$12 at witness' place of business on the night of the homicide. On cross-examination it was elicited that the witness had a memorandum in which he kept an account of his winnings from night to night, and that none were shown for the night of the 23d, and, after a critical inquiry touching the memorandum, the defendant moved to strike out his testimony on the ground that he was speaking from the book, and not from his recollection. But the witness did speak from his recollection, either from being refreshed by an inspection of the book, or independently of it when he was examined in chief, and the production of the book or memorandum was a matter called for by the defendant himself; and the fact that he spoke on cross-examination as to other matters exclusively from the memorandum constituted no valid reason for taking the evidence introduced by the state from the jury.

Another assignment of error goes to the introduction by the state of testimony tending to show the whereabouts of the other members of the crew the night of the assault, with the purpose of diverting suspicion from them as perpetrators of the crime. The testimony was not intended to show an alibi as to the crew in particular, and thereby raise a collateral issue, but to show with greater emphasis the absence of persons other than the defendant on shipboard, whose place of abode was there, and thus increase the probability that defendant was the guilty party. The testimony was therefore admissible.

There are many assignments of error based upon instructions asked and refused, all of which we have examined with care, both with reference to the argument of counsel and authorities cited; and suffice it to say they are not attended with sufficient merit to require further discussion.

All matters in controversy having been resolved in favor of the state, the judgment will be affirmed.

(41 Or. 294)

STATE v. AIKEN.

OF

2. See Criminal Law, vol. 14, Cent. Dig. § 1004.

defendant's confederate in his absence after the commission of the homicide.

Appeal from circuit court, Washington county; T. A. McBride, Judge.

James Aiken was convicted of murder in the second degree, and appeals. Reversed.

The defendant James Aiken was informed against, jointly with Henry Bacon and Budd Malim, for murder in the first degree, alleged to have been committed in Washington county on December 3, 1900, by shooting and killing one Jung Goey Shu, and, having been separately tried, was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for the term of his natural life, from which judgment he appeals.

Dan J. Malarkey and Geo. C. Stout, for appellant. D. R. N. Blackburn, Atty. Gen., and Harrison Allen, Dist. Atty., for the State.

MOORE, C. J. The state, adopting the theory that the deceased was killed in pursuance of a conspiracy formed by Aiken, Bacon, and Malim, was permitted, over the defendant's objection and exception, to introduce testimony descriptive of Bacon's appearance after the homicide, and detailing certain statements made by him at that time in the absence of the defendant. In order to show the applicability to the case at bar of the legal principle relied upon for reversal, it is deemed necessary to state the substance of the testimony given at the trial: Louie How, a Chinaman, as a witness for the state, testified, in effect: That about 9 o'clock in the evening of December 3, 1900, while he and Shu were occupying the same room in a dwelling in Washington county, three white men entered the house, and one of them, coming to their room, seized Shu and tried to drag him into another room, but witness pulled him back, and, in doing so, was struck over the head with a club. The door, being suddenly closed, caught the intruder's hand, whereupon a shot was fired, killing Shu. The witness then tried to escape by a window, and was again struck over the head with a club by Aiken, whom he recognized; having known him about five years. That as soon as he recovered from the effect of the blows he ran to a neighbor's, and informed him of the shooting; and, though he conversed with others, he did not tell of Aiken's participation in the homicide until about a month later, when he saw him at the police station in Portland, for the reason that it was difficult, on account of his illness, to remember distinctly all that occurred at that time. William Woodard, who kept a saloon in Portland, appearing for the state, testified that on December 3, 1900, Aiken (being employed by him as a bartender) left his place of business about half past 5 in the evening, and about 20 minutes thereafter his codefendant Bacon called and inquired for him; but the latter, soon leaving, did not return until about 11:45

that night. The district attorney, referring to Bacon's appearance at that time, told Woodard to "state what condition he was in." An objection to this command on the ground that it was incompetent, irrelevant, and immaterial having been overruled, and an exception allowed, witness stated that "he was muddy, and had a lick over the right eye, and his clothes were torn on the shoulder." The district attorney then said: "You can give any statement Henry Bacon made." The same objection having been interposed, overruled, and an exception allowed, as in the preceding case, he answered: "Well, his brother asked him-" Here the witness was interrupted by defendant's counsel, who said, "I object to any conversation had with his brother;" but the objection having been overruled, and an exception allowed, Woodard continued: "His brother was sitting, waiting for him, and he says: 'Where the devil have you been? Where did you get that mud? You must have had a scrap.' He said he had. His brother remarked he 'must have got the worst of it.' Henry said: 'You ought to see the other fellow.' That was about all that was said. They had a drink, and then left." This witness further testified that he did not see Aiken after he left the saloon on the evening of December 3, 1900, until the next morning, when the latter said to him: "I guess Hen [meaning Henry Bacon] killed a Chink [meaning a Chinaman] last night.' He said: 'We didn't get a damn cent, either. That one Chinaman tried to get out of a window, and he ran around the house and clubbed him, and that, when Hen fired, the Chink jumped five feet in the air, and fell, and that he wanted to take the gun, but Hen would not give it.'" The witness further testified that, prior to the homicide, Wong Jim, Shu's partner, came to the saloon, and, having exhibited some money, Aiken, who seemed to know him, thereafter suggested the idea of going out to his place in Washington county and "holding him up," but the witness declined to accept the proposition. William Bacon, a witness for defendant, testified that though his brother Henry was at Woodard's saloon December 3, 1900, at 10:35 o'clock in the evening, he was not cut or bruised; that his clothes were not torn, and there was nothing peculiar in his appearance,-and, explaining the statements made in Woodard's presence, declared that his brother said he had had a fight with a fellow downtown (meaning Portland), with whom he had difficulty a year before. The defendant Aiken, as a witness in his own behalf, denied all the incriminating statements imputed to him by Woodard, contradicted Louie How, and said he spent the evening of December 3, 1900, at his room in a lodging house in Portland, in company with a woman. Her deposition, taken in pursuance of a stipulation, corroborated his testimony in this particular. Several witnesses called by the defendant testified that Woodard's reputation for truth and

veracity in the neighborhood in which he resided was bad, and others stated that Louie How never intimated that the defendant was present at the time of the homicide until about a month thereafter.

It is contended by defendant's counsel that the court erred in permitting a witness to testify concerning Bacon's appearance after the homicide, and in allowing such witness to detail his declarations made in the defendant's absence, after the termination of the alleged conspiracy, and that the error was not cured by the subsequent instruction to the jury that, if they should find a conspiracy existed, any declarations made by Aiken's codefendants after the homicide could not be accepted by them as evidence of his guilt. Woodard's testimony, if believed by the jury, tended to connect Aiken and Bacon in the commission of the crime charged in the information; for he testified that, while Aiken was employed in his saloon, Bacon and Malim visited him every day; that Bacon called for Aiken the evening of the homicide; and that Aiken stated to the witness that Bacon shot the Chinaman, and detailed the manner in which he was killed. Testimony had been introduced tending to show that Shu was shot about 9 o'clock in the evening; that the road from the place where he was killed to Portland was muddy; and that Bacon was seen in Woodard's saloon, about six miles from the scene of the homicide, 2 hours and 45 minutes after it occurred, in the condition described by Woodard. If a conspiracy existed to rob these Chinamen, and one of them was killed in the attempt, the testimony having tended to show that Aiken and Bacon were present on that occasion, notwithstanding the conspiracy had terminated, evidence of Bacon's appearance so soon after the homicide, and probably before he had an opportunity to change his apparel, was admissible as against him. Thus, in People v. Cleveland, 107 Mich. 367, 65 N. W. 216, it was held that where, upon a trial for an assault with intent to murder, there is testimony tending to show that another person, jointly charged with the assault, accompanied the person on trial to the place of its commission, evidence of the appearance of such person shortly thereafter, tending to establish his complicity in the crime, is admissible as against the accused. To the same effect, see State v. Struble, 71 Iowa, 11, 32 N. W. 1; Ryan v. State, 83 Wis. 486, 53 N. W. 836. The rule under which evidence of the appearance of a jointly charged conspirator soon after the commission of a crime is admissible as against his confederate, who is being separately tried, is undoubtedly based upon the theory that such appearance is the necessary consequence of a joint participation in an unlawful enterprise, resulting from the undistorted rays of the afterglow of the fire of a criminal intent. The evidence of such appearance is not admissible, however, as against the accused, who is being separately

Hubbard, in Marion county, and as such were and are the owners and entitled to the possession of the property in controversy; that on the day named the defendant wrongfully, unlawfully, and without their consent took possession thereof, and has ever since retained the same. The defendant for answer denies that Mrs. Noblitt is a partner with Ziegler in the livery business, but alleges that her husband, W. Noblitt, is the real party in interest; that on July 19, 1900, he, as sheriff, attached Noblitt's interest in the property, to wit, an undivided one-half thereof, by taking the whole into his possession, under a writ of attachment in an action brought against Noblitt, and retained the same until taken from him in this action. There is no controversy as to the regularity of the attachment proceedings, nor as to Ziegler's ownership of an undivided half of the property. The single question in dispute is whether the title to the other half belongs to the plaintiff Mrs. Noblitt or to her husband, the defendant in the writ of attachment. After the plaintiffs had given evidence at the trial tending to sustain the allegations of their complaint, the defendant called as a witness one W. H. Bair, who testified that in the fall of 1900 W. Noblitt was in possession of the business; that, upon witness hiring a team of him, he agreed that the amount charged therefor should be credited upon an indebtedness he owed the witness, and also promised that after the busy season was over he would apply a part of the property in controversy on such indebtedness. This testimony was stricken out by the court, on motion, because Noblitt's declarations were not made in the presence of his wife, and were therefore not binding on her. The defendant also called as a witness one G. W. Fisher, who testified that he was present when a bill of sale conveying an undivided one-half of the property in controversy was executed by one Fryrear to Mrs. Noblitt; that she was not present at the time, but her husband paid the consideration, and transacted the business for her. The witness further said, in response to a question of defendant's counsel, that Mr. Noblitt told him he had a reason for having the bill of sale made in favor of his wife. Upon cross-examination, however, it was disclosed that Noblitt's statement on this subject was made a day or two after the bill of sale had been executed and delivered; whereupon the court struck out the testimony. At the conclusion of the evidence the defendant requested the court to charge the jury: (1) That, if Mrs. Noblitt had not made and filed a list of her personal property with the county clerk, her husband would be presumed to be the owner thereof, which presumption could only be overcome by affirmative evidence that she, and not her husband, owned the property; and (2) that if W. Noblitt was in charge of the livery stable with Ziegler, exercising acts of ownership over the property, he is to be considered the owner, unless

Mrs. Noblitt shows by clear and satisfactory evidence that it belonged to her. The court refused to give the instructions as requested, and plaintiffs recovered judgment, from which the defendant appeals, assigning such refusal and the exclusion of the testimony as

error.

L. K. Adams, for appellant. W. M. Kaiser, for respondents.

BEAN, J. (after stating the facts). There was no error in striking out the testimony of the witness Bair, to the effect that he hired a team of Noblitt, and that the latter agreed that its hire should be credited on his individual debt, and he would subsequently turn over to Bair as a further credit thereon a part of the property in controversy. Where the nature of one's possession is a subjectmatter of inquiry, his declarations concerning the title or explaining the character of his possession are admissible in evidence as part of the res gestæ. Bartel v. Lope, 6 Or. 321; 1 Greenl. Ev. (15th Ed.) § 109; People v. Vernon (Cal.) 95 Am. Dec. 70, note; Lehmann v. Chapel, 70 Minn. 496, 73 N. W. 402, 68 Am. St. Rep. 550. But this rule does not extend to the admission in evidence, as against third persons, of all statements made by a party in possession of property. To be admissible, they must be such as reflect light on or qualify the possession itself, or be so connected therewith as to illustrate its character. Thus, in Martin v. Hardesty (Ala.) 62 Am. Dec. 773, a witness was permitted to testify that a person, while in possession of a slave alleged to be stolen, said that the slave belonged to him, and that he had given another person a power of attorney, and employed him to sell her. It was held that it was proper to prove what the person in possession of the slave said as to the ownership, as that was explanatory of the possession, but that his statement in regard to authorizing another to sell the slave was incompetent because it related to a past transaction, and did not constitute a part of the res gestæ. And so, in this case, the declarations of Mr. Noblitt sought to be proved by Bair did not concern the ownership of the property in controversy, nor were they explanatory of the character of his possession. It was not an assertion of ownership on his part, nor any explanation of his possession, to agree that "the hire of such team should be credited upon his indebtedness to the witness," or that "after the rush of the season was over, he would turn over to the witness Bair a team." There was no evidence that any credit was ever given by, or team turned over to, Bair. The statements were not in conflict with Mrs. Noblitt's ownership of or interest in the property; nor were they a claim of ownership by her husband, or any explanation of his possession; hence they were clearly incompetent.

The same principle disposes of the declarations of the witness Fisher. Where evidence

of an act done by a party is admissible, his declarations made at the same time and in explanation thereof are also admissible, as part of the res gestæ. 1 Rice, Ev. 384; 1 Greenl. Ev. (15th Ed.) § 110. But this rule does not extend to a mere narrative of a past occurrence. The alleged statement to Fisher was made some time after the execution and delivery of the bill of sale, and did not accompany the act, but was a mere narrative of a past event, and hearsay.

There was no evidence as to whether Mrs. Noblitt had made and filed a list of the personal property in question, and for that reason it was not error to refuse to give the instruction as to the effect of her failure to do so. Moreover, the statute would seem to provide for the filing of such a list only when the property claimed was owned by the wife at the time of her marriage, or afterwards acquired by bequest, inheritance, or gift of some person other than her husband. Hill's Ann. Laws, § 3000. The property in controversy here was acquired by Mrs. Noblitt, if at all, by purchase, and hence does not come within the language of the statute. The other instruction requested and refused was covered by the general charge.

The judgment is therefore affirmed.

(137 Cal. 68)

manded the cause for a new trial in accordance with the opinion then rendered. In issuing the remittitur the clerk added to the aforesaid judgment the words, "appellants to recover costs of appeal herein," under the provisions of Rule 23 of this court (64 Pac. xi), which provides that "In all cases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification contains no directions as to costs of appeal, the clerk will enter upon the record, and insert in the remittitur, a judgment that the appellant recover the costs of appeal." After this remittitur had been filed in the superior court, the appellants filed with the clerk of that court a memorandum of their costs upon the appeal, and sought to recover the same from the plaintiff, the respondent herein. The plaintiff, however, obtained from the court an order perpetually staying the issuance of an execution for said costs against it. From this order the present appeal has been taken.

Neither in the decision of this court, nor upon the face of the remittitur, were designated the parties from whom the costs were to be recovered; and it becomes necessary, therefore, to examine the case itself for the purpose of determining who were the parties adverse to the appellants upon that appeal, since it is only those parties from whom they are entitled to recover their costs.

et al. (S. F. 2,279.)

(Supreme Court of California. July 22, 1902.) COSTS-INTERPLEADER-DISMISSAL OF PLAIN

TIFF-APPEAL.

1. Sup. Ct. Rule 23 (64 Pac. xi), requires that where the judgment appealed from is reversed, and the order of reversal contains no directions as to costs of appeal, the clerk will record and insert in the remittitur a judgment that the appellant recover such costs. Code Civ. Proc. § 386, provides that, whenever conflicting claims are made upon a person as to personal property, such person may bring an action against the conflicting claimants to compel them to interplead. Held, that where there was an interlocutory decree dismissing plaintiff in interpleader, and one of defendants appealed and secured a reversal, and the clerk, under the

rule, added to the judgment, in the remittitur, "Appellants to recover costs," the judgment for costs did not run against plaintiff.

Department 1. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Interpleader by the San Francisco Savings Union against E. B. Long and others. From an order staying issuance of an execution for costs against plaintiff, defendants appeal. Affirmed.

T. C. Spelling, for appellants. H. C. Campbell (Chas. N. Fox, of counsel), for respondent.

HARRISON, J. The question presented on this appeal is a portion of the aftermath of Savings Union v. Long, 123 Cal. 107, 55 Pac. 708. In that case this court reversed the judgment of the superior court, and re

action of interpleader brought by the plaintiff to have the defendants litigate between themselves and have determined to whom the money involved in the action should be paid. As also stated therein, in such cases there may always be a twofold contest and two sets of pleadings-First, as to the right of the plaintiff to bring the suit and force the defendants to interplead; and, second, if such right is maintained, the several complaints of the defendants, in which their reare set up. It was held that none of the despective rights to the subject in controversy fendants had taken issue with the plaintiff as to its right to compel the parties to interplead, and that those who had appeared had merely set out their respective rights as against the others; that upon this state of facts the plaintiff, having deposited the money in court, was dismissed from the case. It was also held that the action was properly brought by the plaintiff under section 386, Code Civ. Proc., to have determined the conflicting claims of the defendants in reference to the depósit. That section provides that whenever conflicting claims are made upon a person, relating to personal property, such person "may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves." By the order of the superior court dismissing the plaintiff from the action, and compelling the defendants to litigate their several "conflicting claims" to this fund among themselves, the plaintiff ceased