Criminal Law—Misconduct or Jury—Beading Prejudicial Newspaper Article Outside Jury Boom—Affidavits or Jurors Inadmissible.—Upon a motion for a new trial for alleged misconduct of the jurors in reading a newspaper article outside of the jury room, which was prejudicial to the defendant, the affidavits of the jurors in respect thereto, were as inadmissible to impeach their verdict, as if the reading had been inside of the jury room.

Id.—Misconduct Proved by Uncontradicted Affidavit of Juror’s Wife.—Prejudicial misconduct, necessitating a new trial, was proved by the uneontradieted affidavit of a juror’s wife, that she read such prejudicial newspaper article to her husband, the night before the ease was submitted to the jury.

Id.—Presumption that Juror Heard Beading.—As the husband was a juror, it must be presumed that his hearing was normal, and in the absence of a counter affidavit by him, it must be assumed that he heard the reading of the prejudicial article by his wife.

Id..—Prejudicial Nature or Article—Inadmissible Contents—Questions Suggesting Contents Misconduct.—The prejudicial nature of the article appears on its face, rendering its contents, if true, wholly inadmissible in evidence, and its contents were such that the mere asking of questions by the district attorney suggesting and insinuating the existence of the facts stated in the article would be misconduct.

Id.—Presumption or Prejudice from Misconduct of Juror.—Upon' the showing of misconduct by a juror, the law presumes prejudice, and this presumption cannot be overcome by a counter conclusion based upon mere conjecture that the court knew the mental and moral characteristics of the juror.

Id.—Charge op Murder—Admissibility of Dying Statement-Specific Objection not Urged.—Where upon the trial of a charge of murder, dying statements were admissible on their face, they were properly admitted, in the absence of a specific objection that they were not made under a sense of impending death.

Id.-—Improper Evidence—Bad Conduct of Wounded Man toward Defendant..—The court improperly admitted evidence that when defendant was present at a dying statement made at a receiving hospital by the wounded man, the latter raised himself slightly from the operating table, and applied a vile epithet to the defendant, and spat in his face.

Id.—Inadmissible Declaration of Defendant not Part of Bes Gestae, nor Admissions.-—Declarations of the defendant made to the arresting officers at a distance from the place of the shooting, in response to statements made by them, as to Ms identity: “I

haven’t done anything. I haven’t got any gun,” were not admissible as part of the res gestos, nor as showing admissions of guilt.

Id.—Inadmissible Statements of Arresting Officers.—A conversation between the arresting officers at the time of the arrest: “This is the Chinaman,” “This is the man,” was not admissible, as evidence of identity of the man as the deceased’s assailant.

Id.—Proper Evidence of Officers—Recognition of Defendant by Wounded Man—Turning Away of Defendant’s Head.—The court properly admitted evidence of the arresting officers that when defendant was brought before the wounded man, he recognized him as one of his assailants, though he turned his head away, as if wishing to escape identification.

Id.—Evidence of Other Homicides by Chinese Tong—Connection not Shown—Proper Exclusion.—The court properly excluded offered proof to show that a certain Chinese tong was responsible for other murders committed both before and after the killing of the deceased, where there is a failure to establish a connection between such other homicides and the ease on trial.

Id.—Cross-Examination—Questions Disallowed without Prejudice. ■—The disallowance of questions on cross-examination, one of which was prima facie irrelevant, the purpose of which was not disclosed, and another of which related merely to the whereabouts of a witness during the shooting, is held to have been without prejudice.

Id.—Cross-Examination by Defendant of His Witnesses Disallowed—Discretion not Abused.—Hostility not Proved.—It is held that the refusal of the trial court to allow defendant to cross-examine his own witnesses, claimed to be hostile, must appear to be flagrant error, and an abuse of the discretion vested in the trial court, before this court will interfere with its ruling; and that its discretion cannot be said to be abused, where there was no sufficient showing of the hostility of the witnesses.

Id.—Condition and Manner of Defendant when Arrested—Competent Evidence.—The police officers were properly allowed to testify that when the defendant was arrested, he was puffing, and was pale, nervous and excited. Such appearances may be described by ordinary witnesses who have observed them.

Id.—Defense of Alibi—Evidence for Defendant—Requested Instruction Proper,—Where there was evidence introduced for the defendant, which, if true, tended to show that he was not present at the time of the homicide, a requested instruction as to alibi based on such evidence was proper and should ha-ve been given.

Ib.—Improper Argument by Special Prosecutor—Evidence outside Record—Murder of Interpreter—Misconduct not Corrected.— It is held to have been highly prejudicial misconduct for a special prosecutor to make .argument on happenings outside of the evidence, insinuating that an interpreter had been murdered by an opposing tong to prevent his appearing as a witness for the prosecution. Such misconduct should have been promptly corrected by the judge, and it was error to refuse to correct it when requested by defendant’s counsel.

Id.—Proper Instruction as to Duty of Jurors.—The court erroneously refused to give a proper requested instruction, which is applicable to all kinds of criminal eases, that jurors are not required to surrender their honest convictions for the mere purpose of agreeing upon a verdict.