P. Palmer v. Phoenix Mutual Life Ins. Co., 84 N. Y. 63 Pentecost v. Stiles, 5 Okl. 500 551 188 353 129 363 490 423 146 People ex rel. Linton v. Brooklyn, etc. Co., 172 N. Y. 90.. 252 Peterson v. C. R. I. & P. Ry., 205 U. S. 364-394 65 Philbrook v. Smith, 40 Minn. 100 .... 489 Phoenix, etc. Ry. Co. v. Arizona, etc. Ry. Co., 9 Ariz. 434 121 65 52 480 413 333 521 Pratt v. D. N. N. Ry., 72 Iowa 249 Preston v. Bowers, 13 Ohio St. 1 Providence Tool Co. v. Prader, 32 Cal. 634 Pulliam v. Withers, 8 Dana (Ky.) 98 R. Railroad Co. v. Baldwin, 103 U. S. 426 Rich v. Chicago, B. & Q. Ry. Co., 34 Wash. 14 Roswell v. Equitable Aid. Union (C. C.), 13 Fed. 840 551 S. Sims v. Moore, 61 Iowa 130 Slatterie v. Pooley, 6 M. & W. 664 Smith v. Carley, 8 Ind. 451 Smith v. Commonwealth, 21 Grat. (Va.) 811 ..... Sayers v. Superior Court, 84 Cal. 642 451 Smith v. Spaulding, 40 Neb. 339 ..... State v. Board of Com'rs, 60 Minn. 510 State v. Bonnell, 119 Ind. 494 State v. Bertoch, 112 Iowa 195 State v. Best, 111 N. C. 638 State v. Carr, 28 Or. 389 ... ... State ex rel. Atty.-Gen. v. Southern, etc. Co., 18 Minn. 40.... 252 State ex rel. Dunner v. Graydon, 6 Ohio Cir. Ct. R. 634...... 280 State ex rel. Smart v. Kansas City, etc. Ry. Co., 51 La. Ann. 200. 252 State v. Republican Valley Ry. Co., 17 Neb. 647 State v. Spencer, 13 Am. & Eng. Ann. Cas. 973 State v. Stiff, 104 Mo. App. 685 State v. Van Tassel, 103 Iowa 6 St. Clair v. Cox, 106 U. S. 350 Succession of Harkins, 2 La. Ann. 923 419 Swift v. People, 63 Ill. App. 453 161 Stylow v. Wisconsin Odd Fellows Mut. L. Ins. Co., 69 Wis. 224.. 551 T. Talbot v. Garretson, 31 Or. 256 Tallman v. McCarty, 11 Wis. 401 .... Third Nat. Bank v. Divine Groc. Co., 97 Tenn. 603 .... U. Underwood v. Waldron, 12 Mich. 90 V. 334 346 343 512 512 489 186 566 ..... Village of Hempstead v. Seymour, 34 Misc. Rep. 92 W. Wallace v. Eldredge, 27 Cal. 496 Washington Life Ins. Co. v. Berwald (Tex. Civ. App.), 72 S. Wells v. New Haven & N. Co., 1 Am. R. R. & C. Rep. 719. Wilson v. Baptist Educational Soc., 10 Barb. (N. Y.) 308 186 387 Winter v. Montgomery Gaslight Co., 89 Ala. 544 Wyman v. Phoenix Mutual Life Ins. Co., 53 Hun 637.. 551 Y. Young v. Boston & Me. Ry., 69 N. H. 356 Z. Zoldoske v. State, 83 Wis. 580 Zelnicker Supply Co. v. Cotton Oil Co., 103 Mo. App. 94 REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF UTAH. (Continued from Volume 37.) STATE v. VANCE. No. 2039. Decided July 13, 1910 (110 Pac. 434). 1. INDICTMENT AND INFORMATION-ELECTION BETWEEN CHARGESMEANS OR CAUSE OF DEATH. The count of an indictment averring that on a certain day defendant beat, kicked, and bruised deceased, and the next day administered poison to her, and that, by means of all this, she became mortally sick, and of the mortal sickness thereby occasioned she died, charges but one means or cause of death, the combined effect of the two transactions, so that no election by the state can be required on the theory of its being alleged that the death was caused by different means. (Page 17.) 2. HOMICIDE-INDICTMENT-VARIANCE-MEANS OR CAUSES OF DEATH. Where an indictment charges death to have been caused by cooperating causes, there can be no conviction on evidence that it was caused by one of them singly. (Page 18.) 3. CRIMINAL LAW-EXPERT TESTIMONY-EFFECT-MEANS OR CAUSE OF DEATH. While ordinarily a jury after considering and weighing purely opinion evidence contrary to their own knowledge and experience may disregard it entirely, they may not do so where witnesses, though testifying as experts, testify to symptoms and conditions actually seen and observed by them; and where experts describe to the jury the conditions as they have observed them on an autopsy, and the effects attributable to 38 Utah] (1) such conditions, and state that there were no internal evidences of injury from the beating of deceased, and that she did not die from either the beating alone or from the shock therefrom, but from the combined effect of these and poison, and such evidence stands unimpeached, it may not be ignored, and the jury authorized to find that death resulted from the beating alone. (Page 22.) 4. HOMICIDE-EVIDENCE-DYING DECLARATIONS. Dying declarations may be either in writing or oral, and where there are both, if otherwise competent, either or both may be given in evidence. (Page 24.) 5. CRIMINAL LAW-EVIDENCE-RES GESTAE. Deceased on arising from the kitchen floor where defendant had knocked her went onto the porch, and, calling to a neighbor, said that defendant was killing her. Then as defendant was in the act of closing the kitchen door she returned, when he again seized her, threw her on the floor, and kicked her. Held, that the statement to the neighbor was part of the res gestae. (Page 24.) 6. CRIMINAL LAW-EVIDENCE-DECLARATION OF DECEASED IN DEFENDANT'S PRESENCE. Statement of deceased, though made when she was out of, and defendant in, the house, having been made when he must have heard it, was made in his presence as regards its admissibility. (Page 25.) 7. CRIMINAL LAW-EVIDENCE-TESTIMONY TAKEN AT PRELIMINARY HEARING. That witness was a nonresident of and absent from the state at the time of the trial is sufficient, under Comp. Laws 1907, section 4513, subd. 4, to authorize his testimony, taken at the preliminary hearing in the presence of defendant and with opportunity to him to cross-examine, to be given at the trial.1 (Page 26.) 8. CRIMINAL LAW-RECEPTION OF EVIDENCE-RIGHT TO BE CONFRONTED WITH WITNESSES. The constitutional rights of defendant to be confronted by the witnesses against him are not violated by Comp. Laws 1907, section 4513, subd. 4, authorizing testimony taken at the preliminary hearing, in the presence of defendant and with opportunity to him to cross-examine, to be given at the trial; witness being then a nonresident of and absent from the state." (Page 26.) 9. CRIMINAL LAW-TRIAL AMENDING STENOGRAPHER'S CERTIFICATE -TESTIMONY AT PRELIMINARY HEARING. If the provision of Comp. Laws 1907, section 4670, that the stenographer taking in shorthand the testimony at the preliminary hearing in a homicide case shall transcribe his notes in long-hand, and certify that the transcript contains "a correct statement of testimony and proceedings in the case," is not technically satisfied by a 1 State v. King, 24 Utah, 482, 68 Pac. 418, 91 Am. St. Rep. 808. * State v. King, supra. |