By the Court,
Baiuey, J.
At the spring term, A. D. 1863, of the District Court for Chase County, the appellant, John S. Wise, was indicted for the murder of Bobert Bailie on the 4-th day of July, A. D. 1862, in the County of Marion, which is attached to Chase for judicial purposes. At the same term the case was transferred to the County of Lyon for trial.
At the October term, A. D. 1863, of the District Court for the County of Lyon, Wise was tried and convicted of murder in the second degree, and sentenced to ten years confinement to hard labor.
[428]*428The exceptions taken to the rulings of the Court on the trial will be considered in the same order in which they appear upon the record.
The first exception taken is to the ruling of the Court below that Anna Bailie, the wife of the deceased, who was made a witness for the defense, should not answer the question put to her by defendant’s counsel, to-wit: “If you know, state to the jury the comparative strength of the deceased and John S. Wise?”
How far the mere opinion or belief of Mrs. Bailie, as to the comparative strength of Wise and her husband would have been evidence for the jury, it is not necessary for us to determine, though wo incline strongly to the belief that the fact's she had previously stated in detail to the jury, of what occurred at the time of the homicide—the grapple, thé struggle upon the ground, Bailie uppermost with the knife in his hand which he had wrenched'from Wise—were more legitimate and satisfactory evidence'as to which was the stronger, than any answer she would have given in response to the demand of the counsel if the Court had permitted the answer to be given. However this may be, we are unanimously of the opinion that the subsequent admission by the counsel for the State that the deceased was a much stronger man than Wise, as a fact proved, remove all grounds of objection on this point. Itadmitted, as proved, all that ?the most favorable answer which could have been given by the witness would have proved. This last conclusion seems to be well sustained by authority. 7 Gray, 92 ; Stephens v. the People, 19 N. Y., 549 ; 1 Grant's cases, (Penn.) 329.
The second exception was to the ruling of the Court refusing to permit Mrs. Bailie to answer the following question, to-wit: “ If you know, state to the jury the character and temper of the deceased, Robert Bailie, when angry and excited, and whether or not he'was at such times a dangerous or desperate man ?”
[429]*429The general rule on this subject is thus stated by Wharton : “ On the trial of an indictment for homicide, evidence to prove that the deceased was well known and understood generally by the accused and others to be a quarrelsome and savage man is inadmissible.” * * * * “ The rule undoubtedly is, the character of the deceased can never be made a matter of controversy, except when involved in the res gestae.” Amer. Grim Law, See. 641.
In a late case in Massachusetts the defendant offered to prove that the general character and habits of the deceased were those of a quarrelsome, fighting, vindictive and brutal man of great strength, as a circumstance tending to show the nature of the provocation under which the defendant acted, and that he had reasonable cause to fear great bodily harm.” Objection being made, the Court held (Shaw, O. J. and Bigelow and Metcalf, J. J.,) that, “ The evidence was inadmissible. If such evidence were admitted on behalf of the prisoner it would be competent for the commonwealth to show that the deceased was of a mild and peaceable character. SugIi evidence is too remote and uncertain to_ have any legitimate bearing on the question at issue. The provocation under which the defendant aeted must be judged of by the res gestae. And the evidence 'must be confined to the facts and circumstances attending the assault by the. deceased upon the defendant.” (Com. v. Hilliard, 2 Gray, 294.) So in California in a- case of indictment for murder, the Court held the following language:
“ The other point made is the exclusion of evidence of the chai’acter of the deceased for turbulence, recklessness and violence. The rule is well settled that the reputation of the deceased cannot be given in evidence, unless at the least the circumstances of the case raise a doubt in regard to the question whether the prisoner acted in self-defense. It is no excuse for a murder that the person murdered was a bad man, but it has been held that the reputation of the deceased may sometimes be given in proof to show that [430]*430the defendant was justified in believing himself in danger, where the circumstances of the contest are equivocal. But the record must show this state of case. This does not.” The People v. Murry, 10 Cal., 309.
The evidence in the case at bar shows the parties to have been -some eight or nine paces apart at the time of the shooting,—Wise with a loaded double-barreled shot-gun in his hand and Bailie with his knife, and that Bailie had stopped before Wise shot him. Under such circumstances, we think Wise could hardly be,justified in considering himself in danger,- having so much the advantage in point of arms. _ . ....
However this may be the whole circumstances as they were detailed in proof upon the trial, and as they appear before us in. the bill of exceptions, are sufficient, in our judgment,' to show the character of the deceased so far as it was necessary or proper to show it on the defense, and as the defendant could not haye been prejudiced by the ruling, this Court will not disturb the verdict.
The third exception is to the refusal of the judge who tried the cause, to charge the jury. “ That the defendant is entitled to the benefit of every reasonable doubt upon every material fact involved in the case.” Which charge the Court refused to give as asked for, but charged the jury’ as follows ; “ That the defendant is entitled to the benefit of every reasonable doubt of his guilt remaining in the. minds of the’jury after canvassing the whole of the testimony in the case.”
We think the law on this point is correctly stated by the Court, and that the exception was not well taken.
The fourth objection is that the indictment is bad: “ 1st. because it does not appear from it that it was found by a grand jury of the County of Chase.”
The language of the indictment itself, - is as follows:
“ State of Kansas, Chase County, ss :
“ In the District Court of the Fifth Judicial District, sitting in Chase County, April Term, A. D. 1863.
[431]*431“ The jurors of the grand jury of the State of Kansas duly drawn, empanneled, charged and sworn to inquire of offenses committed within the body of the County of Chase, and within the County of Marion, attached to said County of Chase for judicial purposes,” &c.
“ Section 95 of the Code of Criminal Procedure, provides that, “ The indictment is sufficient if it can1 be understood therefrom, first, that the indictment was found by the grand jury of the county in which the Court is held.”
We think the indictment in this case fully answers this requirement of the statute.
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By the Court,
Baiuey, J.
At the spring term, A. D. 1863, of the District Court for Chase County, the appellant, John S. Wise, was indicted for the murder of Bobert Bailie on the 4-th day of July, A. D. 1862, in the County of Marion, which is attached to Chase for judicial purposes. At the same term the case was transferred to the County of Lyon for trial.
At the October term, A. D. 1863, of the District Court for the County of Lyon, Wise was tried and convicted of murder in the second degree, and sentenced to ten years confinement to hard labor.
[428]*428The exceptions taken to the rulings of the Court on the trial will be considered in the same order in which they appear upon the record.
The first exception taken is to the ruling of the Court below that Anna Bailie, the wife of the deceased, who was made a witness for the defense, should not answer the question put to her by defendant’s counsel, to-wit: “If you know, state to the jury the comparative strength of the deceased and John S. Wise?”
How far the mere opinion or belief of Mrs. Bailie, as to the comparative strength of Wise and her husband would have been evidence for the jury, it is not necessary for us to determine, though wo incline strongly to the belief that the fact's she had previously stated in detail to the jury, of what occurred at the time of the homicide—the grapple, thé struggle upon the ground, Bailie uppermost with the knife in his hand which he had wrenched'from Wise—were more legitimate and satisfactory evidence'as to which was the stronger, than any answer she would have given in response to the demand of the counsel if the Court had permitted the answer to be given. However this may be, we are unanimously of the opinion that the subsequent admission by the counsel for the State that the deceased was a much stronger man than Wise, as a fact proved, remove all grounds of objection on this point. Itadmitted, as proved, all that ?the most favorable answer which could have been given by the witness would have proved. This last conclusion seems to be well sustained by authority. 7 Gray, 92 ; Stephens v. the People, 19 N. Y., 549 ; 1 Grant's cases, (Penn.) 329.
The second exception was to the ruling of the Court refusing to permit Mrs. Bailie to answer the following question, to-wit: “ If you know, state to the jury the character and temper of the deceased, Robert Bailie, when angry and excited, and whether or not he'was at such times a dangerous or desperate man ?”
[429]*429The general rule on this subject is thus stated by Wharton : “ On the trial of an indictment for homicide, evidence to prove that the deceased was well known and understood generally by the accused and others to be a quarrelsome and savage man is inadmissible.” * * * * “ The rule undoubtedly is, the character of the deceased can never be made a matter of controversy, except when involved in the res gestae.” Amer. Grim Law, See. 641.
In a late case in Massachusetts the defendant offered to prove that the general character and habits of the deceased were those of a quarrelsome, fighting, vindictive and brutal man of great strength, as a circumstance tending to show the nature of the provocation under which the defendant acted, and that he had reasonable cause to fear great bodily harm.” Objection being made, the Court held (Shaw, O. J. and Bigelow and Metcalf, J. J.,) that, “ The evidence was inadmissible. If such evidence were admitted on behalf of the prisoner it would be competent for the commonwealth to show that the deceased was of a mild and peaceable character. SugIi evidence is too remote and uncertain to_ have any legitimate bearing on the question at issue. The provocation under which the defendant aeted must be judged of by the res gestae. And the evidence 'must be confined to the facts and circumstances attending the assault by the. deceased upon the defendant.” (Com. v. Hilliard, 2 Gray, 294.) So in California in a- case of indictment for murder, the Court held the following language:
“ The other point made is the exclusion of evidence of the chai’acter of the deceased for turbulence, recklessness and violence. The rule is well settled that the reputation of the deceased cannot be given in evidence, unless at the least the circumstances of the case raise a doubt in regard to the question whether the prisoner acted in self-defense. It is no excuse for a murder that the person murdered was a bad man, but it has been held that the reputation of the deceased may sometimes be given in proof to show that [430]*430the defendant was justified in believing himself in danger, where the circumstances of the contest are equivocal. But the record must show this state of case. This does not.” The People v. Murry, 10 Cal., 309.
The evidence in the case at bar shows the parties to have been -some eight or nine paces apart at the time of the shooting,—Wise with a loaded double-barreled shot-gun in his hand and Bailie with his knife, and that Bailie had stopped before Wise shot him. Under such circumstances, we think Wise could hardly be,justified in considering himself in danger,- having so much the advantage in point of arms. _ . ....
However this may be the whole circumstances as they were detailed in proof upon the trial, and as they appear before us in. the bill of exceptions, are sufficient, in our judgment,' to show the character of the deceased so far as it was necessary or proper to show it on the defense, and as the defendant could not haye been prejudiced by the ruling, this Court will not disturb the verdict.
The third exception is to the refusal of the judge who tried the cause, to charge the jury. “ That the defendant is entitled to the benefit of every reasonable doubt upon every material fact involved in the case.” Which charge the Court refused to give as asked for, but charged the jury’ as follows ; “ That the defendant is entitled to the benefit of every reasonable doubt of his guilt remaining in the. minds of the’jury after canvassing the whole of the testimony in the case.”
We think the law on this point is correctly stated by the Court, and that the exception was not well taken.
The fourth objection is that the indictment is bad: “ 1st. because it does not appear from it that it was found by a grand jury of the County of Chase.”
The language of the indictment itself, - is as follows:
“ State of Kansas, Chase County, ss :
“ In the District Court of the Fifth Judicial District, sitting in Chase County, April Term, A. D. 1863.
[431]*431“ The jurors of the grand jury of the State of Kansas duly drawn, empanneled, charged and sworn to inquire of offenses committed within the body of the County of Chase, and within the County of Marion, attached to said County of Chase for judicial purposes,” &c.
“ Section 95 of the Code of Criminal Procedure, provides that, “ The indictment is sufficient if it can1 be understood therefrom, first, that the indictment was found by the grand jury of the county in which the Court is held.”
We think the indictment in this case fully answers this requirement of the statute. Felonies áre offenses against the peace and dignity of the State, and are prosecuted and punished by the State. The prosecution is instituted in its name by a grand jury organized in each county in pursuance of the laws of the State, to inquire in its behalf as to infractions of its laws in such county.
2d. “The indictment is bad for uncertainty as to the number, location and character of the wounds, and because it states an impossibility in charging in the second count, that Bailie received c one mortal wound ’ on the mouth and the left side, and upon the throat and near the heart.”
Upon examination of the indictment it is very apparent that there has been an omission of the word “ wounds,” and that the omission being supplied.that part of the indictment excepted to would read as íollows:
“ Which said shot so discharged by force of the said gunpowder, did him the said Robert Bailie, strike and penetrate, giving to him the said Robert Bailie then and there with the shot aforesaid, several (wounds) in and upon the mouth and the left side, and upon the throat and near the heart of him the said Robert Bailie one mortal wound, of which said mortal wound the said Robert Bailie did die.” Had such been the reading it is evident that no exception could have been taken, and if we treat as surplussage the words “ several —— in and upon the mouth and the left side, and,” there still remains a distinct charge of giving [432]*432to liim the said Robert; Bailie then and there with the shot aforesaid, * * * upon the throat and near the heart of him the said Robert Bailie one mortal wound, of which mortal wound the said Robert Ba'lio did die.”
This is certain and explicit, and the words proposed to be omitted do not vitiate nor impair their force.
Section 95 Code of Criminal Procedure provides that the indictment is sufficient if it can be understood therefrom, -z- -z- * “Fifth. That the offense charged is stated with such a degree of certainty, that the Court may pronounce judgment upon conviction according to the right of the case;” and Sec. 96 of the same act, that “no indictment may be quashed or set aside. * *’ * Sixth. For any surplus-sage or repugnant allegation when ■ there is sufficient matter alleged to indicate the crime and person charged. Nor, Seventh. Eor any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”
In view of these statute provisions we must hold the indictment good beyond question.
Judgment affirmed.
Ceoziek, C. J., and Kingman, J., concurring.