with a condition as to delivery. It does not appear from the record nor from the correspondence that the plaintiff stood in any other relation to her than as a business man of affairs, willing to answer any questions or perform any service that a gentleman could ordinarily perform for an acquaintance, without such compensation as an ordinary business relation would permit. And while it is urged by appellant's counsel that owing to plaintiff's official relations with the company; his extensive knowledge of the affairs of the company; the increased value of its stock at the time of its promised delivery; his statements as to the loss of the Port Eads, the building of competing lines of railroad, and their consequent effect upon the value of the stock,-had a direct tendency to mislead Mrs. McKibben, and cause her to sell the stock below its value, yet, upon a careful review of the testimony, we are unable to find any statement or representation on the part of the plaintiff that has been shown to be untrue, or any act that has been shown to be fraudulent. It is not shown, nor can it be presumed from the testimony, that the plaintiff had any secret knowledge as to the value of the stock, actual or prospective, as would raise any presumption of fraud against him; such as would cast upon him the burden of showing a full disclosure of any knowledge he possessed concerning it. The price agreed to be paid is shown to have been the fair value of the stock at that time. As a business proposition, we know that it is seldom that any kind of stock has a fixed, certain, unchangeable value for any considerable length of time. They fluctuate in value as this stock did, and might be expected to fluctuate. The broker who assumes to know the most about them is frequently the first one to be deceived. Had this stock declined, instead of having appreciated, in value, after the sale, it is quite certain that, under the facts shown, Mrs. McKibben could have received from the plaintiff the price agreed upon, or damages consequent upon his failure to perform his contract. This rule is laid down in Cook on Stock & Stockholders, (sections 320, 351,)-that "a director of the corporation itself may buy and sell its stock like any other individual. The information which he has of the affairs of the corporation, whereby he is enabled to buy or sell at an advantage over the person with whom he deals, does not affect the validity of the transaction. He is entitled to the benefit of his facilities for information. There is no confidential relation between him and the stockholder, so far as a sale of stock between them is concerned; and as long as he remains silent, and does not actively mislead the person with whom he deals, the transaction cannot be set aside for fraud." Gillett v. Bowen, 23 Fed. Rep. 625; Mor. Corp. 565; Deaderick v. Wilson, 8 Baxt. 108; Commissioners v. Reynolds, 44 Ind. 509; Car

penter v. Danforth, 52 Barb. 581; 2 Pom. Eq. Jur. 902-904; Allen v. Gillette, 127 U. S. 589, 8 Sup. Ct. Rep. 1331. The testimony shows that there was a plain offer on the part of the plaintiff to buy the stock at $92,500, on the condition Mrs. McKibben would sell at that price, and that Mrs. McKibben accepted that offer, with the condition that she should have 40 days in which to deliver it. From the language used, she must have understood that the plaintiff was buying, and he must have understood that she was selling, the stock, at the price offered and accepted.

The condition inserted by her required a new acceptance from the plaintiff, and on the 1st day of March, 1890, the plaintiff did accept the conditions and offer as a whole. This last letter, of March 1st, in acceptance of her offer of February 25th, was mailed the same day it was written, and reached Salt Lake City, where Mrs. McKibben then was, by due course of mail, on March 4, 1890. Mrs. McKibben died March 5, 1890, having been unconscious for 24 hours, and never saw the letter. The appellant contends that, while Mrs. McKibben accepted plaintiff's offer of $92,500 for the stock, yet she added a condition to that acceptance which required a new acceptance from the plaintiff, and the contract would not be consummated until plaintiff had not only mailed his acceptance of it, but such acceptance must have been actually communicated to Mrs. McKibben,-in other words, that the assent of Mrs. McKibben, either express or implied, after the acceptance of the terms proposed by her, is essential to the consummation of the contract. In our view of the law, this cannot be sustained. An unqualified acceptance by the one party of the terms proposed by the other party, transmitted by the usual due course of mail, must be regarded as closing the bargain, from the time of the mailing or transmission of the acceptance by mail, and that it is wholly immaterial whether the party proposing ever saw such acceptance or not. We are but following the doctrine well established in this country, and as plainly laid down in Tayloe v. Insurance Co., 9 How. 390, when we say that an offer, under the circumstances shown, was a valid undertaking on the part of Mrs. McKibben that she would be bound according to the offer tendered, if an answer thereto was transmitted, in due course of mail, accepting the of fer; and, as held in the case of Tayloe v. Insurance Co., such offer cannot be withdrawn unless the withdrawal reaches the party to whom it is addressed before his letter of reply, announcing the acceptance, has been transmitted. In the same case the court say that, "on the acceptance of the terms proposed, transmitted by due course of mail to the company, the minds of both parties have met on the subject, in the mode contemplated at the time of entering upon the negotiation, and the contract

becomes complete. The party to whom the proposal is addressed has a right to regard it as intended as a continuing offer until it shall have reached him, and shall be in due time accepted or rejected. Such is the plain import of the offer. And, besides, upon any other view, the proposal amounts to nothing, as the acceptance would be but the adoption of the terms tendered, to be in turn proposed by the applicant to the company for their approval or rejection. The fallacy of the argument, in our judgment, consists in the assumption that the contract cannot be consummated without a knowledge on the part of the company that the offer has been accepted. This is the point of the objection. But a little reflection will show that in all cases of contracts entered into between parties at a distance, by correspondence, it is impossible that both should have a knowledge of it the moment it becomes complete. This can only exist where both parties are present. It is obviously impossible, therefore, under the circumstances stated, ever to perfect a contract by correspondence, if a knowledge of both parties, at the moment they become bound, is an essential element in making out the obligation. And as it must take effect, if effect is given at all to an endeavor to enter into a contract by correspondence, in the absence of the knowledge of one of the parties at the time of its consummation, it seems to us more consistent with the acts and declarations of the parties to consider it complete on the transmission of the acceptance of the offer in the way they themselves contemplated, instead of postponing its completion till notice of such acceptance had been received and assented to by the company." The unqualified acceptance of one, of the terms proposed by the other, transmitted by due course of mail, is regarded as closing the bargain, from the time of the transmission of the acceptance. This is the American doctrine. 3 Amer. & Eng. Enc. Law, p. 856; 1 Pars. Cont. p. 28; Eliason v. Henshaw, 4 Wheat. 225; Mactier's Adm'rs v. Frith, 6 Wend. 103; Ferrier v. Storer, 63 Iowa, 484, 19 N. W. Rep. 288; Hunt v. Higman, 70 Iowa, 406, 30 N. W. Rep. 769; Linn v. McLean, 80 Ala. 360.

It is contended that the court erred in failing to find facts on the question of fraud set up in the answer. The court found, separately and specifically, that the contract set up in the complaint was sustained by the evidence. This finding necessarily negatives a fraud, as alleged, and is sufficient to sustain the judgment. Kisling v. Shaw, 33 Cal. 425; Malone v. County of Del Norte, 77 Cal. 217, 19 Pac. Rep. 422; Diefendorff v. Hopkins, 95 Cal. 347, 28 Pac. Rep. 265, and 30 Pac. Rep. 549; Brison v. Brison, 90 Cal. 323, 27 Pac. ep. 186; Maxfield V. West, 6 Utah, 327, 379, 23 Pac. Rep. 754, and 24 Pac. Rep. 98.

Upon the whole record we find no error.

The judgment of the trial court is affirmed, with costs.

BARTCH, J., concurs.

PEOPLE v. HITE.

(Supreme Court of Utah. April 15, 1893.) MURDER-EVIDENCE--WITNESS-CROSS-EXAMINATION-IMPEACHMENT-INSTRUCTIONS.

1. On the day preceding the homicide, defendant made threats against deceased, who armed himself on the day it occurred, and went home. Defendant procured a pistol, and, with a friend, went over to where deceased was sitting in front of his house. Evidence for the prosecution showed that deceased presented a gun at defendant, but, on defendant's request to talk the matter over, put it down, still holding it by the muzzle; that defendant then said any man who would carry a gun for another was a "damned cowardly son of a bitch," and that deceased said any man who would carry a pistol for another was the same thing; that defendant then said, "Take that back," and shot deceased, from which wounds he died; that deceased attempted to shoot defendant, but failed to hit him; that immediately thereafter defendant shot another man standing by, with whom he was incensed. There was also evidence that deceased fired the first shot. Held to justify a verdict of murder in the second degree.

2. Defendant having testified in his own behalf, it was competent to inquire of him what his business and antecedents were for 20 years past, and to interrogate him as to past transactions to test his recollection, and to bring to light conduct that would affect his credibility.

3. Where a witness for the defense testified that defendant was a peaceable, law-abiding man, it was competent to interrogate such witness as to whether he (witness) had ever been indicted, in order to test his credibility.

4. A charge that if the circumstances were such as to induce defendant to believe that he had to kill deceased to save his own life, or to prevent great bodily injury, and that if he acted on such belief he was justifiable, unless he brought on the difficulty which resulted in the killing, and did not in good faith decline any further difficulty before firing the fatal shot, is applicable to the facts, and is not open to the objection that the jury might have understood the court to mean that defendant could not justify the killing if he called on deceased to settle their differences amicably.

5. A charge that if defendant came to deceased's room to quarrel with him, and brought on the situation which seemed to him dangerous, he would not be justified in killing deceased, and that it would be his duty to retreat out of the way before doing so, as modified by the further charge that if defendant went there wrongfully, whether to kill or not, but to quarrel, and by his own acts put himself in a dangerous position, he should have retreated if he could with safety, but was not bound to run away and take a shot in the back, is favorable to defendant, and applicable to the facts.

6. Defendant requested an instruction that whatever may have been claimed by counsel on either side during their arguments should not influence the jury except so far as the testimony, when considered altogether, may have shown the statement to have been true; that the jury should not be influenced by anything but testimony, with whatever light may have been thrown thereon by arguments of counsel, and the law as given by the court. Held that, though such instruction might have been susceptible of a construction that would make it substantially correct, the jurors might have at

tached to it a meaning that would have limited the influence of legitimate statements and argument of counsel, and that it was properly refused.

Appeal from district court, Utah county; John W. Blackburn, Justice.

Cass Hite was convicted of murder in the second degree, and from a judgment entered on the verdict, and an order denying a new trial, he appeals. Affirmed.

Powers & Hiles, B. F. Montgomery, and A. G. Sutherland, for appellant. The United States Attorney, for the People.

ZANE, C. J. The defendant was tried on an indictment charging him with the crime of murder in the first degree. The jury found him guilty of murder in the second degree. The court overruled his motion for a new trial, entered judgment on the verdict, and sentenced him to imprisonment in the penitentiary for the term of 12 years. From the order overruling his motion, and from the judgment on the verdict, the defendant appealed to this court. His counsel make numerous objections to the rulings of the court, upon which they rely for a reversal of the judgment. They claim that the evidence did not authorize the verdict, and that the court erred, for that reason, in overruling the motion for a new trial.

It appears from the evidence in the record that the defendant and deceased lived at Green River, Emery county, Utah; that the defendant, on the 8th day of September, 1891, returned to that place from the city of Denver, where he had heard something that incensed him against Adolph Kohler, the deceased; that the latter learned, on the morning of the next day, that the defendant had made threats against him; that he borrowed a rifle, and then went to the Gammage cabin, where he roomed, and a little before noon went a short distance away, to Mrs. Johnson's, to dinner, taking his rifle with him, and after dinner came back to his room, went in, and put his rifle up. It also appears that the defendant heard that deceased had the rifle, and there is evidence that he had heard threats made by deceased against him, and that defendant said that he intended to "round up Kohler and another man named Drake that day." That he went to his cabin, which was about 90 yards from the Gammage cabin. That, armed with a revolver, called a "six-shooter," in company with another man, named Shafer, also armed with a similar weapon, he went to the Gammage cabin at about 1 o'clock of the day. That Kohler was there, sitting under a bowery in front of the house, and, as soon as he saw Hite and Shafer coming, went into the house, and got the rifle, and stood in the door of his room, which was in the front of the house. As Hite came up, Mrs. Gammage, wife of the man who owned the place, came out of the door, past Kohler, went up to Hite, laid her hand on his arm, and said to

him to go away; that she did not want him to come there making trouble. There is also evidence that Hite walked past her, came under the bowery, spoke to the people there, and then said, "Kohler, I hear you are carrying a Winchester around town for me." Kohler replied, "I haven't said, Hite, I was carrying a Winchester for anybody." Hite said, "Put down your gun; I want to talk with you." Kohler, who was holding his gun presented towards Hite, then said, "There are no second or third parties in this, are there?" and, Hite replying "No," Kohler put his gun down, holding to the muzzle, or, as some of the witnesses said, the butt, resting it on the doorsill, and Hite sat down in a chair. That some words were said, and Hite exclaimed, "Any man who will carry a Winchester around town for another man is a damned cowardly son of a bitch." Kohler replied, standing with his gun down, “I think any man who will carry a six-shooter around town is the same thing." Hite, exclaiming, "Take it back," jumped out of his chair, drawing his six-shooter quickly, and shot twice in quick succession at Kohler, still standing with his gun resting on the doorsill. That Kohler staggered back, reeling, then stepped forward a step or two, raised his gun halfway to his shoulder, and Hite, who had jumped to the corner of the house, fired again, and, just after he fired, Kohler's gun went off for the first time, but the bullet went towards the earth, and the gun dropped from Kohler's hand. That he turned around, staggered into the house, and died in a few moments. There is also evidence that deceased was shot in three different places,-in the left side, through the left wrist, and through the left arm,—and that defendant fired at least two shots at him after the first one; that defendant also shot Drake, who was standing several feet away from the deceased, (against whom he was also incensed,) in his left breast, and through his left arm, from the effects of which he fell to the ground, very seriously, though not fatally, wounded. There is also evidence tending to show that defendant called on the deceased at the time of the homicide to talk over their differences, and to come to an understanding, and that deceased fired the first shot; the testimony is conflicting. The testimony to the effect that the defendant commenced the quarrel, and actually brought on the fatal conflict by firing the first shot, is much more reasonable, in the light of the circumstances immediately preceding and attending the shooting. The facts that the defendant had made threats that day against deceased preceding the homicide; that he was angry, and went over to where deceased was peaceably sitting; that he and his companion were armed; the manner in which defendant conducted himself, and the precision with which he used his weapon; the killing of one of the men that he shot at, and wounding the other; the

rapidity of the shots; his coolness and expertness, all indicate premeditation, not mere self-defense or mere excitement. Defendant's entire conduct immediately preceding and attending the conflict indicate expectation, anticipation, determination, and malice, while the conduct of the deceased indicated that he was afraid of the loss of his life or injury from the defendant, and that he wished to protect himself, but that he lacked the will and the expertness in the use of his weapon to do so. In view of the evidence, we cannot say that it does not support and justify the verdict.

Counsel for the defendant also insist that the court committed errors in overruling objections by them to questions propounded to the defendant on his cross-examination. They made several objections, but took very few exceptions. They insist that the court permitted the cross-examination to take too wide a range. The defendant testified in his own behalf, and under the statutes of Utah his cross-examination was subject to the rules limiting the cross-examination of other witnesses. His counsel, on the direct examination, asked him, "What has been your business for the last twenty years?" and he answered that he had been engaged in prospecting and mining in Montana, Idaho, New Mexico, Arizona, Sonora, Chihuahua, Colorado, and Utah, and that he had been so engaged in Utah 12 years. He mentioned particular places where he had been so occupied, and his trip to Denver, and finally came to Green River and the fatal conflict. In his cross-examination the prosecuting attorney went still further back, and his inquiry descended still further into particulars. He interrogated the defendant as to transactions evidently for the purpose of testing his recollection, and of bringing to light conduct that would affect his credibility. It is the duty of the juror to judge of the credibility of the witness, and to weigh his testimony in the light of his opportunities to know, to understand, and remember, and in view of his motives and his moral worth, as evidenced by his conduct, and in view of his character established by his life, as well as in the light of experience and reason. To enable the juror to judge of the credibility of the witness, rigid cross-examinations are sometimes necessary, and much latitude of inquiry should be permitted. The investigation of truth is sometimes attended with the humility and disgrace of the witness, and appears to be remorseless. In the case of Territory v. O'Hare, (N. D.) 44 N. W. Rep. 1003, the court said: "Defendant voluntarily took the stand as a witness in his own behalf, and testified at large upon the issues. Upon cross-examination he was required to testify as to his antecedents, and, in doing so, stated that he had passed under the name of Sullivan at Fargo, and had been in jail at Fargo and at Stillwater, Minn. This testimony was objected to by defendant's counsel as irrele

vant, and not proper cross-examination. The objection was overruled, and the ruling is assigned as error. It is well settled that witnesses who are not parties may, for the purpose of impeachment, and within the sound discretion of the trial court, be required to testify as to facts tending to degrade them, which are collateral to the issue. We hold that the right of cross-examination as to outside matters of fact, which affect the general character of the witness, and tend to degrade him and affect his credibility, is, within the limits of a sound judicial discretion, a salutary rule." Burdette v. Com., (Ky.) 18 S. W. Rep. 1011; State v. Merriman, (S. C.) 13 S. E. Rep. 328; People v. Robinson, (Mich.) 49 N. W. Rep. 260. J. H. Lee was called as a witness by the defendant, and on his direct examination he was asked: "Do you know what his general reputation has been and is among the people with whom he has done business and been acquainted in the neighborhood where he has lived, as to being a peaceable, quiet, lawabiding citizen? Answer. Yes; good so far as I know. Question. Did you ever hear anything bad about him? A. No. Q. Until this matter arose? A. Don't know as I have." The prosecuting attorney on cross-examination asked, "Have you ever heard of Hite getting any of his engraving work done at Bright's. The engravings I mean are engraving upon a die for money. A. I think Mr. Nichols some one-told me there was something of that kind. I think it was Mr. Nichols, but I never saw that." To this question defendant's counsel made an objection, which was overruled by the court, and exception taken. In view of the fact that defendant's counsel had asked the witness on the direct examination what defendant's general repu tation was as to being a law-abiding citizen, and whether he had ever heard anything bad about him, we think the questions asked on cross-examination, and objected to, were proper. Bert Seabold having been interrogated, as a witness for the defense, as to the general reputation of defendant as a peaceable, quiet, and law-abiding man, and having answered that it was good, the prosecuting attorney asked the witness, on cross-examination, "You have been under indictment in this court yourself, haven't you?" To this question the defense objected, and, it being overruled by the court, exception was taken, and the witness answered that he had. If a witness has been charged with a crime, or arrested or indicted for it, he may be asked about it on cross-examination, and, when such facts are irrelevant to the matter in issue, the party putting the question is bound by the answers of the witnesses. He cannot call other witnesses, and prove that the answers are false. People v. Clark, (N. Y. App.) 8 N. E. Rep. 38; Wroe v. State, 20 Ohio, 460; People v. Myer, (Cal.) 17 Pac. Rep. 431.

The defendant also claims that the court

did not state the law of self-defense correctly to the jury. In its charge to the jury the court said that the defense was justifiable homicide, and proceeded to define it as applicable to the evidence. In doing so he read more of the statute than was necessary in view of the evidence, and omitted to read all that was applicable, but he stated in his own language to the jury that which he omitted to read. The court said, in substance, that if the circumstances were such, or so appeared to be, as to induce in the defendant, at the time of the homicide, a reasonable belief that it was necessary for him to kill Adolph Kohler to save his own life or to prevent great bodily injury, and that in good faith he acted upon such belief, and killed Kohler, he was justified, unless the jury further believed from the evidence, beyond a reasonable doubt, that the defendant wrongfully brought on the quarrel or difficulty which resulted in such killing, and did not in good faith decline any further difficulty with the deceased before firing the fatal shot. Defendant's counsel insist that the jury may have understood the court to say that the defendant could not justify the killing of Kohler if he called on him for the purpose of explanation or of reaching an amicable and peaceable settlement of their differences, if he went to the place of the homicide with justifiable motives, and for lawful purposes. We do not think that the language used in the charge of the court was subject to such an interpretation or to such a construction. "The court charged the jury that if the deceased was at his own room, and the defendant came over there to the deceased for the purpose of a quarrel, and then by his own act brought on the situation that seemed to him to be dangerous, he would not be justified in killing the deceased. It would be necessary for him to retreat out of the way before he would be justified in doing so." And, when the attention of the court was called to this portion of the charge by counsel for the defendant, it further said to the jury: "I will modify that instruction in this way: If it appears from the evidence, beyond a reasonable doubt, that the defendant went to the house there wrongfully, with a wrong intention, whether to kill or not, but went there for the purpose of a quarrel, and by his own acts put himself in that position,-in a dangerous position,-it was his duty to retreat from that, and decline any controversy, if he could with safety. He was not bound to run away, and take a shot in the back." This statement of the law of justifiable homicide applicable to the facts was favorable to the defendant. If the defendant sought the deceased with the intention of having a difficulty with him, the law required him to decline in good faith any further difficulty, before killing him; and if he did so wrongfully bring on the difficulty, and did not decline any further difficulty before the shooting, he could not justify the homiv.33r.no.5-17

cide on the ground of self-defense. People v. Lamb, 17 Cal. 323; Adams v. People, 47 Ill. 376; Com. v. Selfridge, 1 Hor. & T. Cas. 1; People v. Stonecifer, 6 Cal. 405; People v. Travis, 56 Cal. 251; State v. Neeley, 20 Iowa, 108; Rippy v. State, 2 Head, 217.

The

Counsel for defendant insist that too much liberty of statement and expression was indulged in by the prosecuting attorney, and permitted by the court, on the trial of the cause, and it appears that some personalities towards each other were indulged in by counsel on both sides. In view of this, the counsel for the defendant assigns as error the refusal of the court to give the following request: "The jury are further instructed that whatever may have been said or claimed by counsel on either side during the introduction of the testimony and the examination of the witnesses, or in their arguments to the court, should have no influence whatever with the jury in determining the facts in the case, except so far as the testimony, when considered altogether, may show the statement to have been true. jury should not be influenced by anything but the testimony in the cause, with whatever light may have been reflected thereon by the arguments and analysis of counsel, and the law as it has been given you in the charge by the court, and from these alone endeavor to arrive at the very truth, regardless of results." Jurors should take into consideration the questions stated by counsel to the witnesses, with their answers. Counsel may restate the testimony, and refresh the memory of the jurors. They may state it in connection with other evidence, and state its effect as they understand it, and draw inferences and state their conclusions. Facts to which no witness has testified may be inferred from those testified to, and their existence may be claimed by counsel. Coincidences, corroborations, disagreements, or absurdities which arise when the evidence is considered alone, or when considered with respect to matters of common knowledge, may be pointed out and stated by counsel. They may refer to the laws of cause and effect, to the laws of nature, to the relations of things to human nature, as manifested in conduct under given conditions, and from such laws and facts, and from the evidence, they may infer motives or designs, good or bad. There is also a great fund of knowledge, common to all mankind, which counsel may resort to in the argument to a jury, and from inferences drawn from that knowledge, in connection with the evidence and facts of the cause, and from illustrations which they may properly make, they may influence the minds of jurors. Counsel may

state presumptions of fact, presumptions of law, and legal principles applicable to the case, to be controlled, however, by the charge of the court. Of course, counsel have no right to state any expression, act, intent, or