven, not only as it was before a charge affecting it was made, but as it is at the date he goes upon the stand. Spurling, 118-1250.

5. CIRCUMSTANTIAL EVIDENCE.

Evidence of facts, which in themselves are slight, should in cases of circumstantial testimony, be admitted if they, with other facts proved, bear upon the crime charged. Rhodes, 111-647.

Where the evidence is circumstantial, each fact proving a necessary link in the chain must point to the guilt of the accused, and must be as clearly and distinctly proven as if the whole case depended on it, the strength of the chain being determined by the strength of its weakest link. Carson, 115-743.

It is not error to refuse an instruction that the strength of circumstantial evidence must be equal to the strength of the testimony of one credible eye-witness. Carson, 115-743.

Circumstantial evidence is not only a recognized and accepted instrumentality in the ascertainment of truth, but it is essential, and, when properly understood and applied, highly satisfactory in matters of the gravest moment. Brackville, 106-701.

In cases of circumstantial evidence the facts, their relations, connections and combinations should be natural, reasonable, clear and satisfactory; and such evidence, when relied upon to convict, should be clear, convincing and conclusive in its connections and combinations, excluding all rational doubt as to defendant's guilt. Brackville, 106-701.

MOTIVE. It is never necessary to show a motive for the commission of a crime, but where the prosecution relies upon circumstantial evidence it is competent to introduce evidence tending to prove a motive. Green, 92-779.

6. CO-DEFENDANTS.

DEFENDANT A WITNESS AGAINST HIS CO-DEFENDANT.-A defendant, jointly indicted with another, is competent and compellable to testify against his co-defendant. Smith, 86-705.

The practice of sending co-defendants to the grand jury to testify against each other, while allowable, is not commended. They may be compelled to so testify unless their evidence tends to criminate themselves. Frizell, 111-722.

Declarations of one of two defendants jointly on trial are admissible only as against the party making them, and, if admitted, it is error not to instruct the jury that such declarations are incompetent as to the other defendant. Collins, 121-667.

Where defendants testify in their own behalf, it is error to instruct the jury that they have "the right to scrutinize closely the testimony of the defendants and receive it with grains of allowance on account of their interest in the event of the action," without adding that, if they believed the witnesses to be credible, then they should give to their tes

timony the same weight as the evidence of other witnesses. Holloway, 117-730.

Where, on the trial of four defendants indicted for an affray, three of them testified, and the fourth, their antagonist, was called in his own behalf, the other defendants had the same right to impeach him on crossexamination as though he had been a witness instead of a co-defendant. Goff, 117-755.

7. COLLATERAL MATTERS.

ANSWERS AS TO COLLATERAL MATTER CONCLUSIVE, EXCEPTION.-The answer of a witness on cross-examination to collateral questions is conclusive, except "as to matters which, although collateral, tend to show the temper, disposition and conduct of the witness in relation to the cause or the parties." Following State v. Patterson, 2 Ired., 346. Ballard, 97-443.

Where a witness for the state is asked on cross-examination if the prosecutor has not paid him for coming from a distant state to be a witness, and he answers that he has not, defendant may introduce witnesses to prove his declaration that he had been so paid. Collateral matters which tend to show the temper, disposition or conduct of the witness towards the cause or the parties are exceptions to the rule which treats answers to collateral matters as conclusive. Patterson, 24 (2 Ired.), 346.

It is not competent to ask and elicit an answer to a question collateral to the issue in order to prove it false and thus impugn the credit of the witness. Glisson, 93-506.

8. COLLATERAL OFFENCE.

It is only when the transactions are so connected or contemporaneous as to form a continuing action that evidence of a collateral offence will be heard to prove the intent of the offence charged; hence in the trial of an indictment for burning a dwelling-house occupied by the defendant as lessee, evidence that the defendant at a prior time was guilty of a similar offence, is inadmissible. Graham, 121–623.

On indictment for false pretences it is competent to prove other similar transactions by the defendant in order to show the scienter. Walton, 114-783.

It is only when the transactions are so connected or contemporaneous as to form a continuing action that evidence of a distinct substantive and collateral offence will be admitted to prove the intent with which the offence charged was committed. Jeffries, 117-727.

Other criminal acts may be proved if they are connected with the one charged. Mace, 118-1244.

On indictment for uttering counterfeit money evidence may be received of former acts and transactions which tend to bring home the scienter to the defendant, notwithstanding such evidence may fix upon other charges than that on which he is tried. Twitty, 9 (2 Hawks), 248.

The collateral offence to prove the intent must be confined to a time before, or just about the time, the offence charged against the defendant is alleged to have been committed. Jeffries, 117-727.

It is a rule of evidence, subject to few exceptions, that evidence of a distinct substantive offence can not be admitted in support of a charge of another offence; therefore, on a charge of larceny of money given to the prosecutrix by defendant it was error to admit evidence that defendant had seduced her under a promise of marriage, such evidence not showing that he had been compelled to give her the money on account of the seduction. Nor in such case was evidence admissible as to defendant's inability (he being a married man) to make good his promise of marriage. Frazier, 118-1257.

9. COMPETENCY OF WITNESS.

Sec. 145 (1192). Party whose name is forged a competent witness. R. C., c. 35, s. 22.

No person shall be deemed to be an incompetent witness by reason of any interest which such person may have, or be supposed to have, in respect to any deed, writing, instrument, or other matter whatsoever, in support of any prosecution, wherein shall be questioned the fact of forging such deed, writing, instrument, or other matter whatsoever, or the fact of uttering, showing forth in evidence, or disposing thereof, knowing the same to be forged. Sec. 146 (1215). Persons participating in unlawful gaming compelled to testify of the gaming; not to be prosecuted therefor. R. C., c. 34, s. 50. No person shall be excused, on any prosecution, from testifying touching any unlawful gaming done by himself or others; but no discovery, made by the witness upon such examination, shall be used against him, in any penal or criminal prosecution, and he shall be altogether pardoned of the offence so done, or participated in by him.

Sec. 147 (1350). No witness incapacitated by interest or crime. 1866, c. 43, ss. 1, 4. 1869-'70, c. 177. 1871-'2, c. 4.

No person offered as a witness shall be excluded by reason of incapacity from interest or crime, from giving evidence either in person or by deposition, according to the practice of the court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit or proceeding, civil or criminal, in any court, or before any judge, justice, jury or other person having, by law, authority to hear, receive and examine evidence; and every person so offered shall be admitted to give evidence, notwithstanding such person may or shall have an interest in the matter in question, or in the event of the trial of the issue, or of the suit or other proceeding in which he is offered as a witness. This section shall not be construed to apply to attesting witnesses to wills.

Sec. 148 (1353). Defendants in criminal proceedings competent in their own behalf at their own request; husband or wife of defendant competent for defendant. 1881, c. 89, s. 3. 1881, c. 110, ss. 2, 3.

In the trial of all indictments, complaints or other proceedings against persons charged with the commission of crimes, offences and misdemeanors, the person so charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him. The

husband, or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant; but the failure of such witness to be examined shall not be used to the prejudice of the defence. But every such person examined as a witness shall be subject to be cross-examined as other witnesses.

HUSBAND COMPETENT WITNESS AGAINST WIFE, WHEN.-A husband is a competent witness against his wife on indictment against her for assault and battery in striking the husband with an axe, since the use of such a deadly weapon indicates malice. Davidson, 77-522.

The husband or wife of the defendant is a competent witness for the defendant in all criminal proceedings, but neither is competent or compellable to give evidence against the other. Harbison, 94-885.

AFTER DIVORCE.-A divorced husband is incompetent to testify against the divorced wife as to acts of adultery which occurred prior to the divorce. Raby, 121-682.

DEFENDANT VOLUNTARILY TESTIFYING.-Where a defendant is called by his counsel and sworn and examined as a witness he will be deemed to be exercising his right to testify under this section, and will be deemed to have waived the caution prescribed in section 1145 of The Code. Hawkins, 115-712.

Sec. 149 (1354). Incompetent evidence, what. 1856-'7, C. 23. 1866, c. 43, s. 3. 1858-'9, c. 209, s. 4.

Nothing in this chapter, except as provided in the preceding section, shall render any person, who in any criminal proceeding is charged with the commission of a criminal offence competent, or compellable, to give evidence against himself, nor shall render any person compellable to answer any question tending to criminate himself, nor shall in any criminal proceeding render any husband competent or compellable to give evidence against his wife, nor any wife competent or compellable to give evidence against her husband: Provided, that in all criminal prosecutions of a husband for an assault and battery on the person of his wife, or for abandoning his wife, or for neglecting to provide for her support, it shall be lawful to examine the wife in behalf of the state against the said husband.

DEFENDANT CRIMINATING HIMSELF.-Where a defendant offers himself as a witness in his own behalf he waives his constitutional privilege of refusing to answer self-criminating questions. Thomas, 98-599.

Where defendant testifies in his own behalf he waives his constitutional right not to answer questions which tend to criminate him. Allen, 107805.

WIFE OF ONE DEFENDANT WHERE TWO ARE INDICTED.-On indictment against two persons for an affray, the wife of one of them is not a competent witness for the other defendant. Harbison, 94-885.

ATTORNEY AND CLIENT.-One charged with a crime, who turns state's witness against his associates, under an assurance that his disclosures are not to be used against him, may be cross-examined as to what he told his counsel about the offence while he was himself charged, since he testifies with the express understanding that he is to disclose his own