Opinion of the Court. son upon whom it is committed, he would practically lose the benefit of the statute, though he may not have made the slightest effort to keep it secret. The vice of the instruction in this particular was that there was no evidence whatever that the defendants, or either of them, said or did anything before or after the securities came into their hands, to conceal the transaction from the plaintiff. There was no claim that the defendant Bates knew anything about it. Defendant Walley was the active partner in the transaction, and there is nothing to indicate that he made any effort at concealment. While he sometimes called at the plaintiff's house, it does not appear that he ever spoke to her about business until the autumn of 1882, when he called upon her and told her that her son was in trouble and had been arrested in New York. Upon plaintiff offering to raise money and assist him by the sale of some of her bonds and stock, he then informed her that he was afraid they were lost. Within two or three days after that she went to the vault and found that they had been abstracted. Granting that the relations between Edward Preble and his mother were such as to make a revelation of the facts a duty upon his part, there was no such confidential relation between the plaintiff and defendants as would cause silence upon their part to be imputed as a fraud. Even admitting that they and Edward Preble were co-conspirators, and that they were responsible for his acts connected with such conspiracy, it would be carrying the doctrine to an unwarrantable extent to hold that his subsequent silence upon the subject could be chargeable to them. Without discussing the other assignments we think the case should be Reversed and remanded to the Circuit Court with instructions to set aside the verdict and grant a new trial. Statement of the Case. TUCKER v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. No. 970. Submitted December 4, 1893. Decided January 3, 1894. An affidavit, under section 878 of the Revised Statutes, by a person indicted, setting forth that certain testimony is material to his defence and that he is without means to pay the witnesses, and praying that they may be summoned and paid by the United States, is not a “ pleading of a party," nor "discovery or evidence obtained from a party or witness by means of a judicial proceeding," which cannot, by section 860, be given in evidence against him in a criminal proceeding. On a trial for murder of a woman by shooting, the jury were instructed that if the defendant, at the time of the killing, although not insane, was in such a condition, by reason of drunkenness, as to be incapable of forming a specific intent to kill, or to do the act that he did do, the grade of his crime would be reduced to manslaughter. Held, that he had no ground of exception to a refusal to instruct that if at the time of the killing he was so drunk as to render the formation of any specific intent to take her life impossible on his part, and before being drunk he entertained no malice towards her and no intention to take her life, he could not be convicted of murder. Rulings objected to at the trial, but not stated in the bill of exceptions to have been excepted to, are not subject to review on error. THIS was an indictment, found at November term, 1892, of the Circuit Court of the United States for the Western District of Arkansas, against Marshal Tucker, for the murder of Lula May, a white woman, by shooting her with a pistol, at the Choctaw Nation in the Indian Country in that district on October 15, 1892. The defendant pleaded not guilty; and by agreement of the parties the case was ordered to be continued to the next term and set down for trial on February 23, 1893. On February 21, 1893, the defendant, by his attorney, filed an application, dated February 20, and signed and sworn to by him, pursuant to section 878 of the Revised Statutes, setting forth that certain persons named were material witnesses for Statement of the Case. his defence; that "by the three first-named witnesses, who reside at South McAlester, he can show that he was so intoxicated at the time of the alleged homicide that he had no knowledge of what he was doing, and was incapable of forming any design;" that "these statements he believes to be true, and he is not possessed of sufficient means, and is actually unable to procure the attendance of said witnesses;" and therefore praying that they might be summoned at the expense of the United States. Thereupon the court ordered that the legal expense of procuring the testimony of those witnesses be paid by the United States, and that a subpoena be issued for them returnable February 23. At the trial, in March, 1893, the government introduced evidence tending to show that the woman killed was an inmate of a house of ill fame, and that the defendant, on the evening of October 15, 1892, went to the house and asked for admittance, and, the door not being opened, fired a pistol through the door and killed the woman. The defendant called none of the witnesses named in his application; but, having offered himself as a witness in his own behalf, testified as to what took place at the time of the killing, and, among other things, that he did not fire any shot at all; that after he had asked to be admitted to the house, a shot was fired by some other person, whether from the inside or the outside he did not know, and afterwards his pistol was put into his hand by another man whom he named. On cross-examination, the defendant testified that he signed the application aforesaid; that he had not since changed his mind about whether he knew what was going on there or not; that the witnesses named were present, and saw him intoxicated at the time of the killing; that the defence then intended was not that he was crazy; and further testified that on the night of the killing he was not so drunk as not to know what he was doing, and everything that was going on. The district attorney, in rebuttal, offered in evidence the application for witnesses. The counsel for the defendant objected that it was incompetent, under section 860 of the Statement of the Case. Revised Statutes. But the court admitted the paper in evidence, and the defendant excepted to its admission. The defendant contended that he did not kill the woman; that, if he did, his crime was manslaughter only; and that, at the time of the killing, he was intoxicated. The substance of the instructions of the court upon the subject of intoxication sufficiently appears by the following extracts: "If the statement of the defendant himself, that he did know what he was doing, is true, and he intentionally drew the pistol, presented it, and fired it so as to take the life of this woman, that would not be a state of case where there would be that absence of that premeditation which goes to make malice aforethought. If he was in a condition of mind, at the time that he was so acting, that his mind was so disturbed by drinking, by a drunken condition, that he was incapacitated so that he was incapable of forming any intent, or intent to do a wrongful act that might result in death, that may be taken into account for the purpose of showing a state of case where the crime would be of less grade than that of murder." "When a man's mind is in a condition where he can form an intent to do a wrongful act that may result in murder, and he does deliberately form that intent, as evidenced by the drawing and presenting and firing his pistol, then intoxication does not mitigate his offence. If he is carried beyond that, although he may not be absolutely insane, so that his will power is gone, so that he has no control over it, so that he cannot restrain it, while he may not be insane, then there is an absence from the case of what is denominated by law as malice aforethought, and his offence would be manslaughter." "You are not to excuse him to the extent of mitigating his crime because he was drunk, unless he was in that condition where he was incapable of forming an intent, where he was incapable of coming to a conclusion- and it does not mean alone incapable of forming a specific intent to kill, but it means incapable of forming a specific intent to do an act that may kill, that goes so far as to reduce the grade of the crime. If he could not form a specific intent to do the act he did do, then that would reduce the grade of the crime, because of drunkenness." Opinion of the Court. The defendant requested the court to instruct the jury that if they believed from the evidence "that the defendant was at the time of the killing of Lula May drunk, and that before becoming drunk he entertained no malice toward her and had no intention to take her life, and that his intoxication was so deep as to render the formation of any specific intent to take life impossible on his part, he could not be convicted of murder." This request was refused, "because the law had been correctly given on the subject of drunkenness;" and to the refusal of the court to so instruct the jury the defendant at the time excepted. The bill of exceptions further stated that the defendant objected to the instructions given by the court to the jury in several particulars, but did not show that an exception was taken to any of those instructions. The defendant was convicted of murder and sentenced to death, and sued out this writ of error. Mr. A. H. Garland for plaintiff in error. Mr. Assistant Attorney General Conrad for defendants in error. MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court. The only exception argued to any ruling upon evidence was to the admission, in contradiction of the defendant's own testimony at the trial, of the application made by him on oath, a few days before, for the summoning and payment by the United States of witnesses in his behalf. That application was made under section 878 of the Revised Statutes, which is as follows: "Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are witnesses whose evidence is material to his defence; that he cannot safely go to trial without them; what he expects to prove by each of them; that they are within the district in which the court is held, or within one hundred |