District of Tennessee, and had given a bond, with the usual condition in such case, with one of the defendants as surety thereto, to make his personal appearance before said court in Knoxville, Tenn., at the time mentioned therein. He failed to appear, and thereupon it was considered by the court that said deceased and his sureties forfeit and pay to the United States the sum of $1,000, according to the tenor of their bond, unless they appear and show cause to the contrary; and it was ordered that a scire facias issue. There was much evidence upon the trial in the court below, but it is not neces sary to the understanding of the opinion of this court to report it.

The prisoners asked the court to charge the jury as follows: "(1) That if Lingerfelt, while acting under the belief that he had the right to arrest the deceased, went to the field of the deceased, and notified him that he had come for the purpose of arresting him, and the deceased made a violent attack on him with a hoe, which was a deadly weapon, and the assault was so violent that prisoner believed that he was in imminent danger of losing his life or suffering great bodily harm, the right of self-preservation asserted itself, and he had the right to shoot the deceased. (2) If he went to the deceased, and told him he had come to arrest him, as the agent of bis bondsmen, the deceased had no right to slay the defendant, no demonstration to coerce the deceased having been made by the defendant; and if the jury should find that deceased made a deadly assault with a hoe, the defendant had a right to shoot him to save his own life or prevent great bodily harm. (3) That Swanson was one of the bail of the deceased, and had a right to pursue bim into this State and capture him, and that that right continued until final judgment was rendered against him, and that he and his co-surety had the right to appoint Lingerfelt as their agent to capture or aid in capturing the deceased. (4) That defendants had the right to use so much force as was necessary to capture deceased, and, if the jury find that Lingerfeit used no more force than was necessary to repel the assault made upon him by the deceased with the hoe, the defendants would not be guilty. (5) That Swanson. not being present, was not guilty. (6) That if the jury find that defendants attempted to arrest deceased under a belief that they had au thority to do so as bail, and in making the arrest the deceased attempted to kill Lingerfelt, and Lingerfelt, to save his own life, or prevent great bodily harm to himself, shot and killed the deceased, there was no malice, and they should find the defendants not guilty. (7) That Lingerfelt had a right to make the arrest, and was clothed with the same power for doing so as an officer. That he had a right to arrest him, peaceably if he could, and forcibly if he must; and if, in making the arrest, he used no more force than was necessary to do so, he was not guilty." His bonor refused to give the said instructions to the jury, and the prisoners excepted. His honor then charged the jury as follows: “(1) That there was no evidence in the case to show that the prisoners had authority or the right to arrest the deceased. (2) That if Lingerfelt undertook to arrest the deceased, the deceased had the right

to resist to the extent necessary to protect himself from such arrest: and if the deceased resisted, using no more force than was necessary under the circumstances, and for such resistance was shot and killed by Lingerfelt, Lingerfelt was guilty of murder; but if deceased used more force than was necessary under the circumstances, and said prisoner gave back, and was followed by deceased, and had reason to believe and did believe that deceased was about to kill him or do him great bodily harm, and shot and killed the deceased to protect himself, and not because he refused to submit to arrest, the prisoner was guilty of manslaughter, the jury being the judges of the reasonableness of the apprehension, and not the prisoner. (3) That if Lingerfelt undertook or approached deceased to arrest him, and deceased, to avoid arrest, fled, and the said prisoner, under these circumstances, shot and killed deceased, he was guilty of murder. (4) That if the prisoners combined to arrest the deceased, and, in pursuance of a common plan to arrest him, be was killed by Lingerfelt, and the prisoner Swanson was present aiding and abetting Lingerfelt to execute their common purpose, Swanson was liable in the same manner and to the same extent as Lingerfelt. (5) That if Lingerfelt did not undertake to arrest the de ceased, and did nothing more than to go into the field to him and tell him that by authority of Swanson and the other surety who were on his bond for his appearance at Knoxville, Tennessee, he (Lingerfelt) had a right to arrest him; that they had given him authority to arrest him, and thereupon the deceased assaulted him with a hoe, and prisoner had reason to believe, and did believe, that the deceased was about to kill him or do him great bodily harm, and to protect himself he killed the deceased, he was not guilty, and Swanson would not be guilty of any offense." The prisoners excepted. There was a verdict of guilty as to both defendants, and they appealed from the judgment pronounced.

The prisoners' counsel moved fora new trial in the court below upon the following grounds: "(1) For the reason that the court misdirected the jury in charging them that the record of the United States court of Tennessee gave the prisoners no authority whatever to go to the deceased and attempt to arrest him; that it was no more authority than if there had not been a word or figure written upon it. (2) The court erred in charging the jury that, in any view of the case, if Lingerfelt was guilty, Swanson was also guilty; there being no evidence that Swanson was present, or in such position as to give aid and assistance to Lingerfelt at the time of the killing of the deceased. (3) That the court erred in charging the jury that the purpose of the prisoners to arrest the deceased was unlawful, there being evidence tending to show that their purpose was lawful, and that they had a right to make the arrest. (4) That the court erred in not giving the special instructions asked for by the prisoners." The motion for new trial was overruled. The court arrayed the evidence applicable to the several instructions upon the law given to the jury, directing their attention to all the evidence in behalf of the prisoners as well as to that in behalf of the State.

Messrs. W. W. Jones and Ben Posey, for appellants:

The Statutes of North Carolina and Tennessee authorized the arrest of the principal at any time before final judgment against the sureties.

See N. C. Code Civ. Proc. pars. 301, 1230; Tenn. Code, 1884, pars. 6010-6014.

In a criminal case the forfeiture of a recognizance does not discharge the defendant nor relieve him from punishment, there being a difference in that particular from a forfeiture in a civil case.

Ex parte Milburn, 34 U. S. 9 Pet. 704, 9 L. ed. 280; Reese v. United States, 76 U. S. 9 Wall. 13, 19 L. ed. 541; Taylor v. Taintor, 83 U. S. 16 Wall. 366, 21 L. ed. 287.

The sureties had a right to pursue and rearrest the principal in any part of the United States, and they had a right to deputize the defendant, Lingerfelt, as their agent to aid them in making the arrest.

See Nicolls v. Ingersoll, 7 Johns. 152; Taylor v. Taintor, 83 U. S. 16 Wall. 371, 21 L. ed. 290; Wharton, Crim. Proc. par. 62; State v. Mahon, 3 Harr. (Del.) 568.

This right is in the nature of subrogation, and the government will lend its aid to the sureties and their agents in every proper way by process and without process to seize the person of their principal and compel his appear

ance.

United States v. Ryder, 110 U. S. 736, 737, 28 L. ed. 310, 311; Bishop, Crim. Proc. par. 889; Schwamble v. Sheriff, 22 Pa. 18.

The right to re-arrest the principal in this case is likened to that of the sheriff arresting an escaping prisoner.

3 Bl. Com. 200; Ruggles v. Corey, 3 Conn. 419; Respublica v. Gaoler of Phila. 2 Yeates, 263; Com. v. Brickett, 8 Pick. 140; Com. v. Riddle, 1 Serg. & R. 311; Wheeler v. Wheeler, 7 Mass. 169.

The principal in this case, that is the deceased, was committed to the custody of his sureties as to jailers of his own choosing.

Reese v. United States, 76 U. S. 9 Wall. 21, 19 L. ed. 544.

The defendant, having the right, as an officer, to rearrest the deceased, it was their duty to do so.

State v. Garrett, 1 Winst. L. 144. The defendants, having authority to arrest, were where they had a right to be, and the defendant, Lingerfelt, when assaulted by the deceased with a deadly weapon, if he had reason to believe and did believe that his life would be taken or that he would receive some great bodily harm unless he shot the deceased, and he shot and killed him, would not be guilty.

State v. Dixon, 75 N. C. 279; State v. Nash, 88 N. C. 618.

The defendant Lingerfelt was not compelled to flee from the deceased.

1 East, P. C. 271; 2 Bishop, Crim. Law, 633-644; State v. Roane, 13 N. C. 58.

It was not necessary that he should retreat to the wall.

State v. Hill, 20 N. C. 491; State v. Hensley, 94 N. C. 1021.

Mr. Theodore F. Davidson, Atty-Gen., for the State.

Shepherd, J., delivered the opinion of the

court:

The only exception necessary to be considered is addressed to the charge "that there was no evidence in the case to show that the prisoners had authority or the right to arrest the deceased." Our first impression was in favor of the view taken by the court below, but upon an examination of the authorities (which were probably inaccessible to his honor) we are of the opinion that the sureties on the bail-bond of the deceased had the right to arrest him in this State, and that they could appoint an agent to make such arrest or to assist them in doing so. It is insisted that the "bail only represents the court from which his authority emanates, and, where the court has no power to arrest, the bail has no power to arrest." Such, indeed, is the language of Mr. Wharton (3 Crim. Law, § 2976), but the only authority he cites is from Canada, where it was held that the bail could not follow his principal from New York, and arrest him in the British dominions.. This is what was said would be dangerous to the national independence of Canada. As between the states, however, a different rule applies, and the distinction is sustained by the highest authority. In Nicolls v. Ingersoll, 7 Johns. 145, the point was elaborately discussed, and the court said that "the power of taking and surrendering is not exercised under any judicial process, but results from the nature of the undertaking by the bail. The bail-piece is not process, nor anything in the nature of it, but is merely a record or memorial of the delivery of the principal to his bail on security given. It cannot be questioned but that bail in the common pleas would have a right to go into any other county in the State to take his principal. This shows that the jurisdiction of the court in no way controls the authority of the bail, and as little can the jurisdiction of the State affect this right as between the bail and his principal." It was also decided that the bail might "depute to another to take and surrender their principal." In Parker v. Bidwell, 3 Conn. 84, it was decided that "bail or a person deputed by him for that purpose may take the principal in another State, or wherever he may be, and detain him, or surrender him into the custody of the sheriff." See also State v. Mahon, 3 Harr. (Del.) 568. In Respublica v. Gaoler of Phila., 2 Yeates, 263, the court said: "The passage from Vattel [quoted on the argument] applies merely to nations entirely independent of each other.

..

In the relation in which the several states composing the Union stand to each other, the bail in a suit entered in another State have a right to seize and take the principal in a sister State, provided it does not interfere with the interests of other persons, who have arrested such principal. But where actions have been brought against the party previous to such seizure the same right does not exist. Nevertheless, if they have originated by collusion with the defendant, and merely to protect him from being surrendered by his bail, the court on good grounds would interfere, and prevent such improper practice." The principle asserted is not restricted to bail in civil cases, but applies equally to recognizances in criminal

STATE OF WASHINGTON, Respt.,

v.

George STOWE, Appt.

(........ Wash.........)

1. If substantial justice has been denied by refusal of a new trial in a criminal case, the appellate court will not hesitate to reverse the ruling.

2. A new trial on the ground of newly discovered evidence in a homicide case will not be denied for lack of diligence where defendant is a poor ignorant, obscure tramp tinker without money, standing, friends or even acquaintances, and who was shut up in jail obliged to rely on the efforts of counsel appointed to defend him, and some diligence is shown although an important part of the newly discov

ered evidence which is to show an alibi is that of a person at whose house the defendant called on the day of the homicide.

3. The rule denying a new trial for merely cumulative evidence does not

apply where the evidence is to prove an alibi.

(November 25, 1891.)

NOTE.-Cumulative evidence as ground for new trial. A multitude of cases have decided that merely

cumulative evidence is not sufficient to warrant granting a new trial; among these are the following: Fuller v. Harris, 29 Fed. Rep. 814; Brown v. St. Louis, I. M. & S. R. Co. 52 Ark. 120; McCormick v. Central R. Co. 75 Cal. 506; Crystal Lake Ice Co. v. McAulay, Id. 631; Byrne v. Reed, Id. 277; People v. Goldenson, 76 Cal. 328; People v. Wong Ah Foo, 69 Cal. 180; Von Glahn v. Brennan, 81 Cal. 261; People v. O'Brien, 78 Cal. 41; Mowry v. Raabe, 89 Cal. 606; Milton v. Blackshear, 8 Fla. 161; Simpson v. Daniels, 16 Fla. 677; Coker v. Merritt, Id. 416; Erskine v. Duffy, 76 Ga. 602; Russell v. Hubbard, Id. 618; Hart v. Jackson, 77 Ga. 493; Etheridge v. Hobbs, Id. 531; Munro v. Moody, 78 Ga. 127; Poullain v. Poullain, 79 Ga. 11; Carter v. State, 75 Ga. 747; Hines v. Beers, 74 Ga. 839; Blalock v. Denham, 85 Ga. 646; Verdery v. Savannah, E. & W. R. Co. 82 Ga. 675; Neill v. State, 79 Ga. 779; Cobb v. State, 78 Ga. 801; Fogarty

APPEAL by defendant from a judgment of

Superior Court for Pierce County

which convicted him of murder. Reversed. The facts are stated in the opinion. Messrs. F. L. Kuhn and Heilig & Heuston for appellant.

Messrs. W. H. Snell, Pros. Atty., and Charles Bedford for the State.

Dunbar, J., delivered the opinion of the court:

Between 10 and 11 o'clock, on the evening of the 5th of October, 1889, Enoch Crosby, an inoffensive and respected citizen of the city of Tacoma, was shot down in cold blood in the public streets of that city. The victim of this murderous and fatal assault lived long enough to give a brief account of the murder. His statement was that he had been down to the depot to see some friends, and on returning home, while walking quietly along C street, two men started out from the side of the barn which fronted on the street, and when within five or six feet from him, without making any demands, or giving any warning, shot him through the body with a

Kan. 312; Beachley v. McCormick, 41 Kan. 485; Houston v. Kidwell, 12 Ky. L. Rep. 386; Oakley v. Sears, 7 Robt. 111; State v. Hanks, 39 La. Ann. 234; State v. Harris, Id. 228; Ham v. Ham, 39 Me. 263; Handly v. Call, 30 Me. 9; Snowman v. Wardwell, 32 Me. 275; Gilmore v. Brost, 39 Minn. 190; Brazil v. Peterson. 44 Minn. 212; Vanderburg v. Campbell, 64 Miss. 89; State v. Griffin, 3 West. Rep. 820, 87 Mo. 608; Dollman v. Munson, 7 West. Rep. 310, 90 Mo. 85; Culbertson v. Hill, 2 West. Rep. 477, 87 Mo. 553; State v. Woodward, 14 West. Rep. 498, 95 Mo. 129; Johnston v. Shortridge, 12 West. Rep. 106, 93 Mo. 227; Corrigan v. Brady, 38 Mo. App. 649; Mercantile Bank v. Hawe, 33 Mo. App. 214; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; Territory v. Bryson, 9 Mont. 32; Territory v. Clayton, 8 Mont. 1; Bell v. York (Neb.) May 6, 1891; Livesey v. Festner, 28 Neb. 333; Flannagan v. Heath (Neb.) May 6, 1891; Campbell v. Holland, 22 Neb. 587; Brooks v. Dutcher, 22 Neb. 644; Tomlin v. Den, 19 N. J. L. 76; Den v. Wintermute, 13 N. J. L. 177; Sheldon v. Stryker, 27 How. Pr. 387,

rison v. State, 83 Ga. 129; Johnson v. State, Id. 553;

Brinson v. Faircloth, 82 Ga. 185; Monroe v. Snow,

Gale v. New York Cent. & H. R. R. Co. 53 How. Pr. 385; Albert v. Sweet, 29 N. Y. S. R. 644; Roberts v. Johnstown Bank, 38 N. Y. S. R. 563; Geneva, I. & S. R. Co. v. Sage, 35 Hun, 95; Powell v. Jones, 42 Barb. 24; Cole v. Van Keuren, 51 How. Pr. 451; Myers v. Riley, 36 Hun, 20; Flemming v. Hollenback, 7 Barb. 271; People v. New York Super. Ct. 10 Wend. 285; Cole v. Cole, 50 How. Pr. 59; Barteau v. Phoenix Mut. L. Ius. Co. 67 Barb. 354; Peck v. Hiler, 30 Barb. 655; State v. Starnes, 97 N. C. 423; Chandler v. Thompson, 30 Fed. Rep. 38; Com. v. Moss, 6 Kulp, 31; Com. v. Flanagan, 7 Watts & S. 415; Com. v. Murray, 2 Ashm. 41, 69; Sabine & E. T. R. Co. v. Wood, 69 Tex. 679; Blackwell v. State, 29 Tex. App. 194; Johnson v. Flint, 75 Tex. 379; Walker v. Brown, 66 Тех. 556; United States v. Eldredge, 5 Utah, 131; People v. Peacock, Id. 237; Booth v. McJilton, 82 Va. 827; Smith v. Watson, Id. 712; Bond v. Com. 83 Va. 581; Tate v. Tate, 85 Va. 205: Carder v. Bank of West Virginia, 34 W. Va. 38; Wieting v. Millston, 77 Wis. 523; Thrasher v. Postel, 79 Wis. 503.

What is cumulative evidence.

Cumulative evidence is additional evidence to support the same point and which is of the same character with evidence already produced. People

revolver; that one of them then went in one direction and the other in an opposite direction. The motive for this dastardly crime was never disclosed, as the victim, when asked if they had robbed him, had become so exhausted that he could not answer. This crime was committed on Saturday. On the next Wednesday, the 9th of October, the appellant was arrested on suspicion of having committed the crime, and a day or two later one Hoyt was also arrested, and there was a joint information filed against them, charging them in due form of law with Crosby's murder. We have no record of the trial of Hoyt, but appellant was convicted of murder in the second degree, and sentenced to imprisonment in the state penitentiary for twenty years, and appeals to this court, as signing as error: first. that the information laws were not applicable to this case, and that the defendant was entitled to an indictment by the grand jury, the crime having been alleged to have been committed before the admission of Washington into the union of states, and before the State Constitution went into force and effect; second, that the evidence does not warrant the verdict; and,

third, that a new trial should have been granted on the ground of newly discovered evidence.

The first assignment, though urged at length in the brief, was not relied upon at the trial, as that question had lately been settled adversely to appellant's contention in Lybarger v. State (Wash.) 27 Pac. Rep. 449. With the view this court entertains as to the third assignment of error, it will not be necessary to discuss the second.

It was claimed by the appellant that he was in the town of Tumwater, a village between thirty and forty miles from Tacoma, on the day on which Crosby was murdered, pursuing the vocation of an itinerant tinker or mender of tinware; that he was there from Saturday to Sunday morning; and different citizens of Tumwater swore that they saw him there during the day; and witness Tice, who was keeping the hotel at Tumwater, swore that he stayed at his house on that Saturday night, October 5th; that he woke him up to breakfast the next morning, (Sunday); that he ate breakfast there. It seems there was no register kept at Tice's hotel. After the trial, and within the time

Evidence which merely multiplies witnesses to any one or more of those facts before investigated, or only adds other circumstances of the same general character, is cumulative and not ground for new trial. Aholtz v. Durfee, 25 III. App. 43, affirmed in 11 West. Rep. 410, 122 III. 286.

Evidence tending merely to corroborate and strengthen is cumulative. Wimpy v. Gaskill, 79 Ga. 620.

Evidence of new facts not proved on the former trial is not cumulative. Parshall v. Klinck, 43

Barb. 203.

Evidence bringing to light some new truth of a different character is not cumulative, although proving the same propositions before insisted on. State v. Bailey, 13 West. Rep. 620, 94 Mo. 311.

One court states the rule to be that evidence is cumulative when it goes to the fact principally controverted on a former trial and respecting which the party asking for a new trial produced testimony on such trial; but in this case the newly discovered evidence was merely that of additional witnesses, on a question of payment. Grubb v. Kalb, 37 Ga. 459.

And this perhaps is not intended to contradict the better stated rule that evidence is not cumulative merely because it tends to prove the same ultimate or principally controverted point. Able v. Frazier, 43 Iowa, 175; Wayt v. Burlington, C. R. & M. R. Co. 45 Iowa, 217; German v. Maquoketa Sav. Bank, 38 Iowa, 368.

Or that evidence dissimilar in kind, although it approves the same point, is not cumulative. Wynne v. Newman, 75 Va. 811; St. John v. Alderson, 32 Gratt. 140.

Or that testimony is not merely cumulative within the rules as to a new trial, where it tends to prove a distinct fact not testified to at the trial, although other evidence may have been introduced by the moving party tending to support the same ground of claim or defense to which such fact is pertinent. Goldsworthy v. Linden, 75 Wis. 24; Bigelow v. Sickles, 75 Wis. 427; Howland v. Reeves, 25 Mo. App. 458; Waller v. Graves, 20 Conn. 305;

Evidence of a new fact, such as giving a check to establish an inference in aid of the main fact, is not cumulative. German v. Maquoketa Sav. Bank, 38 Iowa, 368.

Modifications and limitations of the rule. Courts have sometimes disapproved of the rule and declared that it does not rest upon any just or solid foundation. Wilcox Silver Plate Co. v. Barclay, 48 Hun, 54.

So they have sometimes held that evidence which makes a doubtful case clear, although cumulative, may be ground for new trial. Barker v. French, 18 Vt. 460; Clegg v. New York Newspaper Union, 51

Hun, 232.

Also that merely cumulative evidence, if it has the effect to render clear and positive that which was before equivocal and uncertain, will justify a new trial, especially in a capital case. Andersen v. State, 43 Conn. 514, 21 Am. Rep. 669.

So the rule is weakened by saying that cumulative evidence will not be sufficient unless it is decisive of the case and conclusively leads to a changed result. Petefish v. Watkins, 13 West. Rep. 885, 124 III. 384.

Cases of ejectments for military lots were in several early New York cases held to be exceptional and peculiar in respect to new trials because of their obscurity and the ease with which frauds could be perpetrated concerning them, and in such cases cumulative evidence was held sufficient for a new trial. Jackson v. Hooker, 5 Cow. 207; Jackson v. Crosby, 12 Johns. 354.

As held in the main case above, new evidence to prove an alibi is not insufficient ground for new trial merely because it is cumulative. Smythe v. State, 17 Tex. App. 244; Pinckord v. State, 13 Tex. App. 468.

The cases of Tyler v. State, 13 Tex. App. 205 and Lawson v. State, Id. 264, perhaps furnish some support to the same proposition.

Proof of an alibi as ground for a new trial in a suit for seduction is not cumulative where defendant gave no evidence on that point at the trial because he was surprised in respect to the time testified to by the plaintiff and so was unprepared to meet it. Sargent v. -, 5 Cow. 106.