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Mr. John J. Weed, for plaintiff in error: The contract between the plaintiff in error and J. G. Halsell, dated May 22, 1874, was a legal contract, and having been fully performed by the plaintiff in error, he was entitled to be paid the compensation therein stipulated to be paid upon such performance.

Wylie v. Coxe, 56 U. S. 15 How. 416 (14: 753); Wright v. Tebbitts, 91 U. S. 252 (23: 320); Stanton v. Embry, 93 U. S. 548 (23: 983); Taylor v. Bemiss, 110 U. S. 42, 46 (28: 64, 65).

The contract between the plaintiff in error and Halsell, being a contract authorized by law, was protected by the Constitution from the effect of any act of Congress which would impair its obligation or deprive the plaintiff in error of such rights of property as were therein secured to him.

Union P. R. Co. v. United States ("Sinking Fund Cases") 99 U. S. 700 (25: 496); Fletcher v. Peck, 10 U. S. 6 Cranch, 87 (3:162); Bowman v. Middleton, 1 Bay, 252; Wilkinson v. Leland, 27 U. S. 2 Pet. 627 (7: 542); Terrett v. Taylor, 13 U. S. 9 Cranch, 43 (3: 650); Ervine's Appeal, 16 Pa. 256, 55 Am. Dec. 499; People v. Morris, 13 Wend. 325: United States v. Klein, 80 U. S. 13 Wall. 128 (20: 519).

Such claims, although no provision of law existed for the ascertainment of their validity and amount, constituted such rights of property as are recognized by this court.

Eroin v. United States, 97 U. S. 392 (24: 1065); Comegys v. Vasse, 26 U. S. 1 Pet. 193 (7: 108).

A statute which is remedial in its character and provides for the judicial determination of claims against the United States, is neither "an act of grace" a bounty, a gift, nor a donation.

DeGroot v. United States, 72 U. S. 5 Wall. 419 (18: 700); United States v. Clyde, 80 U. S. 13 Wall. 35 (20: 479); United States v. Anderson, 76 U. S. 9 Wall. 56 (19:615).

The acceptance by the plaintiff in error of the sum of $1,500 allowed by the court of claims in its judgment in the case of Halsell v. United States, and its subsequent payment by the United States to the plaintiff, did not render the contract made by Halsell with the plaintiff, not enforceable in the courts of the United States.

Redfield v. United States, 27 Ct. Cl. 473. The receipt by the plaintiff of the sum of $1,500, allowed by the court of claims and paid by the United States, did not satisfy or discharge the obligations of the defendant in error to the plaintiff under the contract of May 22, 1874.

Bostwick v. United States, 94 U. S. 53 (24: 65).

Messrs. Henry C. Coke and Julia F. Halsell, in person, for defendant in error.

Mr. Justice Gray delivered the opinion of the court:

In determining the construction and effect of the contract sued on, it is important to keep in mind the acts of Congress and the decisious of this court bearing upon the subject.

In Kendall v. United States, 74 Ü. S. 7 Wall. 113 [19: 85], certain attorneys in 1843 (before Congress had passed any act regulating assignments of claims against the United States)

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made an agreement with the representatives of the Western Cherokees, a branch of the Cherokee tribe of Indians, to prosecute a claim of the Western Cherokees against the United States, and to receive directly from the United States 5 per cent of all sums collected upon the claim. By a treaty between the United States and the Cherokee tribe in 1846, it was agreed that certain sums found due to the Western Cherokees should be paid by the United States directly to the beads of families per capita, and should not be assignable. 9 Stat. at L. 874. And by the act of September 30, 1850, chap. 91, making an appropriation of the sum necessary to fulfil that treaty, Congress provided that "in no case shall any money hereby appropriated be paid to any agent of said Indians, or to any other person or persons than the Indian or Indians to whom it is due." 9 Stat. at L. 556. This court held that the attorneys could not maintain a suit in the court of claims to recover, as compensation for their services in procuring the treaty and appropriation, the 5 per cent that the Indians had agreed should be paid to the attorneys_by the United States; and, speaking by Mr. Justice Miller, said: "We apprehend that the doctrine has never been held that a claim of no fixed amount, nor time or mode of payment, a claim which has *never received the assent[78 of the person against whom it is asserted, and which remains to be settled by negotiation or suit at law, can be so assigned as to give the assignor an equitable right to prevent the original parties from compromising or adjusting the claim on any terms that may suit them.

We have no hesitation in saying that the United States, under the circumstances, had the right to make the treaty that was made, without consulting plaintiffs or incurring any liability to them. The act of Congress which appropriated the money only followed the treaty in securing its payment to the individual Indians without deduction for agents. both the act and the treaty are inconsistent with the payment of any part of the sum thus appropriated to plaintiffs." 74 U. S. 7 Wall. 116-118 [19: 86].

And

By the act of February 26, 1853, chap. 81, § 1, "all transfers and assignments hereafter made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and al' powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the pay. ment thereof." 10 Stat. at L. 170. This section has been re-enacted, in almost the same words, in U. S. Rev. Stat. § 3477.

At the first term of this court after the passage of the act of 1853, it was said by this court, speaking by Mr. Justice Grier, that "this act annuls all champertous contracts with agents of private claims." Marshall v. Ballimore & O. R. Co. 57 U. S. 16 How. 314, 336 [14: 953, 962]. And the act has since been held by this court to include all specific assign.

ments, in whatever form, of any claim against | By several decisions of this court, indeed, the United States under a statute or treaty, beginning at December term, 1853, contracts whether to be presented to one of the executive for contingent fees, by which attorneys emdepartments, or to be prosecuted in the court ployed to prosecute claims against the United of claims; and to make every such assignment States were to be allowed a proportion of the void, unless it has been assented to by the amount recovered in case of success, and nothUnited States. United States v. Gillis, 95 U. S. ing in case of failure, were held to be lawful 79] 407 [24: 503]; *Spofford v. Kirk, 97 U. S. and valid. Wylie v. Coxe (1853) 56 U. S. 15 484 [24:1032]; McKnight v. United States, 98 U. How. 415 [14: 753]: Wright v. Tebbitts (1875) S. 179 [25: 115]; St. Paul & D. R. Co. v. United 91 U. S. 252 [23: 320]: Stanton v. Embry (1876) States, 112 U. S. 733 [28: 861]; Hager v. 93 U. S. 548 [23: 983]; Taylor v. Bemiss (1883) Swayne, 149 U. S. 242, 247 [37: 719, 721]. 110 U. S. 42 [28: 64]. The reason for upholding the validity of such contracts was first stated by Mr. Justice Miller, in Taylor v. Bemiss, as follows: "The well-known difficulties and delays in obtaining payment of just claims, which are not within the ordinary course of procedure of the auditing officers of the government, justify a liberal compensation in successful cases, where none is to be received in case of failure. Any other rule would work much hardship in cases of creditors of small means, residing far from the seat of government, who can give neither money nor personal attention to securing their rights." 110 U. S. 45 [28: 65]. The proportion allowed to the attorneys in Wylie v. Core was one twentieth; in Wright v. Tebbetts, one tenth; in Stanton v. Embry, one fifth; and in Taylor v. Bemiss, one half.

In Spofford v. Kirk, above cited, the owner of a claim against the United States for military supplies had, before its allowance or the issue of a warrant for its payment, drawn upon the attorneys employed by him to prosecute it an order to pay to a third person a certain sum out of any moneys coming into their hands on account of the claim; the order had been accepted by the drawees, and sold by the payee to a purchaser in good faith for value; and the drawer and acceptors, after the issue of the treasury warrant, declined to admit the validity of the order. It was adjudged that the accepted order, otherwise an equitable assignment, was void, by reason of the statute, and therefore passed no right in the fund, and could not be enforced against the drawer and acceptors.

That decision has never been overruled or questioned by the court, although the act has been held not to apply to general assignments made by a debtor of all his property for the benefit of his creditors, whether under a bankrupt or insolvent law, or otherwise (Erwin v. United States, 97 U. S. 392 [24: 1065]; Goodman v. Niblack, 102 U. S 556 [26: 229]; Butler v. Goreley, 146 U. S. 303 [36: 981]); nor to enable the original claimant to recover of the United States a sum once paid by the United States to his attorney in fact, holding a power of attorney, made before the allowance of the claim and the issue of the warrant, and remaining unrevoked (Bailey v. United States, 109 U. S. 432 [27: 988]); nor to invalidate a contract of partnership in furnishing supplies to the United States, or a promise by one to another of the partners to pay a sum already due him under the partnership articles, out of money to be received from the United States for such supplies (Hobbs v. McLean, 117 U. S. 567 [29: 940]); nor | to affect the right of a mortgagee of real estate leased to the United States, or of a pledgee of the rents thereof, to recover from the mortgagors and pledgeors the amount of rents paid to them by the United States. Freedman's Sav. & T. Co. v. Shepherd, 127 U. S. 494 [32: 163]. 80] *In the latest case in which the act was considered, the court, speaking by the present Chief Justice, said: "The legislation shows that the intent of Congress was that the assign ment of naked claims against the government for the purposes of suit, or in view of litigation or otherwise, should not be countenanced. At common law, the transfer of a mere right to recover in an action at law was forbidden as violating the rule against maintenance and champerty; and, although the rigor of that rule has been relaxed, an assignment of a chose in action will not be sanctioned when it is opposed to any rule of law or public policy.' ." Hager v. Swayne, 149 U. S. 242, 247, 248 [37: 719, 721].

Congress has evidently considered that, in some cases at least, to permit contracts to be made for the payment to attorneys, by way of contingent fee, of a large proportion of the amount to be recovered, is in danger of leading to extortion and oppression.

*It was apparently owing to such con- [81 siderations that Congress, in the act of March 3, 1891, chap. 538, when conferring upon the court of claims jurisdiction of claims arising from Indian depredations, including such claims as had been examined and allowed by the Department of the Interior, and providing that the judgments of that court, unless reversed or modified on rehearing or appeal, should “be a final determination of the causes decided, and of the rights and obligations of the parties thereto," enacted, in § 9, that “all sales, transfers, or assignments of any such claims, heretofore or hereafter made, except such as have occurred in the due administration of decedents' estates, and all contracts heretofore made for fees and allowances to claimants' attorneys, are hereby declared void; and all warrants issued by the Secretary of the Treasury in payment of such judgments shall be made payable and delivered only to the claimant or his lawful heirs, executors, or administrators, or transferee under administrative proceedings, except so much thereof as shall be allowed the claimant's attorneys by the court for prosecuting said claim, which may be paid direct to such attorneys; and the allowances to the claimant's attorneys shall be regulated and fixed by the court at the time of rendering judgment in each case, and entered of record as part of the findings thereof; but in no case shall the allowance exceed 15 per cent of the judgment recovered, except in case of claims of less amount than $500, or where unusual services have been rendered or expenses incurred by the claimant's attorney, in which case not to exceed 20 per cent of such judgment

shall be allowed by the court." 26 Stat. at L. | established principle of jurisprudence, in all 851-854.

The contract now sued on begins in the form of a power of attorney, appearing on its face to have been intended to be signed by several persons, constituting and appointing Ball their attorney "to receive, and to make, sign, and give all necessary acquittances and receipts for, one half of all money which may be received by him, as our attorney at law, for prosecuting claims against the United States government" on account of Indian depreda82]tions; and the instrument ends with *this clause: "Said one half being the amount agreed by us to pay him of all that he may recover of said government for said depredations." It is signed by Halsell only.

The instrument was a unilateral contract, not signed by the attorney, nor containing any agreement on his part, and-so long at least as it had not been carried into executionmight be revoked by the principal, or might be disregarded by him in making a settlement with the United States, or might be treated by him as absolutely null and void in any contest between him and the attorney. Kendall v. United States, 74 U. S. 7 Wall. 113 [19: 85]; Spofford v. Kirk, 97 U. S. 484 [24: 1032]; Bailey v. United States, 109 U. S. 432, 439 [27: 988, 9901; Missouri v. Walker, 125 U. S. 339 [31: 769].

civilized nations, that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.' Beers v. Arkansas, 61 U. S. 20 How. 527, 529 [15: 991, 992]; Re Ayers, 123 U. S. 443, 505 [31: 216, 229]; Hans v. Louisiana, 134 U. S. 1, 17 [33: 842, 848].

Much reliance was placed by the plaintiff upon the recent decision of the supreme judicial court of Massachusetts in Duris v. Com. 164 Mass. 241 [30 L. R. A. 743], in which an agent whom the state of Massachusetts had employed to prosecute a claim of the state against the United States, and to whom the state had agreed to pay, in full compensation for his services, 2 per cent of the amount recovered, was held to be entitled to recover from the state the amount of the compensation so agreed upon; notwithstanding that Congress, in the act appropriating money to pay the By the very terms of the contract the at-claim of the state, had provided that no part of torney was to be paid only out of money recovered and received by him from the United States. Although he prosecuted the claim before the Department of the Interior, and that department recommended payment of a certain sum upon the claim, yet before that sum had been paid, or Cougress had made any ap. propriation for its payment, and, therefore, before he had either recovered or received any money from the United States, or was entitled to any compensation by the terms of the contract now sued on, Congress passed the act of March 3, 1891, chap. 358.

the money should be paid by the state to any attorney or agent under a previous contract between him and the representative of the state. But the case was treated by the court as not free from difficulty; and it differed in several respects from the case at bar. The original agreement between the agent and the state was expressly authorized by its legislature, and was therefore lawful and valid when made. That agreement, as construed by the court, did not necessarily require the agent's compensation to be paid out of money received from the United States. The act of Congress, as the court observed, "did not undertake to declare[84 void any contracts theretofore made between the representative of the state and an agent or attorney." It did provide that no part of the money received from the United States should be paid by the state to its agent. The act was passed after the services in question had been substantially performed. The act itself fixed the fact and the amount of the liability of the United States; appropriated the money to pay it; and left nothing to be ascertained by subsequent judicial proceedings.

By this act, as already stated, Congress, while giving to the court of claims jurisdiction and authority to inquire into and finally adjudicate certain claims arising from Indian depredations, including such as had been examined and allowed by the Department of the Interior, not only declared void all sales, transfers, or assignments of such claims, theretofore or thereafter made,-except in the administration of the estates of deceased persons, and all contracts theretofore made for fees and allow ances to claimant's attorneys, but expressly provided that all treasury warrants in payment of the judgments of the court should be made payable and be delivered only to the claimant, or to his heirs, executors, or administrators, except so much thereof as the court, at the time of rendering the judgment, and as part thereof, should allow to be paid directly to the claimant's attorney, not exceeding in any case 20 per cent of the amount re-gress of 1891 expressly declared void “all con

covered.

83] *In view of previous experience, this last provision was a wise, reasonable, and just provision for the protection of suitors; and it was clearly within the constitutional power of Congress.

As was said by Chief Justice Taney, "It is an

the

But in the present case, as has been seen, original agreement was contrary to the express terms of the act of Congress of 1853. That agreement cannot, as it appears to us, be construed as a promise of the principal to pay to the attorney any sum whatever, except out of money recovered and received by the attor ney from the United States. The act of Con

tracts heretofore made for fees and allowances to claimants' attorneys.' This act was passed before the attorney had either recovered or received any money upon the principal's claim against the United States. The act did not recognize either the lawfulness or the amount of the claim, or make any appropriation for its

payment. But it provided for its ascertain- | to review a judgment convicting Charles Smith ment and adjudication by judicial proceedings, of the murder of John Welch. Reversed, and and for the allowance, by the judgment in case remanded with directions for a new trial. those proceedings, of a reasonable compensation to the attorney. The restriction of the compensation of attorneys to the amounts so allowed by the court was one of the terms and conditions upon which the United States consented to be sued.

In the suit brought by Ball on behalf of Halsell against the United States under the act of 1891, the court of claims rendered judgment in favor of the executrix of Halsell against the United States for $17,720, a smaller amount than had been recommended by the Depart ment of the Interior, and fixed the allowance to Ball at the sum of $1,500, between 8 and 9 per cent of the amount of the judgment. The United States have paid this sum to Ball, and the rest of the judgment to Halsell's executrix. For the reasons above stated, Ball cannot 85] maintain this action upon the contract between him and Halsell; and he does not sue, and could not recover, upon a quantum meruit. Marshall v. Baltimore & O. R. Co. 57 U. S. 16 How. 314, 337 [14: 953, 962]. Judgment affirmed.

CHARLES SMITH, Plff in Err.,

v.

UNITED STATES.

(See S. C. Reporter's ed. 85-90.) Evidence in criminal case-erroneous instruc

tion.

1. On a trial for murder, evidence that the deceased was a larger and more powerful man than the defendant, as well as evidence that the deceased bad the general reputation of being a quarrelsome and dangerous person, is competent, -especially if there is evidence tending to show that his character in this respect was known to the defendant.

On a trial for murder, where several witnesses who testified that the deceased had the reputation of being a quarrelsome and dangerous character had been arrested for various offenses, and one of them convicted, while none of them had kept a gambling place, an instruction to the jury to cast aside as worthless matter such testimony if it comes from "keepers of dives and gambling houses and gambling hells and violators of law and prison convicts," with reiterated statements to the effect that men of pure character only are competent to know what character is, is error:

and entitles defendant to a new trial, as the cred

fbility of witnesses is a matter for the jury, and the instruction withdrew this matter from their consideration.

[No. 608.]

Statement by Mr. Justice Gray:

This was an indictment in the circuit court of the United States for the western district of Arkansas for the murder, at the Cherokee Nation in the Indian country, on September 27, 1894, of John Welch, a negro and not an Indian, by shooting him with a pistol.

*At the trial the government introduced [86 evidence tending to show that Welch and the defendant, about noon, at a fair-ground in Muscogee, at a spot close by their respective tents, and near a merry-go-round, a dance hall, gambling places, refreshment booths, and other tents and buildings, and in the presence of a crowd of people, fell into dispute; that the defendant ran into his tent, and, finding one Scott Gentry inside, snatched Gentry's pistol from his belt, came out, and shot and killed Welch; and that Welch was unarmed at the time.

The defendant admitted the killing, and contended that he did it in self-defense; and, being called as a witness in his own behalf, testined that he knew Welch, "was very nearly raised up with him," and they had tussled together all the way up from boys;" that Welch was a bigger and much stronger man than himself; that he knew that Welch had a pistol the night before; and that, when he shot Welch, Welch was advancing, with his right hand at his hip pocket, towards the defendant, and threatening to kill him.

The defendant also called witnesses, who testified that the deceased had previously made threats against the defendant's life; and five other witnesses, living at Muscogee, who testified that they had known Welch for years, and that he had the general reputation of being a man of quarrelsome and dangerous character.

Each of these five witnesses was asked by the district attorney, on cross-examination, whether he had ever been arrested for any. thing. In answer to this question, one of them testified that he had been arrested, tried, and acquitted for murder, and had been arrested for gambling and discharged. A second witness testified that he had been arrested for "fighting and gambling" only. A third wit ness testified that he had once been arrested, three or four years before, and brought to Fort Smith, for selling whiskey; and, on reexamination, that the grand jury ignored the charge, and that he had never been convicted of anything. A fourth witness testified that he had been arrested for "fighting and whiskey," but for nothing else, and had twice "served a jail sentence for whiskey." The[87

Argued and Submitted November 19, 1895. De fifth witness testified that he had never been

cided March 2, 1896.

IN ERROR to the Circuit Court of the United States for the Western District of Arkansas NOTE.--A8 to questions of law and fact for court and jury, see note to King v. Delaware Ins. Co. 3: 155.

As to threats by the deceased in cases of homicide, when admissible in evidence,—see note to Wiggins v. Utah, 23: 941.

arrested for anything; and there was no other evidence of the arrest or conviction of any of

these witnesses, or that any of thling place. Y thing to do with keeping a gambling place.

structed them as to the evidence of the charThe court, in the charge to the jury, inacter of the deceased as follows: "Now, what is reputation? It is the reflection of character. Character is the thing itself. It is that which a man makes day after day, and

hour after hour, and year after year, by his bearing and conduct in the community where he lives. If that thing is reflected by the words spoken by men of credit, by men of standing, by men of pure character standing before you, that such reputation is so reflected as that you can believe it, of course it is entitled to consideration and to be taken in the case if it is applicable. But it is to come from men who are morally and mentally competent to know what it means. If a man is without character himself, if his action has been characterized by crime, if his conscience has been seared by criminal conduct, he is thus rendered incompetent to know what character is. He has none himself, and he is incompetent to determine when other men have one. And above all is it necessary, important, and essential to the interests of public justice, that justice should not be defeated by men of that character scraped from the four corners of the earth. You are to see to it that it comes from a pure source; and then, again, you are to see to it that it is the reflection, not by keepers of dives and gambling hells, and violators of law, and prison convicts, but it is the reflection of honest and conscientious men, of men who possess character themselves; men of integrity; men whose judgments make up in your com munity your character that you prize so highly, because it is the opinion of honest, intelligent, judicious, and just men and women in your community. That is the source that character is to come from, and the only source from which you can derive it in a reliable way. If it does not come from that source, but comes from the source I have designated, cast it 88 aside as so much worthless*matter invoked wrongfully in cases of this character." To this instruction the defendant at the time excepted; and, after being convicted and sentenced for murder, sued out this writ of error.

Messrs. Wm. M. Cravens and C. Frederick for plaintiff in error.

Mr. Edward B. Whitney, Assistant torney General, for defendant in error.

State v. Nett, 50 Wis. 524; State v. Turpin, 77
N. C. 473, 24 Am. Rep. 455; Whart. Hom. (2d
ed.) $ 606-623, and cases cited. In Wiggins
v. Utah, above referred to, evidence that "the
deceased's general character was bad, and that
he was a dangerous, violent, vindictive, and
brutal man" was admitted at the trial, and was
assumed to be competent, both in the opin
ion of this court delivered by *Mr. Justice[89
Miller, and in the dissenting opinion of Mr.
Justice Clifford. 93 U. S. 466, 470, 474 [93:
942-944].

The testimony introduced by the defendant
to the character of the deceased was therefore
competent and material.

All that was shown, by way of impeaching the credibility of any of the five witnesses who testified to this point, was that one of them had been arrested, tried, and acquitted for murder, and had been arrested for gambling, and discharged; another had been arrested for fighting and gambling; another arrested for fighting and selling whiskey; and another arrested, convicted, and imprisoned for selling whiskey. There was no evidence that any of the witnesses, except this one, had been con. victed of any offense whatever, or that any one of the five had anything to do with keeping a gambling place.

Yet the court, in instructing the jury as to the weight to be given to the evidence of the character of the deceased, told them that reputation was the reflection of character, and, in order to be entitled to consideration, must "come from a pure source," and be "the reflection of honest and conscientious men, of men who possess character themselves, men of integrity, men whose judgments make up in your com munity your character that you prize so highly, because it is the opinion of honest, intelligent, judicious, and just men and women in your community;" and that "if a man is without character himself, if his action has been charJ.acterized by crime, if his conscience has been

Mr. Justice Gray delivered the opinion of the court:

seared by criminal conduct, he is thus rendered At-incompetent to know what character is; he has none himself, and he is incompetent to determine when other men have one;" and charged the jury "to see to it that it is the reflection, not by keepers of dives and gambling bells, and violators of law, and prison convicts," and, if it comes from that source, to "cast it aside as so much worthless matter invoked wrongfully in cases of this character."

The main question in controversy at the trial was whether the killing of Welch by the defendant was in self defense. Upon that question any evidence which, according to the common experience of makind, tended to show that the defendant had reasonable cause to apprehend great bodily harm from the conduct of the deceased towards him just before the killing was admissible; and upon principle, and by the weight of authority, evidence that the deceased was a larger and more powerful man than the defendant, as well as evidence that the deceased had the general reputation of being a quarrelsome and dangerous person, was competent, especially if his character in this respect was known to the defendant, which there was evidence in this case tending to show. Wig. gins v. Utah, 93 U. S. 465 [23: 941]; Allison v. United States, 160 U.S 203, 215 [ante, £5, 400]; State v. Benham, 23 Iowa, 154, 92 Am. Dec. 416; Com. v. Barnacle, 134 Mass. 215, 45 Am. Rep. 819; Hurd v. People, 25 Mich. 405; State v. Bry ant, 55 Mo. 75; Marts v. State, 26 Ohio St. 162;

This heaping up of injurious epithets upon the witnesses, coupled with the injunction (which could have no application to anything before the court except their testimony) to "cast it aside as so much worthless matter invoked wrongfully." could not have been understood by the jury otherwise than as *a com [90 mand to disregard all the testimony introduced in behalf of the defendant, bearing upon the character of the deceased as a quarrelsome and dangerous man.

The character of a quarrelsome and dangerous man is not always so well known to peaceable and law-abiding citizens that their testimody upon the subject can be had. In this, as in other matters involved in the administration of the criminal law, it is often necessary to resort to those who are more familiar with the persons between whom, and the places in

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