dealing with the letters of the business in contravention of clause 4 of the agreement, and from issuing the above circular, and an interim injunction was granted upon the usual undertaking as to damages being given by Theophilus Pearson.

May 1, 1884.-A motion was now made to continue that injunction, which was granted, "restraining said James Pearson from issuing any circulars, * ** and also from applying to any person who was a customer or correspondent of the late firm, prior to the date of this agreement, privately, by letter, personally or by a traveller, asking such customer or correspondent to continue to have dealings with the defendant, or not to deal with the plaintiff."

James Pearson appealed from so much of the order as restrained him from soliciting business from the customers of the old firm.

Graham Hasting, Q. C., and William Baker, for ap pellant.

Robinson, Q. C., and Mulligan, for respondent.

BAGGALLAY, L. J. The order granting this injunction must be discharged. The injunctiou restrains the defendant from issuing circulars to the customers of the old firm, and also restrains him from soliciting the customers of the late firm to deal with him. The defendant does not appeal as to the first part of the injunction, but only as to the second part, which restrains him from soliciting the customers of the old firm. It is importaut to bear in mind the terms of the agreement. If clause 1 stood alone, I should be of opinion that the words " estate and interest" included good will, and the case would be within the principle of Labouchere v. Dawson, 25 L. T. Rep. (N. S.) 894; L. R., 13 Eq. 322; and if that case is to be recognized as good law, the plaintiff would be entitled (leaving clause 3 of the agreement out of consideration for the moment) to an injunction. But with respect to that case I have myself on a former occasion, in Walker v. Mottram, 45 L. T. Rep. (N. S.) 659; 19 Ch. Div. 355, expressed doubts which the argument to-day has certainly tended to confirm, so that I may now say that in my opinion, Labouchere v. Dawson ought not to be recognized by the courts. I am well aware that it has been followed on two or three occasions by judges of co-ordinate jurisdiction, but it has never yet been distinctly followed or positively dissented from in the Court of Appeal. In that case there was an agreement for sale of a brewery with the good will of the business, and Lord Romilly decided that the vendor might set up a similar business and publicly advertise, but might not solicit the customers of the old firm. The principle of the decision was that vendors must not afterward depreciate what they have sold. But the question in the first instance is, what is it that they have really sold? The law prior to that case was very distinctly enunciated by Lord Hatherly, when vice-chancellor, in Churton v. Douglass, Johns. 174, to the effect that a man who has sold the good will of his business is not thereby prevented from carrying on business with the customers of the old firm, provided that he does not represent that his is the old business, or that he is the successor in business of the old firm. Labouchere v. Dawson therefore went beyond this and all the older decisions.

Similar questions have arisen in three more receut cases. In Ginesi v. Cooper, 42 L. T. Rep. (N. S.) 751; 14 Ch. Div. 596, a trader sold his business and good will, and Jessel, M. R., restrained the vendor, not only from soliciting, but even from dealing with the customers of the old firm, a decision which went even further than Labouchere v. Dawson. That was not appealed; but in a very few weeks came the case of Leggott v. Barrett, 43 L. T. Rep. (N. S.) 641; 15 Ch. Div. 306, in

which Jessel, M. R., again granted an injunction in similar terms, and in that case there was an appeal from the order so far as it restrained simply dealing with the old customers, but no appeal as to the injunction restraining the soliciting-that is, the principle of Labouchere v. Dawson was submitted to by the defendant in that case. All the judges on the appeal were of opinion that the injunction should not be extended; but it was not possible for the court on that occasion to decide the exact point in Labouchere v. Dawson, though James and Cotton, L. JJ., both expressed doubts as to the soundness of that decision. Thirdly, the case was discussed in Walker v. Mottram, ubi supra, a case in which Jessel, M. R., had again extended the principle to circumstances to which the Court of Ap peal thought it ought not to be extended. In that case Lush and Lindley, L. J.J., did not dissent from Labouchere v. Dawson. Indeed a passage in their judgment seems rather to assent to it. At the same time it is impossible to read the decisions on good will prior to 1872 without seeing that that case went much farther than the old ones. In my opinion the authorities of Cook v. Collingridge, Jac. 607; Churton v.Douglas, ubi supra, and Crutwell v. Lye, 17 Ves. 335, do not warrant the extension. As I have already said, my doubts as to Labouchere v. Dawson are now confirmed, and I must express my opinion that that case is not correct, but goes beyond the older decision without good reason. Then it was pressed upon us that because Labouchere v. Dawson is a case twelve years old, the Court of Appeal ought to act upon it, and leave it to be overruled, if it is overruled, by the House of Lords; and in support of that Pugh v. Golden Valley Ry. Co., 42 L. T. Rep. (N. S.) 863; 15 Ch. Div. 330, was cited, where no doubt Thesiger, L. J., did express an opinion that it was undesirable to overrule old-standing decisions upon which many private acts of Parliament had been based in the meantime. At the same time it may be remarked that the judges did not act only upon that view, for they expressly approved Reg. v. Wycombe Ry. Co., 15 L. T. Rep. (N. S.) 310; L. R., 2 Q. B. 310, the case which it was then sought to overrule. Therefore if this case was to be determined upon the first clause only of the agreement, I not being able to adopt the decision in Labouchere v. Dawson, should hold that there was no ground for restraining the defendant as to that part of the injunction as to which he has appealed. But clause 3 appears to confer on the defendant the right to carry on the same business, and certainly must modify any view which might be taken of the rights of the parties if they were to be decided upon a simple agreement for sale of the business. Having regard to clause 3, the defendant has certainly not done any thing which he is not entitled to do. I prefer however to rest my decision on clause 1, and to give it the full effect contended for by the appellant.

COTTON, L. J. This case is founded upon a contract between the plaintiff and defendant. There is no express covenant that the defendant will not solicit the customers of the old firm; but it is said that there is an implied one. Now I have a great objection to ex tending contracts, and I think it is much better when parties are entering into contracts to require them to say what they really mean. This very question must have been present to the minds of the parties in the present case, and yet the agreement is silent upon it. That, to my mind, is a strong argument that it was not intended to restrict the defeudant In this way. As to good will we may take what was said by Lord Eldon in Cruttwell v. Lye, 17 Ves. 335, 346: "The good will which has been the subject of sale is nothing more than the probability that the old customers will resort to the old place." Having the old place of busi

It

ness, of course gives a very good chance of retaining the old customers. I think the terms of clause 1 in this agreement carry the good will in the sense of Lord Eldon, and though it may be that in some cases a contract for sale of good will means something more than the chance of the customers resorting to the old place, yet as a rule there is in my opinion no substantial difference between the sale of a business and the sale of the good will of a business. It has been argued that it is already decided by Labouchere v. Dawson that upon the sale of the good will of a business, there is an implied covenant by the vendor not to solicit the customers of the old firm. We ought not to hesitate to say whether, in our opinion, that case was rightly decided. In the other cases which were brought to the Court of Appeal, and to which Baggallay, L. J., has referred, the exact point did not arise. Here it does arise. In my opinion that decision was wrong. So far from there being any thing in the earlier cases in support of such an extension of the meaning of good will, it seems to me that what was said in those cases was contrary to it. [His lordship then referred to the judgments of Lord Eldon in Cruttwell v. Lye, ubi supra; Kennedy v. Lee, 3 Mer. 452, and Cook v. Collingridge, ubi supra.] That is, in Lord Eldon's opinion, a selling partner may carry with him the old customers by all fair means. would be fraudulent of course to represent this new business as the old one. Here what has been restrained is the merely asking people to deal with the defendant. The question is, where is the line to be drawn? The defendant, it seems, is to be at liberty to carry on business next door, but he is not to write and tell the customers that he is doing so. It would be wrong, in my opinion, to put upon a sale of good will a meaning which would imply a covenant not to solicit. And if the vendor may solicit by private letter, why not by circular? Although I think it right to express my dissent from Labouchere v. Dawson, the defendant's right is certainly much clearer in this case, the intention of the parties being shown by the third clause of the agreement. It was urged upon us that Labouchere v. Dawson was a case of some age, and ought not now to be overruled by the Court of Appeal. For eight years there was no opportunity of questioning it in the Court of Appeal, and of course in the courts of coordinate jurisdiction it would not have been right to disregard it. But in Leggott v. Barrett, ubi supra, in 1880, James, L. J., and I were careful to leave the point open in case it should afterward arise in the Court of Appeal. We both expressed our doubts then as to the soundness of the decision, and this is the first time I have had an opportunity of really expressing my opinion on the point. In my opinion parties ought to put their bargains, whatever they may be, in plain language.

LINDLEY, L. J. The rights of the parties in this case depend on the construction of the agreement. It is not an agreement between an ordinary vendor and purchaser of a business, or between a continuing and a retiring partner, but it is an agreement the object of which was to put an end to the disputes, which are referred to in the recitals. By the first clause Theophilas Pearson, the plaintiff, agreed to pay to his nephew 2,000l. for his interest and estate in the property and business. To understand that, we must realize the position of the parties. The purchaser was a trustee, and the vendor was his cestui que trust, who was giving up his whole interest under his father's will, whatever it might be, for 2,000l. I do not doubt that "good will" was included in what was sold, for I do not see how any one can sell his share of a business without including his share in the good will. But clause 3 of the agreement is a very important clause. It is introduced forthe benefit of James Pearson, the defend

ant.

Does it not mean that though he has sold the good will, he is to be just as free to carry on a similar business as if he had not sold any thing? As to Labouchere v. Dawson, there has been no doubt a difference among the judges of the Appeal Court. I am not prepared to say it is wrong. On the contrary, I think it is right. I always have thought so. I think the principle of it is right-that a person who has sold the good will of a business shall not derogate from his own grant. If the Court of Chancery had originally decided to go that length, no one would have quarrelled with it, and I think Lord Romilly went in the right direction. Lush, L. J., Jessel, M. R., and Brett, M. R., have all approved of it. I believe it has been acted on in agreements for sales ever since, and I am not prepared to overrule it. In construing the agreement in this case however I do not think Labouchere v. Dawson applies, and I agree in discharging so much of the order as has been appealed from.

Appeal allowed; so much of the order as restrained soliciting old customers being discharged.

Solicitors: Smiles, Binyon and Ollard; Burn and Berridge, agents for Silvester E. Swaffield, Chesterfield.

CONSTITUTIONAL LAW-EX POST FACTO -CHANGING PUNISHMENT - REASONABLE DOUBT-PRISONER AS WITNESS.

SUPREME COURT OF NEBRASKA, AUG. 8, 1884.

MARION V. STATE.*

At the time of the commencement of the alleged offense the punishment prescribed for the crime of murder was either death or imprisonment for life, the penalty to be fixed by the jury in their verdict. After the commission of the offense the law was changed so as to make death the punishment for murder in the first degree, and divesting the jury of the authority to fix the penalty. Held, that so far as the law affected the rights of the party charged with the offense by depriving him of the right to the verdict of the jury upon the question of punishment, it was ex post facto, and void.

The propriety of instructing a jury that in cases of circum

stantial evidence it is not necessary for the jury to be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied on to establish defendant's gnilt" doubted.

When in a prosecution for murder the defendant, on his trial, becomes a witness in his own behalf, it is incompetent on cross-examination, for the purpose of affecting his credibility as a witness, to ask him if he had not pleaded guilty to a penitentiary offense in another State; the entering of a plea of guilty, without judgment or sentence, not being a conviction within the meaning of section 338 of the Civil Code of Nebraska.

Colby, Hazlett & Bates, for plaintiff.
The Attorney-General, for defendant.

REESE, J. On the 20th day of April, 1883, the plaintiff in error was indicted by the grand jury of Gage county for the murder of John Cameron on the 15th day of May, 1872. The trial on the indictment resulted in a verdict of guilty of murder in the first degree, and the sentence of death was pronounced upon the plaintiff in error by the court. From this sentence and judgment he prosecutes a writ of error to this court. At the very threshold of this case we encounter a fatal error in the proceedings, and one which appears to have escaped the attention of all the counsel en

*S. C., 20 N. W. Rep. 289.

gaged in the trial of the cause, but which must not be overlooked by this court. No act which a court can be called on to perform ls more grave and solemn than to render a capital judgment. To perform such a duty a judge is reconciled only by the consideration that it is not he who does it, but the law, of which he is simply the minister. But if the law invests him in the particular case with no such power, he may well deliberate, and must refuse to exercise it." United States v. Yellow Sun, 1 Dill. 273. At the time of the alleged commission of the crime the law of Nebraska upon the subject of murder was quite different from what it is now and was at the time of the indictment and trial of plaintiff in error, and by that law he must be tried. By section eighteen of the Criminal Code, which was in force at the time of the alleged killing, murder is declared to be "the unlawful killing of a human being with malice aforethought, either express or implied." By that law there are no "degrees" of murder; the killing, if felonious, being either murder or manslaughter. By the law under which the plaintiff in error was tried, murder is divided into two degreesmurder in the first degree and murder in the second degree. By section 3 of the Criminal Code of 1873 murder in the first degree is in substance (as applicable to cases of this kind) the killing of another purposely and of deliberate and premeditated malice; and murder in the second degree may be said to consist in killing another purposely and maliciously, but without deliberation and premeditation. Manslaughter may, for the purposes of this case, be treated as the same under both Codes, although somewhat different.

In accordance with the requirements of the law under which the defendant was tried, the court gave to the jury this instruction: “(12) If you find the defendant guilty of the murder charged, then it will be your duty to also return in your verdict whether he is guilty of murder in the first degree-that is, purposely and of deliberate and premeditated malice; or whether he is guilty of murder in the second degree-that is, purposely and maliciously, but without deliberation and premeditation; or whether he is guilty of manslaughter-that is, that he unlawfully killed the deceased without malice."

This, as we have seen, was an incorrect definition of the crime. But it was not only an incorrect definition of the crime of murder, but it withheld from the jury the duty of fixing the punishment or penalty to be inflicted upon the plaintiff in error.

By section 1 of an act approved February 15, 1869, which was amendatory of section 20 of the Criminal Code, page 595 of the Revised Statutes, it was provided that the punishment of any person or persons convicted of the crime of murder shall be death or imprisonment in the penitentiary for life, and the jury trying the case shall fix the penalty.

In this case the plaintiff in error was deprived of a right guaranteed to him, not only by the Constitution and laws of this State, but by the Constitution of the United States. It is one of the fundamental princi. ples of this government that no person shall be punished for an act which was not criminal at the time the act was committed, nor for an act which is made criminal in any other or greater degree, or the punishment of which is materially changed after the commission of the act. And so carefully have the rights of the citizen been guarded in this respect, it has been incorporated in the organic law of the nation, and by section 10 of article 1 of the Constitution of the United States the States are prohibited from passing any ex post facto law. It cannot be doubted but that the law relating to the crime of murder, which became the law of this State on the 1st day of September, 1873, was so far as it related to acts done before it took effect, ex

post facto, and unless some provision was made for cases of this kind no punishment could be inflicted for such acts.'

In Calder v. Bull, 3 Dall. 386, the Supreme Court of the United States have decided that the plain and ob. vious meaning and intention of this prohibition in the Constitution is that the Legislatures of the several States shall not pass laws after a fact done by a citizen or subject, which shall have relation to such fact; and in writing the opinion of the court in that case Chase, J., says: "I will state what laws I consider ex post facto laws within the words and the intent of the prohibition: (1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was when committed; (3) every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender. All these and similar laws are manifestly unjust and oppressive."

This construction of the constitutional provision under consideration has been accepted and followed by the courts ever since the decision was made, and is now the settled law of the land; and hence it would seem that little need be said by way of applying the principles there laid down to this case. It is very evident that the law under which the plaintiff in error was tried "inflicts a greater punishment than the law annexed to the crime when committed." By that law the punishment was either death or imprisonment. By the latter enactment it is death. By that law the party charged had the right to have the jury pass upon the question as to whether he should live or die. By the latter act, if found guilty, he is deprived of his life, and the jury by whom he is tried have nothing to say upon the subject of what his punishment shall be. This right being at the time of the alleged act his, he cannot be deprived of it by a law subsequently passed. In Kring v. State, 107 U. S. 221, the Supreme Court of the United States have recently held that (quoting from the syllabus) "any law is an ex post facto law within the meaning of the Constitution passed after the commission of a crime charged against the defendant, which in relation to that offense or its consequences, alters the situation of the party to his disadvantage; and no one can be criminally punished in this country except according to the law prescribed for his government by the sovereign authority before the imputed offense was committed, and which existed as a law at the time."

In that case at the time of the commission of the murder for which Kring was indicted, the Supreme Court of Missouri had declared the law to be that when a conviction was had of murder in the second degree, on an indictment charging murder in the first degree, if the conviction was set aside the defendaut could not again be tried for murder in the first degree. After the commission of the crime the Constitution of the State was so amended as to abrogate this rule, and allow a defendant to be again put upon his trial for the highest crime charged in the indictment. After the change in the Constitution, Kring, having been put on his trial for murder, made a agreement with the prosecuting attorney by which he was to plead guilty of murder in the second degree and receive a sentence of ten years' imprisonment in the penitentiary of the State. He entered his plea of guilty of murder in the second degree, but the court refused to be bound by the agreement of the prosecuting attor

ney, and sentenced Kring to the penitentiary for a term of twenty-five years.

The case was taken to the Supreme Court of the State, and the sentence was set aside and a new trial granted. When again brought to trial he insisted on his agreement with the prosecutor, but the court still refused to be bound by it. He refused to withdraw his plea of guilty, but the court set it aside and entered a plea of not guilty. A trial was had, and he was found guilty of murder in the first degree and sentenced to be hung. He appealed to the Supreme Court of the State, and the judgment of the lower court was affirmed, when he appealed to the Supreme Court of the United States, where the judgment was set aside, that court holding that as at the time of the commission of the offense a judgment of guilty of murder in the second degree was a final acquittal of the crime of murder in the first degree, so it must continue to be so far as that crime was concerned.

In the opinion of the court Miller, J., says: "We are of opinion that any law passed after the commission of an offense which, in the language of Washington, J., in United States v. Hull, in relation to that offense or its consequences, alters the situation of the party to his disadvantage, is an ex post facto law; and in the language of Deuio, J., in Hartung v. People, no one can be criminally punished in this country except according to a law prescribed for his government by the sovereign authority before the implied offense was committed, and which existed as a law at the time. Tested by these criteria, the provision of the Constitution of the State of Missouri, which denies to plaintiff in error the benefit which the previous law gave him of acquittal of the charge of murder in the first degree, on conviction of murder in the second degree, is as to this case an ex post facto law, within the meaning of the Constitution of the United States; and for the error of the Supreme Court of Missouri in holding otherwise, its judgment is reversed and the case is remanded to it, with directions to reverse the judgment of the Criminal Court of St. Louis, and for such further proceedings as are not inconsistent with this opinion."

We have quoted from the above case at considerable length for the double purpose of drawing therefrom as well as might be the local principles there stated, and to show that any other doctrine applied by the courts of the States will be reviewed by that court, and their judgments promptly reversed; so that were this court inclined to hold otherwise, such a judgment would not be permitted to stand. It is not deemed necessary to discuss this subject further in this opinion, as it seems to us to be so well settled by the adjudications of all the courts of this country that the simple statement of the proposition is sufficient. It is evident that it was an oversight of the court and counsel involved in the trial. We cite a portion of the cases to be found in the books where the foregoing views are sustained: State v. McDonald, 20 Minn. (Gil.) 119; Same v. Johnson, 12 id. 378; Same v. Gut, 13 id. 315; Same v. Ryan, id. 343; Same v. Herzog, 25 Minn. 490; Com. v. McDonough, 13 Allen, 581; Hartung v. People, 2 N. Y. 95; Shepherd v. People, 25 id. 406; Green v. Shumway, 39 id. 418; In re Petty, 22 Kan. 477; State v. Sneed, 25 Tex. Supp. 66; Miles v. State, 40 Ala. 39. See also 1 Bish. Crim. Law, 129 (108); 2 Story Const. 213. Notwithstanding the fact that this case must be reversed for the foregoing reasons, it does not follow that the plaintiff in error cannot be tried for the crime alleged against him. Ample provision is made by the criminal law which took effect September 1, 1873, for the trial of persons charged with the commission of crimes which were made punishable by the law thereby repealed. Section 255 of the Repealing Act

(see p. 706, Comp. St.) is as follows: "No offense committed, and no fine, forfeiture or penalty incurred, under existing laws previous to the taking effect of this Code, shall be affected by the repeal herein of any such existing laws, but the punishment of said offenses, the recovery of such fines and forfeitures, shall take place as if said laws repealed had remained in force; provided that the manner of procedure for the enforcement or imposition of all such punishments, and the collection of all such fines and forfeitures shall be in accordance, or as nearly in accordance, with the provisions of this Code as the nature of the case will admit; and in any case whatsoever should the procedure provided for in this Code be wholly inadequate the procedure provided for in the laws repealed by this Code may be followed so far as necessary to prevent a failure of justice." By this section all difficulty is removed, and it only remains to put the plaintiff in error upon trial for the crime with which he is charged, in the manner provided by the law as it existed at the time of the alleged commission of the offense.

As another trial will have to be had, it is deemed expedient to notice briefly some of the alleged errors presented by the plaintiff in error in his brief, as some of the questions here presented will in all probability have to be met in the trial court.

The first question presented for decision by the defendant in error is that "the evidence shows that the alleged crime, for which defendant was convicted, was committed, if at all, upon a tract of land set apart for the sole and exclusive use of the Otoe and Missouri tribe of Indians, under the laws of Congress and treaties between the said Indian tribes and the United States, and the District Court of Gage county had no jurisdiction over the said offense." This territory, known as the Otoe reservation, being within the boundaries of this State, is subject to its laws, and it is not deemed necessary here to discuss, at any great length, the legal propositions presented by the plaintiff in error, as it has been heretofore settled, not only by this court, but the courts of various States, as well as the Federal courts. See Painter v. Ives, 4 Neb. 122; Clay v. State, 4 Kan. 58; McCracken v. Todd, 1 id. 148; United States v. Yellow Sun, supra; United States v. Ward, 1 Woolw. 17; Same v. Stahl, id. 192. We think the District Court had jurisdiction, and that plaintiff in error was properly put upon his trial in Gage

county.

The plaintiff in error requested the court to give a number of instructions to the jury, some of which were refused, and to the refusal of the court to give those he excepted, and now assigns the refusal as

error.

The eleventh instruction, which reads as follows, was refused: "(11) The court instructs the jury that it is an invariable rule of law that to warrant a conviction for a criminal offense, upon circumstantial evidence alone, such a state of facts and circumstances must be shown as that they are all consistent with the guilt of the party charged, and such that they cannot, upon any reasonable theory, be true and the party charged be innocent." The instruction states the law correctly and should have been given had not the jury been already fully instructed upon this point. When a jury has once been instructed upon a point of law, nothing can be gained by repeating the instruction. One instruction, full and clear, upon a given point, is sufficient. Olive v. State, 11 Neb. 30; Kopplekom v. Huffman, 12 Neb. 100.

The court also refused to give instruction No. 13, asked by plaintiff in error, which was that "the confessions and admissions of the prisoner out of court are a doubtful species of evidence, and should be acted

upon by the jury with great caution." As an abstract proposition of law this instruction is correct, but we fail to find any thing in this case to which it may apply, and our attention has not been called to any evidence of confessions or admissions. Instructions should be applicable to the case made. Williams v. State, 6 Neb. 334.

The same may be said of the fourteenth instruction asked by the plaintiff in error, and refused by the

court.

The next instruction which it is thought necessary to notice is the fifth instruction asked by the State, and given by the court, which is as follows: "The court further instructs the jury that the rule requiring the jury to be satisfied of the defendant's guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that the jury should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt; it is sufficient if, taking the testimony all together, the jury are satisfied beyond a reasonable doubt that the State has proved each material fact charged, and that the defendant is guilty." The objection to this instruction is based upon that part which informs the jury that the law does not require that they should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt. This instruction is copied from Sackett on Instructions to Juries, and is sustained by some authorities of respectability; but yet it seems to us that a jury might be misled thereby. What is meant by the word "link" as used therein? If the jury were given to understand that it referred only to evidentiary facts which might add force or weight to other facts from which the inference of guilt could be drawn, then the instruction might be said to be correct. But if by the use of the word is meant such criminative facts which of themselves form the chain of evidence from which the inference of guilt is to be drawn, then the instructtion does not state the law correctly. No chain can be stronger than its weakest link. If the link is gone it is no longer a chain. If the word "link" here refers to those circumstances which are essential to the conclusion, it is not a correct statement of the law. While in view of other instructions which were given, and which more definitely stated the law, a new trial might not be given in this case, yet we cannot recommend this instruction as worded, and think it should not be thus given.

There are over 500 objections to evidence presented by the motion for a new trial and petition in error, many of which seem to have been made more from habit and out of abundant caution than from any thing contained in the questions to which the objections were made. With the exceptions of those hereafter particularly noticed, we will dismiss them all by saying that while our attention has not been particularly called to any, we have examined them all,and fail to detect any error.

But our attention is particularly called to question No. 3,116, which was in the cross-examination of the plaintiff in error while on the witness stand. The question is as follows: "I will ask you this, 'Did you plead guilty to a penitentiary offense down there in Kansas, just before the sheriff brought you up here ?'" This question was objected to by plaintiff in error, his objection overruled, exception taken, and he was compelled to answer, which he did by answering "yes." In support of the right of the State to ask this question and insist upon an answer, we are cited to section 338 of the Civil Code, which is as follows: "A witness may be interrogated as to his previous conviction for a felony, but no other proof of such conviction is competent except the record thereof."

There is nothing in this case which lays any foundation for such proof whereby it becomes material to the issue. If competent at all, it is for the purpose of discrediting the testimony of the witness, and thereby destroying its weight with the jury. At common law one who had been convicted of an infamous offense was not a competent witness in any case; but the record of that conviction was the only competent proof thereof. This disqualification has been removed by our statute, and a convict is a competent witness; but it is provided that "facts which have heretofore caused the exclusion of testimony may still be shown for the purpose of lessening its credibility." Civil Code, § 330.

If pleading guilty to a charge of felony can be said to be a "conviction," then the question was proper; but if in order to be a conviction there must be a judgment of the court upon the plea, then the question was improper. There is a conflict of opinions and decisions upon this question, and by some text writers and courts of last resort it is maintained that the word "conviction" usually means the judicial ascertainment of guilt, as by the verdict of a jury or a plea of guilty; but we have found no case where the word, as applied to the competency of a witness to testify, has reference to any thing short of the final judgment of the court upon a verdict or plea of guilty.

were

In Com. v. Gorham, 99 Mass. 420, this question, under somewhat similar circumstances, was passed upon by the Supreme Court of that State. There the defendant was indicted for burning a dwelling-house. On the trial he testified in his own behalf; and to affect his credibility as a witness, the prosecuting attorney of fered in evidence an original indictment for forgery, found against him at a previous term of the same court, and the record of the clerk noted on the back thereof that "the defendant pleads guilty;" after which plea that indictment was put on file, but afterward brought forward, entered on the docket, and was pending at the time of the trial under the indictment for burning. The evidence was admitted over the objection of the defendant, who was found guilty, and alleged exceptions. In the Supreme Court the attorney-general presented an exhaustive argument seeking to show that the term "conviction," as used with reference to witnesses, did not necessarily imply the judgment of a court upon a verdict or plea of guilty, but that it was used in the sense of the establishment of guilt; and many authorities cited by him, most of which were upon the word as generally used with reference to the proceedings of courts; but the Supreme Court held otherwise. In the opinion of the court, written by Cobb, J., the following language is used: "We think the obvious purpose of the Legislature was to restore the competency of a witness against whom the record of a judgment for crime was produced, but to permit the same evidence to be used as affecting his credibility in all cases requiring the same complete record of the whole case, and that the word 'conviction' is here used in the broader and less technical sense, and implies the judgment of the court. It could not have been the purpose of the law-makers to permit evidence of moral guilt, as distinguished from guilt legally established, to be produced against a witness." The exceptions were sustained. We think the rule adopted in that case was the correct one, and that in order to render the evidence proper for the purpose sought, there must be a judgment of conviction. It follows that the question was improper, and the objection should have been sustained.

The judgment of the District Court is vacated, the decision on the motion for a new trial is reversed, and the cause is remanded for further proceedings. [See 45 Am. Rep. 531; 29 Alb. L. J. 336.]