15 N. W. Rep. 465. But upon close inspection it will be ascertained that the real difference depends on the peculiar facts of each case and the particular language of the statutory provisions of the respective states, more than upon any controversy as to the general principles. of the law.

Under the Code of New York, as it existed at the time of the decision in Tuttle v. Smith, 14 How. Pr. 395, suits were "commenced by the service of a summons," (How. N. Y. Code 1859, § 127;) and it was held that the form of the summons, as to the notice required by section 129 of the Code, (similar to section 26 of our practice act,) must come within the subdivision in which the cause of action to be stated in the complaint that should thereafter be filed, belonged. The complaint was set aside on the ground of variance between it and the summons, with leave to the plaintiffs, if they wished to have their complaint stand, to amend their summons. It was urged that the defect in the summons was waived by the appearance of the defendant. The answer to this, as given by the court, was that the defendant treated the summons as regular, and only objected that the course pursued by the plaintiff "was a departure from his summons or process. It was admitted that if the objection "was to the summons, or the motion necessarily reached to setting that aside, the answer that the defects were waived by a general appearance would be complete."

The decision in Tuttle v. Smith was followed as having settled the question of practice in Cobb v. Dunkin, 19 How. Pr. 166; but in the subsequent case of Brown v. Eaton, 37 How. Pr. 325, the court said. it ought not to be followed in cases where the summons and complaint were served together, nor in any case when it clearly appeared that the defendant could not have been prejudiced by the mistake in the form of the summons. Under the practice of this state, actions are "commenced by the filing of a complaint with the clerk of the court, and the issuance of a summons thereon." Civil Pr. Act, § 22; 1 Comp. Laws, 1085.

The summons in this case, when served upon the defendant Schultes, was attached to a certified copy of the complaint. The other defendant was served with the summons only. But the summons under our statute is required to state, among other things, "the cause and general nature of the action." Civil Pr. Act, § 24; 1 Comp. Laws, 1087. The summons was complete in all respects as required by section 24, and was defective only in the form of notice required by section 26. The object of a summons is to put the defendant upon notice of the demand against him, and to bring him into court at the time therein specified. If the defendants relied upon the irregularity in the notice, they ought not to have made any further appearance. When they accepted the time given to answer, and then filed a demurrer, which raised an issue in the case, it was a general appearance in the action, notwithstanding the words of reservation contained

in the demurrer. 1 Comp. Laws, 1560. After this appearance the court had jurisdiction to proceed and grant any relief to which the plaintiff was entitled, regardless of the mistake in the form of the notice inserted in the summons. The summons had served its purpose and spent its force when the demurrer was filed, and hence the error in the notice of the summons, and the ruling of the court thereon, became immaterial and harmless; and, as it could not have prejudiced the defendants, it must be disregarded. Lake v. Lake, 16 Nev. 366. In Dyas v. Keaton, where, substantially, the same questions were involved, the court said:

"The defendant will be presumed to be injured by the failure of the plaintiff to comply with the provision of the statute in relation to notice, when nothing further appears from the record to have been done by the defendant. The mistake in the notice is a mere technical error, which, however, is, by the weight of authority, deemed such an irregularity or informality as that a judgment, entered in pursuance thereof, will be set aside. The plaintiff must comply with an express requirement of the statute, whether necessary or not, or suffer the consequences of his failure by his summons being declared defective, and a judgment by default thereon annulled. What should be our action, however, when the purpose of the summons has been secured by the action of the defendant himself, and no injury has resulted from such defective process? In this case the appellant did not choose to stand upon his motion, but, without compulsion, (except the fear of a default and judgment thereon, which it has been the universal practice of the courts in similar cases, so far as we have examined the reports, to set aside,) appeared and demurred to the complaint, which, being overruled, he answered, and thereupon asked and obtained a continuance until the next term. * * The defect in the notice was not such an irregularity or informality as would have caused a dismissal of the suit. The only result obtained, had the appellant's motion been sustained, would have been to delay the cause until a proper summons had been served upon him. By procuring the continuance at the first term, the appellant obtained all the advantages which he would have secured had his motion to quash the summons been sustained." 3 Mont. 501.

*

The general tendency of the decisions is to look with disfavor upon mere technical objections, which relate solely to the form of the process or proceedings, especially where it is apparent that the error is one which has caused no substantial injury to the complaining party. In pursuance with this general principle, it was enacted in our statute that "the court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or default." 1 Comp. Laws, 1134. What was the object of the legislature in incorporating this provision in the Code? There can be no difference of opinion upon this question. The principal object was, as stated by the court in Dyas v. Keaton, supra,

"To avoid the technicalities of the common-law procedure, by which it was claimed that justice was often defeated. This was certainly a most laudable as well as desirable object. The practical spirit of the age, which will not brook trifling in business affairs, and whose principal aim is utility, demands

that courts should endeavor to secure the attainment of this avowed design in the adoption of the Code. It is the general rule, now prevailing in the courts, that wherever and whenever substantial justice is secured, a mere technical error, which is harmless in its character, and which has worked no injury, will not be permitted to defeat or annul the final conclusion or consummation of judicial proceedings."

The action of the court in overruling defendants' motions did not in any manner affect the case after the filing of the demurrer. All subsequent proceedings were based upon the complaint alone. Had the motion to set aside the summons been granted, the only effect would have been to deprive the plaintiff of his right to collect costs for the service of the summons, and to delay proceedings in the case until another summons could be served. These costs, if included in the cost bill, could be deducted upon a proper motion being made. The delay that would have been gained by having the motion sustained was obtained by the time subsequently given to file the demurrer and answer. Having generally appeared in the action, the error in the ruling of the court denying the motions became harmless, and worked no substantial injury to the defendants. And, as the defendants did not move the court to have the default or judgment set aside for the purpose of allowing them to present their answer and try the cause upon its merits, it is plain to be seen that they have not placed themselves in a position to complain of the judgment. The judgment of the district court is affirmed.

(4 Utah, 49)

SUPREME COURT OF UTAH.

PEOPLE, etc., v. CALLAGHAN, impleaded, etc.

Filed March 2, 1885.

1. TRIAL FOR Murder-DeGREE OF THE CRIME-QUESTION FOR JURY.

It is the province of the jury, under proper instructions from the court, to determine the degrees of the homicide, and the court should not usurp this function.

2. SAME-COURT SHOULD INFORM JURY AS TO GRADES OF CRIME.

The court should inform the jury what circumstances will in law reduce a homicide from murder to manslaughter, or render it excusable or justifiable, and leave them to apply the law to the facts in the proof.

3. SAME-EVIDENCE-BURDEN OF PROOF AFTER PROOF OF KILLING.

The burden of what should be proved beyond a reasonable doubt never shifts to the defendant, but the prosecution having proven beyond a reasonable doubt the fact of the killing, unless the circumstances of mitigation, or that justify or excuse it, arise out of the evidence against him, the prisoner must take upon himself the burden of satisfying the jury by a preponderance of evidence that such circumstances existed at the time of the killing, to the extent of raising in their minds a reasonable doubt of his guilt.

4. SAME-PREMEDITATION-INSTANTANEOUS FORMING OF INTENT.

As to premeditation it is not error to instruct the jury that "there may be no appreciable space of time between the intent to kill and the act of killing. They may be instantaneous as the successive thoughts of the mind."

5. SAME-INSTRUCTION-ERROR ON THE SIDE OF MERCY.

By instructing a jury that premeditated intent to kill is an essential ingredient of murder in the second degree, the court errs on the side of mercy, and the prisoner has from such an instruction no appeal.

6. SAME

TION.

MALICE-MEANING-INTENT OF THE LEGISLATURE OF UTAH-PRESUMP

The legislature, in using the word “mance" in defining murder in the second degree to be "the unlawful killing of a human being without malice," must be presumed to have attached to the word the same meaning which it had in the foregoing section of the act, where murder in the first degree is defined. 7. SAME-INSTRUCTION-GENERAL BEARING OF CHARGE-SPECIFIC REQUESTS TO

INSTRUCT.

There is no error in refusing to charge the jury according to requests bearing upon minute points in the proof, provided the instruction in substance covers them all.

8. SAME-EVIDENCE-DECLARATION OF VICTIM IMMEDIATELY AFTER ASSAULT

RES GESTEÆ.

The declaration of the victim immediately after the shooting, as to who shot him, is, in the discretion of the court, admissible in evidence as part of the res gesta.

9. SAME-EVIDENCE-DECLARATION OF PRISONER-RES GESTÆ.

The statements of the prisoner, made subsequently to the act, after walking three or four miles, are not admissible as part of the res gesta. 10. SAME DYING DECLARATION-LEADING QUESTIONS-LACK Of Signature.

A dying declaration is admissible though not signed by the declarant, and although it was given, not in voluntary expressions, but by assenting words to leading questions, provided the declarant was on the point of death and knew that he was, and was too weak for the mechanical exertion of signing his name. 11. SAME PRISONER AS WITNESS-REMARKS IN CHARge Calling ATTENTION TO. It is proper to directly challenge the attention of the jury to the prisoner as a witness in his own behalf, if the court therein leaves the credibility of the prisoner as a witness and the weight of his evidence to the exclusive judgment of the jury.

v.6p,no.2-4

12. SAME-ACCESSORIES-STATUTE LAW OF UTAH.

The effect of section 168 of the criminal practice act is to abrogate in cases of felony the distinction between a principal and accessory. The act of one becomes the act of all.

13. PRACTICE SUPREME COURT-RECORD-MATTERS NOT CONTAINED IN.

Matters not brought into the record by bill of exception are not properly before the court, and will not be considered on appeal.

14. SAME SEPARATION OF JURY-STATUTE LAW OF UTAH.

Section 278 of the criminal practice act leaves it discretionary with the court to allow the jury to separate, or to keep them in charge of an officer during the trial on an indictment.

Appeal from the Second district court.

Arthur Brown, for appellant.

Zera Snow and W. H. Dickson, for the People.

EMERSON, J. The appellant, Callaghan, was jointly indicted with Fennel and Fitzgerald, charging them with murder in the first degree in the killing of one Daniel Mahony, at Frisco, in Beaver county. All three pleaded not guilty, and upon the case being called for trial the defendant Fennell elected to be tried separately, and the trial proceeded as to the other two. When the prosecution rested their case at the close of their evidence in chief, the counsel for the defendant Fitzgerald moved for his discharge, on the ground "that there was no evidence implicating him with any criminal act in the case." After argument the motion was granted, and Fitzgerald, the discharged defendant, was the first witness sworn on the part of the defense. Callaghan was convicted of murder in the second degree, and was sentenced to imprisonment in the penitentiary for a period of 14 years, and appeals from the judgment, and from an order denying his motion for a new trial. The record presents several exceptions taken to the rulings of the court during the progress of the trial, together with a great number of exceptions relating to the instructions given and refused, and which will be noticed in the order in which they were presented to this court.

The first point urged upon our attention by the appellant is that the court erred in refusing to instruct the jury that it was a case of manslaughter only. It is the province of the jury, under proper instructions from the court, to determine the degree of the homicide, and the court should not usurp this function. The court should, as it did in this case, inform the jury that circumstances will in law reduce a homicide from murder to manslaughter, or render it excusable or justifiable, and leave them to apply the law to the facts in proof. A case might be imagined where the testimony was so clear, positive, and uncontradicted that the court would be authorized to instruct the jury that the uncontested facts did not bring the case within any of the higher degrees of homicide; but whether the defendant is guilty of some lower offense, or not guilty at all, must still be left to the jury upon the facts as they shall find them. This certainly is not a case like the one last above referred to. It appears from the record of the testimony sent up that the deceased was a