The opinion of the court was delivered by
Kingman, .C.J:
The appellant was convicted of murder .in the second degree in the district court of Neosho county, [127]*127and brings the case to this court by appeal. Various errors are' alleged which will be considered in their order.
1. change of venue; prejudice of ticc!>le' Prac" I. The court refused to grant a change of venue asked by the appellant. The accused supported his petition by the affidavit of himself and nine others. The facts stated in the petition, which was also the affidavit sworn to by all the affiants, are briefly these: That the homicide had been 3 J the subject of violent and inflamatory remarks and discussions throughout the county; that unfair and unjust accounts of the homicide had been published in two of the newspapers of the county, of general circulation therein; that divers and sundry persons, actuated by malicious motives, had been busy, circulating reports of the homicide for the purpose of prejudicing the people against the accused; and that, incited by these causes, a mob of five hundred persons, armed with fire-arms, had seized the accused, took him from the custody of the officers of the law, at the 'town of Osage Mission, and carried him some distance from the town, with the avowed object of putting him to death, and had assaulted and maltreated him. The counsel for the state filed a number •of affidavits controverting the statements of the petition.
The statements in the petition are mostly made up of conclusions, and are not the definite statement of facts that the law requires. Neither the names of the persons who maliciously circulated the reports, nor the reports they circulated, .are stated; the accounts published in the newspapers are not produced, nor is it stated in what papers they were published. The same observations may be made as to most of the .-affidavits presented by the state, and this was a necessary consequence of the general statements of the petition. The .affidavits for the state show that the affiants live in different parts of the county, with a general acquaintance in their respective townships, and that whatever might be the feeling in Osage Mission, there was no prejudice against the prisoner in those parts of the county where they lived. The man who was killed was a workman on the railroad, and the mob was wholly composed of hands engaged in building the road, and [128]*128not of citizens of the comity; that the citizens condemned the action of the mob, and that the persons composing it had left the county. The mob were prevented from accomplishing their purpose by the citizens. These affidavits satisfactorily and effectually dispose of any inference of prejudice indicated by the action of the mob. Taking the affidavits on both sides, and we think the court correctly refused the change of venue. Before we could reverse a case for a refusal of such a motion, we must be able to see that the decision was wrong. In this case we are strongly persuaded that it was right.
II. A witness was allowed to testify that the deceased was intoxicated at the time of the homicide. This was proper, as tending to show that he was incapable of attack or defense.
3. practice; recalling witness; impeaching, III. Horne was a witness on his own behalf, and after he had testified and left the stand, the court permitted the state to recall him and re-cross-examine him. The , object of the re-cross-examination was to lay the foundation for impeaching his testimony by contradicting it. The proceeding seems to be unobjectionable; 1 Greenl. Ev.,. §447; but if not, the error was harmless, as the witness’ answers were such that no advantage could be made of them. He did not recollect having had a certain meeting with James Barnes. Now if it was proven that he did have such a meeting, if such proof, from any cause should be legitimate, then the want of recollection of Horne did not show any want of veracity.
4. Animus and intent of piisoner. IV. The following testimony of James Barnes was objected to, and its admission alleged as error. Barnes testified that defendant asked him if he had seen Curran down at Kelley’s saloon. Witness told him he had. Witness then remarked, “By God, we want to see him.” / \ ' McGill was with defendant at the time. This conversation took place fifteen or twenty minutes before Cur-ran was killed. This was legitimate testimony, not, as counsel for appellant imagines, as impeaching testimony. It might-have been so used if any foundation had been laid, but none had been. Horne had never been asked as to a conversation [129]*129between himself and witness Barnes. It seems that an effort was made to prepare the way for using the testimony as impeaching testimony also, but when Horne stated that he did not recollect meeting the witness the attempt was abandoned. _ But the testimony was perfectly competent to show that the accused was looking for the deceased a short time before he was killed, and as tending to show his state of mind. Being legitimate for this purpose it was properly admitted.
5. Instructions • justifiableantl homicide. V. The next error alleged is in the refusal of the court to give certain instructions. The first one asked by appellant was n0* g00cl Iw and was properly refused. The instruction is defective in not stating that the apprehended danger was menacing the accused at the time. As it stands it simply states that if one person has reasonable ground to believe that another has a design to take his life, and under that belief he kills that other, the killing would be justifiable. This is not law. There must not only be reasonable ground to believe such a design exists, but the person to execute the design must be accompanied by some attempt to execute it, or the person must at least be in an apparent situation to do so, and so induces a reasonable belief that he intends to do it immediately. The instruction is open to criticism on another point. It states that where recent threats and other circumstances which would tend to lead the defendant to believe that his life was in imminent danger, etc. Now the threats and circumstances must not only tend to lead to the belief, but they must force the belief upon the mind, and then the belief must be reasonable, and such as reasonable men act on. The instruction as asked was not only objectionable for three reasons as a proposition of law, but because these modifications were especially necessary in this case, if any instructions at all of this character were necessary, which may well be doubted.
The third instruction contains this proposition in words: “ That the officers of the law when engaged in the performance of their official duties, are invested with a peculiar [130]*130prerogative of resisting, when so employed, and if the party resisted be killed in the struggle; the homicide is justifiable.” If this be law then any resistance of an officer however slight justifies the officer in taking the life of any prisoner. The proposition so quoted is not in any manner modified by the remainder of the instruction; and this was a sufficient cause for rejecting the Avhole instruction. But the residue of the instruction is essentially vicious, as it has too close a resemblance to the part quoted.
The foui’th instruction Avas refused. It is so obscure, uncertain and involved, that it ought not to have been given.
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The opinion of the court was delivered by
Kingman, .C.J:
The appellant was convicted of murder .in the second degree in the district court of Neosho county, [127]*127and brings the case to this court by appeal. Various errors are' alleged which will be considered in their order.
1. change of venue; prejudice of ticc!>le' Prac" I. The court refused to grant a change of venue asked by the appellant. The accused supported his petition by the affidavit of himself and nine others. The facts stated in the petition, which was also the affidavit sworn to by all the affiants, are briefly these: That the homicide had been 3 J the subject of violent and inflamatory remarks and discussions throughout the county; that unfair and unjust accounts of the homicide had been published in two of the newspapers of the county, of general circulation therein; that divers and sundry persons, actuated by malicious motives, had been busy, circulating reports of the homicide for the purpose of prejudicing the people against the accused; and that, incited by these causes, a mob of five hundred persons, armed with fire-arms, had seized the accused, took him from the custody of the officers of the law, at the 'town of Osage Mission, and carried him some distance from the town, with the avowed object of putting him to death, and had assaulted and maltreated him. The counsel for the state filed a number •of affidavits controverting the statements of the petition.
The statements in the petition are mostly made up of conclusions, and are not the definite statement of facts that the law requires. Neither the names of the persons who maliciously circulated the reports, nor the reports they circulated, .are stated; the accounts published in the newspapers are not produced, nor is it stated in what papers they were published. The same observations may be made as to most of the .-affidavits presented by the state, and this was a necessary consequence of the general statements of the petition. The .affidavits for the state show that the affiants live in different parts of the county, with a general acquaintance in their respective townships, and that whatever might be the feeling in Osage Mission, there was no prejudice against the prisoner in those parts of the county where they lived. The man who was killed was a workman on the railroad, and the mob was wholly composed of hands engaged in building the road, and [128]*128not of citizens of the comity; that the citizens condemned the action of the mob, and that the persons composing it had left the county. The mob were prevented from accomplishing their purpose by the citizens. These affidavits satisfactorily and effectually dispose of any inference of prejudice indicated by the action of the mob. Taking the affidavits on both sides, and we think the court correctly refused the change of venue. Before we could reverse a case for a refusal of such a motion, we must be able to see that the decision was wrong. In this case we are strongly persuaded that it was right.
II. A witness was allowed to testify that the deceased was intoxicated at the time of the homicide. This was proper, as tending to show that he was incapable of attack or defense.
3. practice; recalling witness; impeaching, III. Horne was a witness on his own behalf, and after he had testified and left the stand, the court permitted the state to recall him and re-cross-examine him. The , object of the re-cross-examination was to lay the foundation for impeaching his testimony by contradicting it. The proceeding seems to be unobjectionable; 1 Greenl. Ev.,. §447; but if not, the error was harmless, as the witness’ answers were such that no advantage could be made of them. He did not recollect having had a certain meeting with James Barnes. Now if it was proven that he did have such a meeting, if such proof, from any cause should be legitimate, then the want of recollection of Horne did not show any want of veracity.
4. Animus and intent of piisoner. IV. The following testimony of James Barnes was objected to, and its admission alleged as error. Barnes testified that defendant asked him if he had seen Curran down at Kelley’s saloon. Witness told him he had. Witness then remarked, “By God, we want to see him.” / \ ' McGill was with defendant at the time. This conversation took place fifteen or twenty minutes before Cur-ran was killed. This was legitimate testimony, not, as counsel for appellant imagines, as impeaching testimony. It might-have been so used if any foundation had been laid, but none had been. Horne had never been asked as to a conversation [129]*129between himself and witness Barnes. It seems that an effort was made to prepare the way for using the testimony as impeaching testimony also, but when Horne stated that he did not recollect meeting the witness the attempt was abandoned. _ But the testimony was perfectly competent to show that the accused was looking for the deceased a short time before he was killed, and as tending to show his state of mind. Being legitimate for this purpose it was properly admitted.
5. Instructions • justifiableantl homicide. V. The next error alleged is in the refusal of the court to give certain instructions. The first one asked by appellant was n0* g00cl Iw and was properly refused. The instruction is defective in not stating that the apprehended danger was menacing the accused at the time. As it stands it simply states that if one person has reasonable ground to believe that another has a design to take his life, and under that belief he kills that other, the killing would be justifiable. This is not law. There must not only be reasonable ground to believe such a design exists, but the person to execute the design must be accompanied by some attempt to execute it, or the person must at least be in an apparent situation to do so, and so induces a reasonable belief that he intends to do it immediately. The instruction is open to criticism on another point. It states that where recent threats and other circumstances which would tend to lead the defendant to believe that his life was in imminent danger, etc. Now the threats and circumstances must not only tend to lead to the belief, but they must force the belief upon the mind, and then the belief must be reasonable, and such as reasonable men act on. The instruction as asked was not only objectionable for three reasons as a proposition of law, but because these modifications were especially necessary in this case, if any instructions at all of this character were necessary, which may well be doubted.
The third instruction contains this proposition in words: “ That the officers of the law when engaged in the performance of their official duties, are invested with a peculiar [130]*130prerogative of resisting, when so employed, and if the party resisted be killed in the struggle; the homicide is justifiable.” If this be law then any resistance of an officer however slight justifies the officer in taking the life of any prisoner. The proposition so quoted is not in any manner modified by the remainder of the instruction; and this was a sufficient cause for rejecting the Avhole instruction. But the residue of the instruction is essentially vicious, as it has too close a resemblance to the part quoted.
The foui’th instruction Avas refused. It is so obscure, uncertain and involved, that it ought not to have been given. The proper instructions to the jury on the points attempted to be made in this instruction are given in the one numbered fifteen. For the reasons already given there xvas no error in refusing to give instructions numbered 6, 7, 8 and 9. The instruction numbered 14 Avas properly refused. The rule Aras as, favorably given in the next instruction as the appellant had a right to ask it. The appellant excepted to all the charge of the court, but specifies but three as grounds of error in this court. One is in paragraph 13. Taken by itself this paragraph Avould not be a fair guide to the jury, but taken in connection with other parts of the charge, it Avould not mislead the jury. The court in its charge used this expression: “ You are to decide Avhether the killing of James Curran by this defendant Avas, according to the laAV as stated, either justifiable or excusable,” etc. It is claimed that this expression that Curran Avas killed by defendant AX'as prejudicial to him as assuming a fact upon which the jury Avcre alone competent to pass, and the case of Carl Horne v. The State, 1 Kas., 73, 74, is cited in support of the claim. There are cases in which such an expression would be error; but this is not one. There Avas no dispute as to Avho killed Curran. Tne testimony on this point xvas abundant and harmonious. The defendant had just stated in his testimony that he had done the act, therefore it Avas no error in the court to speak of it as a fact. Some other errors in the instructions are suggested, but are not of a character to have Avrought any prejudice to [131]*131the accused, and therefore will not be further noticed, except as to one paragraph of the charge of the court, which is as follows: “If the jury believe from the evidence that'any witness has testified corruptly and falsely to any particular matter, then it is your duty to disregard the whole of the testimony of such witness.” This does not correctly state the rule as laid down in Campbell v. The State, 3 Kas., 488. * There may be a difference between material testimony, and testimony on a particular matter. The record in the case discloses the fact that the only attempt made during the trial to impeach the testimony of any witness was that made by the state upon the testimony of the defendant Horne; therefore the instruction of the court must have applied to his testimony only. A careful examination of his testimony shows that all of it was material, so that it made no difference in the case that the court erred in the use of the word “ particular” instead of using the proper word, “material.” It was an error not prejudicial to the appellant, and does not authorize a reversal.
6. verdicts-impeaching; afhdavits oi jiu-ors. "VI. On the motion for a new trial the appellant offered to read the affidavits of Robert Miller and John Young, two of the jurors who tried the case. These affidavits stated that the affiants had observed during the trial- that yYas a strong prejudice in the minds of the people of the community against said defendant; that this prejudice was discussed among the jurors in the jury-room; that affiants did not believe defendant guilty, but that if he was acquitted great bodily harm would bo inflicted on him by a mob, and that it would be better for him to be found guilty than to run the risk of mob violence, and for this reason affiants agreed to the verdict. The court refused to permit these affidavits to be read, and we think correctly. Whether the affidavits of jurors may be received in any case to impeach their verdict is a question upon Avhich there is much conflict in the decisions. The authorities on this point are collected and reviewed in the case of Wright v. Illinois & [132]*132Mississippi Telegraph Co., 20 Iowa, 195; and the court in that case lay down a certain principle which should govern in deciding where and under what circumstances the affidavits of jurors may be used to impeach their verdict. It is not claimed that the principles laid down are supported by all the decisions, for it is asserted that no principle can be laid down that is not in conflict with some of the authorities. In this ease we are not under the necessity of determining any very difficult question. It is only to be said that no juror should be heard to contradict or impeach that which in the solemn discharge of a sworn duty he has asserted. Apply that to this case, and the affidavits were properly rejected. Affidavits of jurors showing misconduct of the jury in their retirement, stand on an entirely different footing, and their competency will be determined when the case arises. In the record we find no error that authorizes us to disturb the judgment rendered. Judgment affirmed.
All the Justices concurring.