It

a purchaser, is by showing his consent to become the purchaser's bailee. may or may not be to him that; but if a warehouse receipt contains an undertaking to deliver to order, that undertaking is to be regarded as an offer by the warehouseman to any who will take the receipt on the faith of it, and that it will make him warehouseman for the indorsee, without more, on ordinary principles of contract. That is the argument of Benjamin on Sales, 676 et seq., criticising Farina v. Home, 16 Mees. & W. 119, and Blackburn on Sales, 297. But the criticism and case agree in the assumption that the only way in which an indorsement of a document of title can have the effect of a delivery is by making the custodian bailee for the holder of the document, and that he cannot be made so otherwise than by his consent. The necessity for notice, in those cases where notice is necessary, stands on the same ground. If the custodian has not assented in advance, he must assent subsequently; and the principle is the same whether an express acceptance of a delivery order be required, or it is held sufficient if he does not dissent when notified. Boardman v. Spooner, 13 Allen, 353, 357; Carter v. Willard, 19 Pick. 1-3; Bentall v. Burn, 3 Barn. & C. 423. * * * When a private warehouseman, who has an unfettered right to choose the person for whom he will hold, gives a receipt containing only an undertaking to his bailor personally, without the words or order,' or any other form of offer or assent to hold for any one else, it is impossible to say that a mere indorsement over of that receipt will make him bailee for a stranger. He has not consented to become so, even under the principles argued for by Mr. Benjamin. And until he has consented to hold for some one else he remains the bailee of the party who intrusted him with the goods.'"

In the case at hand the court was called upon to say whether the instrument, as indorsed, brought about a constructive delivery of the property. The evidence which preceded failed to show any delivery of the receipt as indorsed to Gross, or to account for its possession in the hands of the bailee, except in a way which strengthened the assumption there was no delivery of it to Gross, and in the absence of anything to show the assent of the custodian of the property to hold it for any other; the legal construction of its terms, as regulated by well-settled rules of law, necessarily excluded its introduction in proof of the fact of delivery. It was, therefore, admissible to show a symbolical delivery as against an attaching creditor.

As this action was commenced, and the rights under it accrued, prior to the recent act of the legislature making warehouse receipts negotiable, it has no application to the case. The judgment is af firmed.

SUPREME COURT OF NEVADA.

(19 Nev. 53)

SWEENEY V. SCHULTES and others.

Filed December 8, 1885.

SUMMONS-SERVICE-NOTICE-TECHNICAL OBJECTIONS.

On rehearing, former opinion, 6 Pac. Rep. 44, adhered to.

Appeal from judgment, Sixth judicial district court, Eureka county, entered in favor of the plaintiff.

H. L Mitchell, for appellants.

Wren & Cheney, for respondent.

HAWLEY, J. A reargument of this case, upon rehearing, has not changed our views in any respect. The questions involved were sufficiently discussed in our former opinion.1

The judgment of the district court is affirmed.

16 Pac. Rep. 44.

SUPREME COURT OF KANSAS.

(34 Kan. 488)

STATE V. WITT.

Filed December 4, 1885.

1. HOMICIDE-MURDER-INDICTMENT-MISNOMER OF PARTY KILLED.

In an information charging the defendant with murder, the name of the person killed was alleged to be "Bernhart," and upon the trial his name was given by the different witnesses as "Banhart," "Benhart," "Beanhart," and Bernhart." Held, that an instruction by the court that a mere difference in the spelling of the name which the deceased bore, and that alleged in the information to have been his name, is immaterial, if the name proved be idem sonans with that stated in the information, was not inapplicable or erroneous. 2. SAME NAME, HOW STATED.

As a general rule, the name of the person injured should be stated in the indictment or information with sufficient certainty so that the accused may know of what offense he is charged; but where the person injured is so well described, and his name is so given, that his identity cannot be mistaken, the object of the rule has been accomplished.

3. TRIAL-REFUSAL OF INSTRUCTION-REASONABLE DOUBT.

It is not error for the court to refuse a special instruction that if any one of the jury entertain a reasonable doubt of the defendant's guilt there must be an acquittal.

4. SAME-INSTRUCTION AS TO DUTY OF JURORS.

In the trial of a criminal case it is the duty of the court, when requested by the defendant, to instruct the jury in regard to the individual duty and responsibility resting upon each member of the jury in determining what the verdict should be, and where the defendant is charged with a capital offense. and the testimony to support the charge is wholly circumstantial, the refusal of the court to give a special instruction requested by the defendant that “if any one of the jury, after having considered all the evidence in this case, and after having consulted with his fellow-jurymen, should entertain a reasonable doubt of the defendant's guilt, or, after such consideration and consultation, should entertain a reasonable doubt as to whether or not the defendant was present at the time and place of the commission of the alleged homicide, then the jury cannot find the defendant guilty," is reversible error, although the court in its general charge may have instructed the jury as a body that before they can convict they must be satisfied beyond a reasonable doubt of the guilt of the defendant.

VALENTINE, J., specially concurring; HORTON, C. J., dissenting.

Error from Chautauqua county.

S. D. Witt was placed on trial in the district court of Chautauqua county for murder in the first degree. He was charged with the shooting and killing of one C. Bernhardt on the twenty-third day of September, 1883. The defendant pleaded "not guilty," and the case was tried at the following November term. After the testimony had been concluded, the defendant asked the court to give the jury the following instructions:

"First. If the jury, or any one of the jury, after consideration of all the evidence in said cause, entertain a reasonable doubt as to whether or not the defendant, S. D. Witt, was present at the time and place of the alleged homicide, in the information in this case charged, then it is the duty of the jury to acquit the defendant.

"Second. If any one of the jury, after having considered all the evidence in this case, and after having consulted with his fellow-jurymen, should enV.8p.no.12-49

tertain a reasonable doubt of the defendant's guilt, or, after such considerasion and consultation, should entertain a reasonable doubt as to whether or not the defendant was present at the time and place of the commission of the alleged homicide, then the jury cannot find the defendant guilty."

The court refused the instructions requested by the defendant, and thereupon gave to the jury the following general charge:

"Gentlemen of the Jury: The information in this case charges the defendant, S. D. Witt, with the crime of murder in the first degree, in the willful, deliberate, and premeditated murder of C. Bernhardt, in this county, on the twenty-third day of last September, by shooting him with a shotgun. Murder in the first degree is punishable with death, in the discretion of the governor of the state, at such time as he may appoint, not less than one year from the time of conviction, the convict to remain confined within the walls of the state penitentiary at hard labor in the mean time, until the governor shall order his execution. Murder is the unlawful killing, by a person of sound memory and discretion, of any reasonable creature in being, and in the place of the state, with malice aforethought, either express or implied. Every murder committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, is deemed murder in the first degree. That you may the better comprehend the legal definition of murder heretofore given, it is proper that I should explain the meaning of the term 'malice aforethought.' Malice, in its legal sense, differs from the meaning which it bears in common speech. In its common acceptance it signifies ill will, hatred, or revenge towards a particular individual. Such a condition of the mind would, of course, constitute malice in the eye of the law. But such is not necessarily its legal sense,-the meaning intended to be conveyed by that term in the legal definition of murder. Malice, in its legal sense, denotes that condition of one's mind which is manifested by his intentionally doing a wrongful act without just cause or excuse. It means any wicked or mischievous intention of the mind. If one gives a perfect stranger a blow likely to produce death, he does it with malice, if he does it intentionally and without just cause or excuse. So, in a prosecution for murder, which must always be stated in the charge to have been committed with malice aforethought, it is not necessary, in order to support such a charge to show that the accused had any enmity against the deceased, nor would proof of the absence of ill will furnish the accused any defense, if it had been proven that the act of killing was intentional, and had been done without justifiable cause or excuse. The term aforethought' means thought of beforehand, however short the time. In order to constitute murder in the first degree a design must be formed to kill willfully, that is, with the intention that the act done should have the effect of taking the life of a human being; maliciously, —that is, with malice aforethought, as above defined; deliberately, that is, with cool purpose, after having weighed and considered the mode and means by which such design should be effected; and with premeditation,-that is, the design to kill must have been formed before the act is performed by which the death is produced. In order to warrant the convicting of the defendant of the crime of murder in the first degree as charged in the information, you must be satisfied from the evidence, beyond a reasonable doubt, that he, the defendant, on or about the twenty-third day of September last, and in the county of Chautauqua and state of Kansas, did willfully, deliberately, premeditatedly, and of his malice aforethought, kill C. Bernhardt, by shooting him with a shotgun loaded with gunpowder and leaden shot. A mere difference in the spelling of the name which the deceased bore and that alleged in the information to have been his name is immaterial, if the name proved be idem sonans, as the law books express it, that is, of the same sound, or

sounding the same,-with the name stated in the information. It is necessary, however, that the name proved should at least be idem sonans with that stated in the information, and this is one of the material averments of the information which the state must establish by the evidence in the case. There has been some evidence produced on the behalf of the defendant in this case tending to prove an alibi; that is, that the defendant was at a different place than that at which the alleged homicide was committed at the time of its commission. It is hardly necessary that I should say to you that proof that a party accused of crime was so situated, at the time and place of its commission, as to render it impossible that he should have participated in its commission, is conclusive proof of the fact of his innocence. To make a complete alibi, however, the evidence should show that the accused was so situated at the time of the commission of the crime as to make it impossible that he could have been present at the place when the crime was committed. The defense of an alibi is in no sense an implied admission of the defendant's guilt in case the proof should fail to establish the alibi. One of the essential averments in the charge preferred against the defendant in a criminal case is that he was present and committed the act which constitutes the crime, and any evidence introduced by the defendant tending to show that he was not so present is legitimate for the purpose of disputing the averment in the charge against him that he was present at the commission of the crime. So that, if, upon the consideration of the whole evidence in this case, including that tending to establish an alibi on the part of the defendant, you have a reasonable doubt of the defendant's guilt, you should return a verdict of not guilty. The defendant is presumed innocent until he is proved guilty; and if there is a reasonable doubt whether his guilt has been satisfactorily shown by the evidence, he should be acquitted. It is not sufficient in a criminal case that the facts and circumstances proven by the state should merely be consistent with the defendant's guilt. In order to justify a conviction, the facts and circumstances proven should not only point to the defendant's guilt, but, when considered altogether, they should be susceptible of no other rational solution except upon the theory of the defendant's guilt. You are the conclusive judges of the weight of the evidence, of the facts proven, and of the credibility of the witnesses."

The defendant excepted to the general charge, and also to the ruling of the court in refusing the special instructions which he had requested. The jury returned a verdict, finding the defendant guilty as charged. He moved for a new trial upon several grounds, but relied principally upon the following:

"That the court in its instructions misdirected the jury in material matter of law. That said court refused to give to said jury certain special instructions in material matters of law asked for by said defendant in due time, and which said instructions said defendant was entitled to have given as asked. That the foreman of said jury, H. A. Koogle, was guilty of improper conduct, tending to prevent a fair, impartial, and due consideration of said cause by said jury, in this: that said H. A. Koogle, after said jury had retired to their jury-room to deliberate upon their verdict in said cause, and immediately upon their electing him as the foreman of said jury, proposed to said jury that as a number of them were Christian men, that the deliberations of said jury be opened with prayer, and thereupon immediately, in a loud voice, in the hearing of said jury, prayed at great length, tending thereby to exert upon the minds of said jury an undue influence. That said jury, while in charge of the officer appointed to take charge of them, and while deliberating upon the verdict in said cause, were improperly placed and kept in two separate rooms with a door of communication between them, permitting the jurors to pass