The opinion of the court was delivered by
Harvey, J.:
John Ellison Scott, charged with the murder of his wife on June 19, 1923, was found guilty of murder in the second degree, and he has appealed. The story disclosed by the record is substantially as follows:
Ellison Scott, as appellant is commonly known, was reared on a farm, and when nineteen years of age was married to Ella (Holt) Scott in 1911. No children were born to them. They lived on the farm a few years, then moved to La Cygne, where Ellison Scott worked in a store for about three years, and during this time his wife, Ella Scott, worked in a store for about a year and a half. Then with $3,000 which his father let him have and money he and his wife had saved they bought a grocery store and meat market, which they operated about four years and were operating at the time Mrs. Scott was killed. Both worked in the store, and they employed some help; Mr. Clyde McCullough worked for them some time; then Mr. T. R. Peters was employed in the meat department. He quit early in 1923, and McCullough was again employed. In the spring of 1923 Ellison Scott and McCullough formed a partnership to conduct a retail ice business, with McCullough as manager, at a place away from the store, and this was continued until the tragedy. Perhaps they employed other help at the store at times.
Nearly four years prior to the tragedy, Arlene Scott came to live with Mr. and Mrs. Ellison Scott while attending high school. Her mother is a sister to Ella Scott, but her father, Clarence Scott, is not related to appellant, though having the same surname. Arlene’s parents lived in the country some twenty-five miles from La Cygne, where there was no high school. Arlene spent the summer months at home and the school year at the home of her aunt and uncle, Ella and Ellison Scott. While there she attended school, helped Ella Scott with the housework and helped in the store on Saturdays, She graduated from the high school in May, 1923, and went to Pitts-[306]*306burg to attend a summer session of the State Teachers College, and was there at the time of the tragedy.
The Scott home was in the residence part of La Cygne, several blocks from their store, which was in the business part of town, and is situated on the southwest comer of the block. The main part of the house is a story and a half; it faces south, where there is a front porch and door; the west room downstairs was used for a bedroom, and in it was a cedar chest; the east room was the living room, into which the front door opened, and having a window east of the front door on the south; from the main part of the house there is a one-story extension north, which is fourteen feet wide and possibly twenty-four feet long, making the foundation for the entire house in the form of a T. This extension was divided by a partition so as to make a narrow room on the north which was used for a kitchen, and the remainder fourteen by seventeen feet was used as a dining room. Along the east side of this extension is a cement porch, seven feet wide. There is a door on the west of the dining room, where there is just a step and then the lawn; there is a door on the east of the dining room onto the porch, also a door from the kitchen onto the porch, a door between the kitchen and the dining room, and a door from the dining room into the living room. The dining room is lighted by two drop electric lights which turn on by pulling a cord near the lights. One of these was north and east of the central part of the ceiling. The dining table was set against the east side of the dining room north of the door leading to the porch, and a couch was on the west side of the room. On the east side of the cement porch vines were growing so as to cover the side of the porch from the ground to the ceiling, except directly in front of the door from the dining room. Just to the northeast of the north .end of the porch is the cistern; there is a cement walk from the north end of the cement porch north to a toilet and coal house near the alley, and from this walk a few feet south of the outbuildings a walk extends at right angles west to the garage, which is on the rear of the lot near the west side and' is entered with a car from the street on the west. The Scotts had a seven-passenger Studebaker touring car, which both of them drove and which was kept in the garage when not in use. There is lawn south and west of the house and extending around north to about ten feet east of the cement walk. There were several large maple trees in the yard to the south and west of the house. Northeast of the house is the [307]*307garden with flowers and shrubbery about it and along the alley east of the outbuildings.
Directly across the street south of the Scott home lived Reverend Molesworth, the Methodist minister, and his wife.- Reverend Hanson, the district superintendent, was there the evening of the tragedy. East of them in the same block P. D. Leivy and wife lived, their house facing north. Directly across the street west of the Scott home in a house facing to the east and south lived Mr. Carnagey and wife and two grown daughters, teachers, one an instructor in the State Teachers College at Pittsburg, a son-in-law, Herschel Helms, his wife, and a grand-daughter, Wilma Strahl. West of Carnageys’ in the same block, their house facing south, lived Clyde McCullough and wife, and directly west of McCulloughs’, across the street, Doctor Morrison and wife lived. West of Reverend Molesworth across the street, the house facing north and east, I. N. Rowley lived with his wife and daughter, Laura Rowley, who is a stenographer in one of the banks at La Cygne; and west of Rowleys’ in the same block, the house facing north, L. P. Bishop, president of the other bank in La Cygne, lived with his wife. There was a street light on the Scott corner which was not at the middle of the intersection but on a pole near the southwest corner of the intersection. Some of these people had retired for the night at the time of the tragedy, others had not, but all of them heard the shots and Scott’s calls for help. All of these people had lived in their respective homes several years and were well acquainted with the Scott family.
Barring two instances, which will be later mentioned, there is no evidence of any discord or lack of harmony between Ellison Scott and his wife. They worked together in the store and usually went together back and forth from their home to the store. When Ellison Scott worked about the yard, garden or garage, his wife was frequently with him; they took trips together with other married people; to the Ozarks for a summer outing; to the Free fair at Topeka ; to visit relatives and other places, and they went together to church and to other public meetings and entertainments. He usually spent his evenings at home or in her company. In short, generally speaking, the evidence of all of their neighbors is that they were respected, industrious, and exceptionally congenial people. The relationship between them and Arlene appeared like that of parents and daughter. Arlene took private lessons in reading from a neighbor, Mrs. Leivy, and the last year she was with the Scotts she joined [308]*308the Methodist church. About ten days before the tragedy she spent the week end with her aunt and uncle, and some of the neighbors were in for a Sunday dinner.
On the night of the tragedy, June 19, 1923, there was a tent show at .La Cygne which was attended by many people from the town and country about. It was a fun-making entertainment; Ellison Scott and his wife were there and appeared to enjoy it as others did. The show was out about 10:30; Scott and his wife went to their car which was parked near the tent and there visited a few minutes with friends whose car was near theirs. They then drove by the restaurant where they stopped and ate ice cream and drove home. Neighbors saw them drive east to the Carnagey corner where they turned north and into their garage. A few minutes later, some estimate the time at ten minutes, two shots were heard by people in that neighborhood, perhaps a second apart, and a dog was heard to bark about the time of the second shot or a little later. Some witnesses living a block or more from the Scott home heard the scream of a woman between the shots; some said the scream was “cut off” by the second shot; other witnesses nearer by did not hear that. About a minute after the shots Mr. Leivy, who by that time had gone to his north door to look about to see if he could discover what caused the shots and the dog to bark, looked across to the Scott home. The blind on the south window of the sitting room of the Scott house was down only about half way. Through this window he could see through the sitting room into the dining room of the Scott home, where there was a light, and there saw Ellison Scott rush across the dining room to the west side, then back in a stooped position; heard him helloa or call; thought he distinguished the words “My God, Ella help me”; then Scott moved quickly to the west side of the room. Leivy turned and spoke to his wife about what he saw and hurried across toward the Scott home, and heard a commotion west of the Scott house. The Carnageys heard his call for help while Scott was in the house, but heard it more distinctly after he went out the west door. Scott was then running west, calling loudly, “Folks, come quick, Ella is shot.” “My God, help,” and similar expressions. He ran west south of the Carnagey house, and Scott said, “Herschel, come quick.” Helms asked if he had a gun; Scott said, “No, but go over anyway.” Scott kept running west. He called to Clyde [309]*309McCullough and told him Ella was shot, and repeated calls for help and to come quick. At some time while running west along that block, either in answer to a question from Helms or McCullough as to where he was, or from his own volition, he stated he was in the garage. About the time he got south of the McCullough house he called for the doctor, “Oh, Doc, Ella is shot; come quick.” Dr. Morrison heard his call, jumped into his Ford sedan and drove rapidly to the Scott home. Scott saw him go and turned and ran back toward his home, but continued to make exclamations not addressed to anyone in particular, one being “I don’t think she will ever speak again.” Doctor Morrison saw a light in the Scott garage and first went there; seeing no one, he hurried to the house and went into the dining room from the west door. Leivy, Helms and Reverend Molesworth were there, and other neighbors came soon. Leivy and Helms were the first to get to the house. They went to the south front door; the screen was hooked; one ran around the house to the west, the other to the' east, and they entered the dining room about the same time. Mrs. Scott was lying in the dining room on the floor almost directly under the north light which was burning, her head to the south, almost on her back, slightly on her right side. Doctor Morrison went to her, felt her pulse, which was very weak, observed her countenance, pulled the dress down from the neck and saw a bullet wound in her right breast, which he thought would not cause death, and hastily gave her a hypodermic. He examined more closely and found a bullet wound in the left breast. While he was working with her Scott came in, went to his wife, and was making exclamations asking the doctor to help. Either of his own volition, or at the suggestion of someone, he took a chair and sat near the east dining room door, facing the doorway. He had his face in his hands, and made exclamations as to himself. Some of them were: “0, if I had only come in with her”; “My God, what will I do”; “0, if I had only come in the house first.” At one time he asked, “Has Doc come yet?” Someone said, “Yes, the doctor is here.” He said, “What did Doc say?” Someone told him the doctor had not said yet. Ella Scott did not speak after any of the neighbors or the doctor reached there, and died in about five or seven minutes. The doctor went over to Ellison Scott, put his hand on his shoulder and said, “Ellison, Ella is gone.” Scott replied, “My God, Doc, [310]*310don’t tell me that.” The doctor told him, yes, she is gone, and asked him to brace up and .tell what he knew about it. He did compose himself somewhat, and said in substance that when they drove into the garage the clutch on the car had been giving some trouble by sticking. His wife had called his attention to it, and he had noticed it. It was a trouble that had happened before to the car. His method of treating it was to block the clutch open, pour a light oil, gasoline or coaloil, on it, let it stand over night" or several hours, then put neat’s-foot oil on it; that he had two short pieces of 2 x 4 in the garage for the purpose of propping the clutch open; that-after driving into the garage that night he stayed in the garage for the purpose of doing that, and his wife had gone into the house; that he had propped the clutch open, raised the hood of the car, got the oil can and was stooped over with his head partially under the hood pouring oil on the clutch, when he heard the shots; that he was not sure of the direction -from which they came; that he set the oil can down on the sill of the car and went to the west door of the garage and looked up and down the street, but saw nothing; that his wife usually went to the door at any disturbance; that he looked towards the house and did not see her come to the door; that he then walked back through the garage and along the cement walk into the kitchen and then into the dining room and saw her lying on the floor; that he spoke to her, tried to raise her; that she did not speak; that he noticed the bullet wound and realized his wife had been shot; went to the west door and called for help; went back to his wife, spoke to her; she did not answer, but he noticed that she breathed; he then went out the west door, having to take time to unhook the screen, called for help and ran for the doctor. (And.this was his testimony on the witness stand.) Ellison Scott appeared to be greatly depressed and exhausted, and continued to sit in the chair by the door for some minutes. Mr. Carnagey then took him by the arm and said he better go over to his house, and as they went out of the house McCullough took him by the other arm and together they took him over to Carnagey’s house, where he lay on a bed and continued to moan and cry and to make exclamations as to himself. After Mrs. Scott was pronounced dead she was taken up and laid on the couch. Mr. Bishop, Mr. Helms and others present immediately started an investigation of the premises. The mayor and county [311]*311officials were notified. In the bedroom down stairs on a chair near the cedar chest was found a pile of boxes of silverware, such as a berry spoon, knives and forks, etc. It was not noticed that any of the bureau drawers had been pulled out or ransacked. The screens were examined, but no holes were found in them. Mrs. Scott’s nose glasses, which she usually wore, and her purse were on the dining table. The cement porch east of the dining room was lighted by an electric light in the ceiling which was switched on by a switch in the wall, and while Mr. Bishop and Mr. Helms were investigating about the porch, one of them snapped the switch but the light did not turn on; then he snapped it again and it did not turn on. He reached up and screwed the light bulb in and it lighted. Someone asked Mr. Scott if he knew who had screwed the bulb out, and he said “No.” In the dining room on the floor ■near the threshold of the door from the kitchen was found an empty .32 automatic shell. Another shell was found on. the floor of the dining- room near the east wall under the dining table. Near the north end of the cement porch and near the cistern was found a loaded shell, and between the cistern and garden a second loaded shell was found; all were .32' automatic Peters shells. At the garage they found the garage lights on, the car clutch propped open with 2 x 4’s, the hood raised on the right side, and an oil can containing coal oil sitting on the frame of the car. In the garden were found tracks of a man, also of a woman, and nearby weeds pulled recently but long enough for the dirt on the roots to dry. The tin spout or pipe leading from the guttering on the porch to the cistern was dented or marked as though some one had struck it with his foot, or stepped on it. The gun or pistol with which the shots were fired was not found, though a thorough search of the premises was made that night and the next day. Even the cistern was drained. The coroner reached there about five o’clock in the morning. An examination of the body disclosed two bullet wounds, one in the left breast directly to the right of the left nipple; this went directly through the body; the bullet was taken out on the back from just under the skin. This wound passed close to the base of the heart and caused death. The other bullet wound was in the right breast directly above the right nipple an inch and a half; it ranged upward; the bullet was not located. This wound would not have caused death unless infection developed. There [312]*312was also a bullet wound through the fleshy part of the left hand, near the base of the thumb, entering from the back of the hand and coming out through the palm. There were no powder burns on the clothing or flesh. The sheriff and other officers arrived early the next morning, and the sheriff talked to Scott. Earl Cox, a brother-in-law to Ella Scott, talked to Ellison Scott the next morning, and to Cox Scott told the story about being in the garage oiling the clutch of his car, but said after he heard the shots he went to the west door of the garage and after looking about he went to the house across the lawn to the north end of the cement porch. The. night of the tragedy one of the Carnagey girls telephoned to Arlene, at Pittsburg, and she came to the Carnagey home, reaching there at five o’clock in the morning. Ellison Scott and Arlene Scott stayed at the Carnagey home till after the funeral on Friday. The tragedy attracted many who came to the Carnagey home, which seemed to be rather a headquarters for the curious as well as the officials inquiring about the matter. After the funeral Scott was arrested, charged with the murder of his wife.
In addition to his plea of not guilty, the defendant offered evidence which, as he claims, tends to show that the homicide was committed by an intruder possibly fearing identification who was in the house when Mrs. Scott went in and turned the electric light on. In support of that theory attention is called to the evidence of the congenial relations between Scott and his wife; that the searchers that night found the garage light on, the car clutch propped open, the hood raised on one side and the can of coal oil sitting on the frame of the car, indicating the correctness of Scott’s statement that he was in the garage oiling the clutch when he heard the shots; that the gun or pistol with which the homicide was committed was never found, though a thorough search was made for it, and under the evidence it was practically impossible for Scott to have hidden it successfully after the shots were fired; that the best silver, in boxes, was found piled on a chair in the bedroom; that the screen on the east dining room door, usually kept hooked, was unhooked when Leivy entered that door; that the electric-light bulb on the porch had been screwed out while the light was snapped on; the two loaded cartridges found, one near the cistern and one between the cistern and the garden, indicating that the murderer either entered or left the house by way of the garden; the indentation in the spout to the cistern indicated that some one not familiar with the premises had struck his foot [313]*313against it or stepped on it in a hasty exit; the garden is in the shade of the house from the street light, and the shrubbery about the garden would enable one to get away from the house in that direction without being observed from the street or any neighboring house. Defendant offered to show that the house had been burglarized a short time before; that on the night of the tragedy and within a short time, not more than five minutes, after the shots were fired Laura Rowley at her home saw a man going west on the sidewalk just north of her house. She had a good view and description of him; it was not Mr. Bishop, whom she knew. She asked this man what was the trouble, and he pointed over to the house and said a woman had been killed over there. Her father, I. N. Rowley, saw this man and heard the conversation. A few minutes later about four blocks from the Scott home and in the direction of the stockyards a Mrs. Enloe had stepped out on her porch, which was near an open but unused street, and turned on the porch light and saw a man running past her house in the direction of the stockyards. She was able to get a fair description of him. A little later in the evening a freight train passing through the town slowed down near the stockyards. A man was seen on the train directly afterwards, was ordered off by the trainmen, whom he threatened, and he was told to get off at the next stop. The trainmen got a good view and description of him. The next stop was Pleasanton, and he did get off there. That each of these witnesses reported the matter promptly to the county officials, and were later shown a picture of Fred Slavens, whom each of them recognized as the man they saw. Fred Slavens’ home was at Pleasanton; he was notorious in that "he had been several times prosecuted and convicted and served time in the penal institutions both of Kansas and Missouri for burglary, larceny and similar offenses. The court excluded all of this offered evidence, and complaint is made of that ruling. The evidence should have been admitted.
When one is charged with a crime, and the prosecution relies upon circumstantial evidence for his conviction, the defendant is entitled to show as a part of his defense circumstances reasonably tending to show that another committed the crime.
Wigmore on Evidence, vol. 1, 2d ed., discusses the matter thus:
“§ 139. If X is charged with homicide, committed by himself alone, and it is shown in disproof that Y did the killing, X is clearly exonerated for the fact [314]*314that Y has done it is inconsistent with and exclusive of X’s guilt: There are, of course, cases in which X is by hypothesis in some way an accomplice of Y, either at a distance or as a personal sharer; and there is even the rare case of independent and double felonious acts upon the same object. To such cases the argument cannot apply. Apart from them, it is as cogent as an alibi. If the Man with the Iron Mask was the Due de Vermandois, he could not have been the General de Bulonde; and if the Tichborne claimant was Arthur Orton, he could not have been Roger Tichborne. The question that arises, from the point of view of the rules of evidence, is whether, in evidencing this doing by a third person as a fact of disproof, any unusual requirements should be made as to the strength of the evidence before it can be admitted. Thus, to prove A guilty of murder, evidence of his threats (i. e., a design) to commit it are always admissible; now, if the fact to be proved is that B committed the murder (as inconsistent with A’s guilt), why should not B’s threats be admitted, without further restriction, as A’s are? It is true that evidence of B’s threats alone would not go far towards proving B’s commission; but it is not a question of absolute proof nor even of strong probability, but only of raising a reasonable doubt as to A’s commission; and for this purpose the slightest likelihood of B’s commission may suffice or at least assist. The evidence of B’s threats, to be sure, may, in a given instance, be too slight to be worth considering but it seems unsound as a general rule to hold that mere threats, or mere evidentiary facts of any one sort, are to be rejected if unaccompanied by additional facts pointing towards B as the doer. Nevertheless, most courts have shown an inclination to make some such restriction, and to insist that two or more kinds of evidentiary facts pointing towards B must be offered, and that one kind alone will not be received. It is difficult to see the object of this restriction, because if the evidence is really of no appreciable value, no harm is done in admitting it while if it is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic, but should afford the accused every opportunity to create that doubt. A contrary rule is unfair to a really innocent accused.
Ҥ 140. Threats are perhaps the commonest kind of evidence offered for this purpose. The rulings differ widely in their effect; but in general a wholly unnecessary strictness is shown, and the illiberal attitude of some courts in this respect towards accused persons is in singular contrast with the maudlin tenderness otherwise often exhibited.
“§ 141. A motive as evidence is perhaps not of such value as a threat yet courts seem more inclined to receive it. There is no reason for requiring that it be coupled with other evidence in order to be admissible.”
Turning to the case we find quite a variety of holdings.
In Taylor v. The State, 81 Tex. Crim. Rep. 359,364, it was said:
“In cases depending upon circumstantial evidence, ‘the mind having nothing to rest upon seeks knowledge and light from every source.’ (Dubois v. State, 10 Texas Crim. App., 250.) Every reasonable hypothesis should be explored, and evidence which tends to show that another and not the accused committed the offense, or which may create in the minds of the jury a reasonable doubt as [315]*315to the identity of the slayer, or which presents a hypothesis which is inconsistent with the guilt of the accused or consistent with his innocence, should not be rejected by the court because the circumstances pointing to the accused on trial are more numerous or more cogent than those pointing to others.” (p. 364.)
In Ballou v. Humphrey, 8 Kan. 219, it was held:
“Where a plaintiff attempts to prove a material fact by circumstantial evidence, it is competent for the defendant to disprove the same by circumstantial evidence; and it is not necessary that the evidence of the defendant be of as high an order or as conclusive as that of the plaintiff. If it tends to disprove such fact, it is competent if otherwise sufficient.” (Syl.)
Many of the courts hold that where one is charged with, murder committed by one person, and the defendant denies the killing and offers evidence tending to show that the crime was or might have been committed by another, it is not'sufficient to show that the other was present in the neighborhood or that he fled from the community or that he made- an unsworn confession, or to show that he made threats, or that he had a motive, but that when any of these is shown together with other evidence which tends to connect him directly with the homicide itself, then the evidence is competent. (Walker v. The State, 139 Ala. 56; McElroy v. State, 100 Ark. 301; Tillman v. State, 112 Ark. 236; People v. Mitchell, 100 Cal. 328; Synon v. The People, 188 Ill. 609; Green v. State, 154 Ind. 655; The State v. Beck, 73 Iowa, 616; Etly v. Commonwealth, 130 Ky. 723; State v. Dyer, 154 La. 379; Commonwealth v. Abbott, 130 Mass. 472, 473, 475; Irvin v. State, 11 Okla. Crim. 301; State v. Myers, 12 Wash. 77; 30 C. J. 159, 166, 167, 168.)
And in such a prosecution where the state relies upon circumstantial evidence to convict the accused, the courts as a rule are much more liberal in receiving evidence of threats, motive, presence in the vicinity, flight, or confession, and circumstances tending to connect the third person with the offense, than in cases where there is direct evidence against the accused. It seems sound reasoning to say that in a case where the state relies upon circumstantial evidence to connect the accused with the crime, that the defendant who contends that the crime was committed by a third party and shows threats, motive, presence in the immediate vicinity at the time of the homicide, flight, or confession of such third person, might also rely upon circumstances tending to connect- such third person with the crime. In other words, the defendant ought not to be made in a given case to make a higher degree of showing with respect to the [316]*316third person than the state is required to make with respect to the accused. But in this case we need not resort to refinements of reasoning to determine the admissibility of defendant’s evidence. If the rule is followed as stated by Wigmore, supra, and Taylor v. The State, supra, there is no doubt of the admissibility of this evidence. If tested by the rule that there must be two kinds of evidence instead of one, we think it admissible. The third party was so near the scene of the homicide so soon thereafter, his identification and his previous history tend to show motive, his flight was shown, and the evidence admitted would bear the interpretation that one unfamiliar with the premises entered or left the place by way of the cistern and garden. So if two or more kinds of evidence are necessary to be produced, that offered comes within that rule.
Counsel for the state after discussing this matter and citing authorities say:
“The decisions which hold that a defendant may introduce proof pointing to the guilt of a third person all say that it must be legal evidence, which undoubtedly must mean that the evidence must be evidence which would be admissible against the third person in case he were on trial.”
Tested by that rule the evidence was unquestionably admissible, for had Fred Slavens been on trial charged with this crime there is no doubt of the admissibility of this evidence.
The conclusion reached requires a reversal of the case, but it will be necessary to discuss some of the other questions presented that may again arise on another trial.
In addition to evidence pertaining directly to the homicide the prosecution undertook to show a motive of defendant to murder his wife. Much of the time of the trial was taken up with this branch of the case.
It is the theory of the prosecution that Ellison Scott had fallen in love with Arlene, that he had been unduly intimate with her, and that he murdered his wife to get her out of the way. As tending to support that, it was brought out that Arlene had developed into a handsome, capable young woman. A few incidents prior to the tragedy were relied upon. The earliest of them was testified to by Gus Clark and his wife, which in substance is this: About eleven months before the tragedy there was a social gathering at the home of Mr. Rogers (Mrs. Rogers and Ella Scott were sisters), about twenty miles from La Cygne one Sunday afternoon, at which several married couples were invited; the refreshments were ice cream and [317]*317cake; Ellison Scott and his wife and Arlene were there; Gus Clark and his wife were there. All the people there were well acquainted. They were visiting, cutting up and having a good time; some of them in the dining room eating refreshments, some in the sitting room with the door open between. Clark and his wife were in the sitting room; Ellison Scott and Arlene were there sitting on the floor near the window. “They were scuffling and tickling one another and he was grabbing ahold of her knees,” and a little later they were scuffling and he had his arms part way around her.
•Another incident as testified to by Mr. Peters. About six or seven months before the tragedy, Peters was then working for Ellison Scott as a meat cutter; for some reason Ella Scott had acquired a dislike for Peters, and for a week or more had not spoken to him. On a Sunday morning Mrs. Scott came to Peters’ home; she was crying. Peters went with her to the Scott home; there were Ellison Scott and Arlene; Arlene took no part in the conversation but was crying. The witness described what took place:
“Well, we went in the house, and Mrs. Scott said, ‘Are you still mad,’ and something and I don’t know the exact words, but I will give it as near as I can, and so he says, ‘Well, how are you feeling,’ and she said, ‘Ellison, you are-not treating me right,’ and Ellison said, ‘Ella, I have done all I could for you and bought you everything I can! and that he bought her dresses and such as that, and he said, T went as far as I could, everything you asked for’; and she said, ‘I know that is true, Ellison,’ but she said ‘you crush me down and I can’t do nothing,’ and she also showed a blue place on her here and on her arm where he crushed her, and that is about all that I paid much attention to.”
“Q. Refreshing your recollection, was there anything said about ‘If you had caught me in the shape I caught you, you would kill me’?
“A. Yes, sir, she did say that — let’s see how was that, ‘If you caught me in the position I caught you in, you would kill me.’ ”
Another incident as testified to by Leona Rogers, a niece of Ella Scott’s: A short time before Arlene’s graduation in May, 1923, Scott, his wife, and Arlene were visiting at the home of Arlene’s parents one Sunday. After dinner, Arlene, whose father did not have an automobile, asked Ellison Scott if he would take her to see the members of the school board to try to engage a school. Ella Scott looked rather angry. Ellison Scott went over and had a private talk with her a few minutes. After that Ella Scott was not jovial as usual, but they did get in the car and all of them went to look for a school for Arlene. Ella Scott rode in the front seat with her husband. In the back seat were Arlene, her father, brother and Leona Rogers. Arlene stated to Leona while they were riding, re[318]*318ferring to Mr. and Mrs. Scott, that they had a little trouble between them at this time, and further stated it was just like living in hell over there. The witness thought that both Ellison Scott and his wife turned and looked back as though they had heard the remark.
Another, as testified to by Sarah Holt, mother of Ella Scott: After Arlene graduated Ellison and Ella Scott took her to the house of her parents, and went by and took Mrs. Holt. As they started home that evening “Ellison asked Arlene back, but Ella didn’t ask her back to La Cygne.”
The state offered in evidence a letter known in the record as “Exhibit G,” written by Ella Scott to her mother, Mrs. Holt. It is not dated, but is evidently before school was out in May, 1923. For the most part the letter was a chatty letter such as a daughter would write to her mother, but contained the following paragraph:
“Well school will soon, be out, and I’ll be glad. Aviene is getting homesick; don’t know how she will stand it to go to school. But I won’t have to worry about her anyway. Believe me, she sure gets on .our nerves sometimes. Don’t say anything about it to anyone. But she sure won’t mind a thing hardly we want her to do. But thank goodness it will soon be over.
“Well, I’ll quit and get to work. Write when you can.
“We will be down some time next summer ha ha.
“Burn this up. “Love to all,
Ella.”
The state also relied upon some instances which occurred after the tragedy which will be now noted. There was some evidence tending to show familiarity or jocularity between Ellison Scott and Arlene on a few occasions during the days they were at the Carnagey home before the funeral. And on the day of the funeral, when the relatives were getting ready to go home, Ellison Scott called Arlene and her mother and Mrs. Stephens, a sister to Arlene’s mother, into the parlor, and asked Arlene to stay in La Cygne, but her mother objected.
On July 18, 1923, Ellison Scott stopped off the train at Pittsburg, where Arlene was attending school, called her by telephone, had her go with him to a hotel where he registered for both of them as “James Bowman and wife, Kansas City.” They were assigned a room which they occupied for two or three hours in the afternoon. After they left the bed in the room showed it had been occupied on one side only and one pillow had been used; the towel in the room was damp at one end and there was a soiled handkerchief on the floor.
[319]*319A witness, Ed S. Lee, a prisoner in the county jail, where Ellison Scott was incarcerated on July 29, 1923, testified that he had a conversation with Scott in the jail a day or two later, in which Scott told him, in substance, that he, Scott, had sexual intercourse with Arlene at Pittsburg, and that he had previously had sexual intercourse with Arlene at La Cygne.
Timely and proper objections were made on behalf of defendant to the evidence concerning each of the incidents and transactions above mentioned and relied upon by the state. The objections were overruled, and these several rulings are assigned as error.
When a husband is being prosecuted for the murder of his wife and the prosecution undertakes to show that the accused’s motive was his intimacy with and infatuation for another woman to the extent that it destroyed his natural love for his wife and created within him a desire to get rid of her, the well established rule is that trouble between the husband and wife prior to the homieide and continuing up to that time, and any evidence which legitimately tends to show improper relations with the other woman, either before or soon after the homicide, is competent, but incidents which do not legitimately tend to show such facts, and which could not be construed to do so except by pure speculation, should not be admitted. (The State v. Reed, 53 Kan. 767, 773, 37 Pac. 174; Weyrick v. The People, 89 Ill. 90; State v. Sprouse, 177 S. W. 338 (Mo.); State v. Shoemaker, 183 S. W. 322 (Mo.); St. Louis v. The State, 8 Neb. 405; People v. Harris, 209 N. Y. 70; 30 C. J. 184, 185.)
Without discussing in detail the several incidents above mentioned, but applying to them the rule just stated, we hold that the evidence concerning the incident testified to by Gus Clark and wife, and that testified to by Sarah Holt, and plaintiff’s exhibit “G” should not have been admitted; as to the other incidents, the court’s rulings admitting the evidence were correct. Appellant calls our attention to explanations of some of those incidents, and to evidence tending to discredit others, but these are questions which go to the weight of the evidence and must be passed on by the jury. We purposely refrain from expressing any view as to the weight which should be given to the evidence pertaining to these incidents.
As tending to disprove the intimation that Arlene was intimate with Ellison Scott, the defendant offered to prove that Arlene Scott-kept company regularly with a young man during the last two years Arlene lived at the Ellison Scott home, and that on the occasion of [320]*320the week-end visit of Arlene to the Ellison Scott home, about ten days before the homicide, this young man spent Friday and Saturday evening with Arlene at the Ellison Scott home. This offer was refused. The evidence should have been admitted.
A witness called by defendant, Mrs. Leivy, testified that on the evening after the homicide she was at the Carnagey home in the sitting room where several were, that Ellison Scott and Arlene were sitting on the couch and both were crying; that Arlene put her arms about Mr. Scott’s shoulders and they both cried. The state objected to this as self serving, and the court struck it out. The ruling was erroneous; the state had undertaken to show familiarity or jocularity on the part of Ellison Scott and Arlene while at the Carnagey home, and defendant was entitled to rebut such showing.
The defendant offered in evidence certain letters that were written either to or by Arlene Scott. The writing was properly identified by a witness then on the stand. They were objected to because Arlene Scott was then in the court room, and the objection was sustained. It should have been overruled. If an instrument competent to be received in evidence is properly identified by one witness,” it is no objection to its' introduction that another person who might be called as a witness could also identify it.
Appellant complains that on several occasions during the progress of the trial counsel for the prosecution, and on one or two occasions the court, called attention in the presence of the jury to the fact that Arlene Scott was in the court room, and commented on what would or would not be competent evidence if the defense called her as a witness. These references should not have been made; they smack-too much of a stage play as distinct from a judicial inquiry. She had been subpoenaed by the state but was not used as a witness by the prosecution. An information charging her with the murder of Ella Scott was then pending in the same court. Under those circumstances there may have been valid reasons why the defense could not call her as a witness other than that which the state assumes to deduce from that fact. Then the state should rely for conviction upon evidence produced in court, and not depend upon deductions which it presumes to draw from what a witness, subpoenaed but not used by it, might or might not have testified to if put on the witness stand by the defendant.
Appellant complains that the court excluded evidence of grief. By many witnesses it was attempted to be shown that the nature of [321]*321defendant’s calls for help and for the doctor were from their tone, volume and the manner in which they were given, genuine calls for help which were calculated to and did arouse the entire neighborhood, and that his exclamations addressed to no one in particular, his manner, countenance, general appearance and demeanor indicated grief and extreme sorrow to the extent that overcame and incapacitated him for the time being and practically throughout the night. Questions designed to elicit the facts relative to this matter were objected to as calling for conclusions. These objections were sustained and the witnesses were asked to state what they saw and heard that the jury might form its own conclusions. This ruling was erroneous. The witnesses should describe what they saw and heard as accurately as possible, but these matters can be described in part-only by the witnesses stating what they saw and heard; they must be described by statements somewhat in the nature of conclusions.
In The State v. Baldwin, 36 Kan. 1, 10, 12 Pac. 318, it was said:
“Facts which are made up of a great variety of circumstances and a combination of appearances, which, from the infirmity of languages, cannot be properly described, may be shown by witnesses who observed them; and where their observation is such as to justify it, they may state the conclusions of their own minds. In this category may be placed matters involving magnitude or quantities, portions of time, space, motion, gravitation, value, and such as relate to the condition or appearance of persons and things (City of Parsons v. Lindsay, 26 Kan. 426; The State v. Folwell, 14 id. 105.) On the same principle, the emotions or feelings of persons, such as grief, joy, hope, despondency, anger, fear, and excitement, may be likewise shown; and hence the testimony objected to was properly admitted. (Lawson’s Expert and Opinion Evidence, rule 64; 2 Best on Ev., § 517.)”
Ed S. Lee was not present at the trial, and his testimony given at a former trial was read. To this the defendant objected for the reason that diligence had not been shown to subpoena him for this trial. At the time of trial he was residing and working in Missouri and refused to accept service and appear as a witness. The state could not compel his attendance, and it was entitled to use his former testimony. (The State v. Nelson, 68 Kan. 566, 75 Pac. 505; The State v. McClellan, 79 Kan. 11, 13, 98 Pac. 209; The State v. Stewart, 85 Kan. 404, 413, 116 Pac. 489.)
The defendant undertook to impeach Lee. The first witness called for that purpose, after testifying that he knew the general reputation of Lee for truth and veracity in the vicinity in which he lived and that it was bad, was asked if he would believe Lee under oath. [322]*322The court sustained an objection to this question. This ruling was erroneous. (The State v. Johnson, 40 Kan. 266, 19 Pac. 749.) When the defendant called its sixth witness on the impeachment of Lee, the court stopped the examination with the ruling that defendant had exhausted the number of witnesses on that question. No rule had been previously announced on .that question. The defendant complains of this ruling; it was erroneous. The number of impeaching witnesses that may be called by a party - rests in the sound discretion of the trial court and his ruling thereon will not be disturbed unless it is clear that discretion has been abused. What number should be permitted depends upon the nature of the case on trial and the importance of the testimony of the witness sought to be impeached. In a murder case, where general previous good character of defendant was sought to be established, a question not seriously contested, a rule announced at the beginning of the trial limiting the number of witnesses on that question to ten was approved as being within the discretion of the court in The State v. Elftman, 116 Kan. 214, 230, 226 Pac. 795. But here the testimony of Lee was the most .important evidence the state produced on the motive branch of the case; the only direct evidence of sexual intercourse between defendant and Arlene, either before or after the homicide. It was the testimony which makes competent evidence concerning the Pittsburg incident, and generally speaking it is the key to all the evidence of any consequence on the motive branch of the case. Lee’s testimony contained within it matter which defendant claims tends to weaken it. It was denied by defendant. Considering the testimony itself, its importance, and all the circumstances in connection with it, the defendant should have had practically an unrestricted opportunity to discredit it. It was error to limit the impeaching'witnesses to five.
Some questions are raised about the instructions. The court should have defined the word “motive,” since he was requested to do so. As the instructions stood, they were open to the interpretation that if the -jury believed the defendant was intimate with Arlene that would constitute a motive for the homicide. But that is not necessarily true; a man might be intimate with another woman and still have no desire to kill his wife.
Complaint is made of giving instruction No. 20, which reads:
“The court further instructs you, that positive testimony of witnesses that they heard certain sounds will outweigh the negative testimony of witnesses [323]*323that they did not hear such sounds, provided the witnesses are equally credible, but in connection with this instruction should be considered the relative means or opportunity of the several witnesses to hear such sounds.”
It may be doubted if this is a good instruction to give in any case (1 Wigmore on Evidence, 2d ed. § 664, note p. 1070; 23 C. J. 40-45; 16 Cr. App. Rep. 49), but we shall not determine that now. Its application in this case, as argued by counsel on both sides, is to the question of whether there was a scream of a woman between the two shots. The state argues that five witnesses for the state, who were a block or more from the Scott home, heard the scream of a woman between the two shots; hence Ellison Scott must have heard it, but he testified that he did not; hence his testimony was false, and the jury were justified in disbelieving his testimony about being in the garage when the shots were fired. This argument is fallacious. The five witnesses referred to are Mrs. Bishop, who lived a block west and across the street from the Scott house, Mrs. Rhynerson and her two daughters, who lived a block east and across the street, two of whom said they heard the scream between the two shots, and one said she heard, soon after the second shot, what she thought was a scream; and Rosie Wilkerson, who was three blocks north of the Scott home. Now, assuming that these witnesses did not mistake the barking of the dog for a scream, and assuming that what they heard was the scream of a woman, then it necessarily follows that there was a scream of a woman at that time; but it does not necessarily follow that the defendant testified falsely when he said he did not hear it. Mr. Bishop, who was at the house with Mrs. Bishop at the time, Mr. McCullough, Doctor Morrison, and Mr. Leivy, all _ called as witnesses for the state, and Mrs. Leivy, Reverend Molseworth and wife, Mr. and Mrs. Carnagey, and perhaps others, did not hear such a scream; all were as near or nearer to the Scott home than any of the witnesses who say they heard the scream; no intimation is made that these witnesses were testifying falsely about the matter. Then why should the defendant be said to be testifying falsely when he said he did not hear the scream? There is, of course, no reason. (Weir v. Railways Co., 108 Kan. 610, 612, 196 Pac. 442; K. C. Ft. S. & G. Rld. Co. v. Lane, 33 Kan. 702, 7 Pac. 587.) If the design or effect of giving this instruction was to assist the state in having the jury adopt a fallacious reasoning on this question, it was erroneous and prejudicial to defendant. Considering all the testimony relating to the matter, the question [324]*324whether there was a scream of a woman between the shots is of little or no consequence as bearing upon the guilt or innocence of the defendant.
In instructions 15 and 16 the court, after properly defining circumstantial evidence, added this paragraph:
“And I further instruct you that, when the evidence in a case consists of a chain of well authenticated and proven circumstances, it is often more convincing and satisfactory and gives a stronger ground of the assurance of the defendant’s guilt than the direct testimony of witnesses, unconfirmed by circumstances.”
This paragraph is objected to, first, because it places circumstantial evidence upon a higher plane than positive evidence, and second, because it deals with circumstantial evidence only as it applies to guilt, when in fact it may be as potent to prove innocence as it is to prove guilt. Both points are well taken. The paragraph should not have been included in the instructions. An instruction in the same language was held nonprejudicial in The State v. Evans, 115 Kan. 538, 540, 224 Pac. 492, where is was construed as meaning that “well authenticated and proven circumstances” might be more convincing than the testimony of witness who might not be telling the truth. But when jurors must be informed of the circumstances by the testimony of witnesses, there may be false testimony concerning circumstantial evidence as well as positive evidence. (See, 1 Wigmore on Evidence, 2d ed., § 26, and authorities diere cited; also 16 .C. J. 763.)
During the trial the state had shown that about eight or nine months before her death, Ella Scott had taken out a life insurance policy for $3,000, payable to her estate in the event of her death. The defendant requested an instruction that in the event of his conviction he could not inherit that life insurance, but the same would be inherited by her parents. That is the statute. (R. S. 22-133.) This was refused. It should have been given; it had a direct bearing upon the interest in the result of the trial of the witness Sarah Holt, and an indirect bearing upon such interest of the witnesses Mrs. Stephens, Mrs. Rogers, Leona Rogers, and Earl Cox.
Other questions are argued. Some of them have no merit, others have; but we think it unnecessary to discuss them. Perhaps they will not arise again.
The judgment will be reversed, with directions to grant a new trial.