Opinion of the Court. of the witnesses to be produced, and it would be error to put him on trial and allow witnesses to testify against him whose names have not been furnished, if he seasonably asserted his right, Logan v. United States, 144 U. S. 263; but we think he did not do that here, and that the defect was waived. It was suggested by counsel for the defendant that the objection was made as soon as it was discovered that notice had not been given in respect to this witness; but we are of opinion that the discretion of the trial court was properly exercised upon the question. Counsel ought not to sit by and listen to the testimony in chief of a witness before inquiring whether his name has been furnished to the defendants. 3. It is assigned as error that the court did not allow "defendants to show that they were surprised by the testimony of John Johnson, a witness for defendants, and to show previous declarations of said John Johnson to defendants' counsel through an interpreter on several occasions during the preparation of said case contrary to his testimony on the stand, which declarations were favorable to defendants." Johnson was called for defendants and testified that defendant Shade was at his house Tuesday evening, but not again until Friday evening. He was asked if he had not stated to defendants' counsel, through Isaac Shade as interpreter, that Tom Shade was there on Wednesday and Thursday evenings also, but he answered that he had not, and that the interpreter was mistaken. Thereupon Isaac Shade was subsequently asked: "State whether or not in your interpretation of his testimony that he said that Tom stayed at his house Tuesday night, Wednesday night, and Thursday night and Friday night of that week," to which objection was made, which the court sustained, and defendants excepted. During the trial there was an attempt to show that Wilson survived the shooting, which was on Tuesday afternoon, and that defendant Shade afterwards, and by collusion with Hickory, slew the wounded man with an axe. It is possible that, if the evidence had tended to establish that Hickory and Shade had conspired to compass Wilson's death, testimony in support of Shade's alibi for the two days succeeding Tuesday Opinion of the Court. (assuming it made out as to that day) might have been material as to Hickory; but upon this record the bearing upon Hickory of Shade's whereabouts on Wednesday and Thursday is extremely slight, and Shade was acquitted. When a party is taken by surprise by the evidence of his witness, the latter may be interrogated as to inconsistent statements previously made by him for the purpose of refreshing his recollection and inducing him to correct his testimony; and the party so surprised may also show the facts to be otherwise than as stated, although this incidentally tends to discredit the witness. As to witnesses of the other party, inconsistent statements, after proper foundation laid by cross-examination, may be shown; Railway Company v. Artery, 137 U. S. 507; but proof of the contradictory statements of one's own witness, voluntarily called and not a party, inasmuch as it would not amount to substantive evidence and could have no effect but to impair the credit of the witness, was generally not admissible at common law. Best Ev. § 645; Whart. Ev. § 549; Melhuish v. Collier, 15 Q. B. 878. By statute in England and in many of the States, it has been provided that a party may, in case the witness shall in the opinion of the judge prove adverse, by leave of the judge, show that he has made at other times statements inconsistent with his present testimony, and this is allowed for the purpose of counteracting actually hostile testimony with which the party has been surprised. Adams v. Wheeler, 97 Mass. 67; Greenough v. Eccles, 5 C. B. (N. S.) 786; Rice v. Howard, 16 Q. B. D. 681. Johnson was not a hostile witness, and his testimony was not in itself prejudicial so far as it failed to make out the alibi beyond Tuesday, yet it did contradict defendant Shade, who testified that he was at Johnson's Wednesday and Thursday nights. But the court allowed defendants' counsel to crossexamine Johnson if they chose, and to prove the fact to be otherwise than as stated by him, and we cannot say that error was committed because the court in the exercise of its discretion, under the circumstances, declined to concede any further relaxation of the rule. Opinion of the Court. 4. Defendants took certain exceptions to parts of the charge, the first of which was to: "The court's criticism on circumstantial evidence, denouncing persons who are slow to act on circumstantial evidence as fools and knaves." Referring to the necessity of determining the condition of the mind, the court said: "Some say we cannot do it by circumstantial evidence, because it is cruel and criminal, they say, to convict a man upon circumstantial evidence. This is a declaration of either fools or knaves, sympathetic criminals or men who have not ability enough to know what circumstantial evidence is, or to perform the ordinary duties of citizenship. When you consider that these two mental conditions, the fact that the act was done wilfully, and done with malice aforethought, can never in any case be found in any other way than by circumstantial evidence, you can see the potency in every case of that class of testimony. Circumstantial evidence means simply that you take one fact that has been seen, that is produced. before you by evidence, and from that fact you reason to a conclusion." The exception gives a color to this part of the charge which it will not bear, namely, that it amounted to a denunciation of persons "who were slow to act on circumstantial evidence," whereas the court was inveighing against the declaration that it is cruel and criminal to convict a man upon circumstantial evidence, and that the condition of the mind. cannot be found in that way. This was done with great vigor, perhaps induced by the arguments of counsel, but that does not strengthen an exception otherwise destitute of merit. 5. The second exception to the charge was as follows: "Because the court instructed the jury that the defendant, Downing, or the party who invokes the law of self-defence, at the time of the difficulty puts himself in the place of the judge that lays down the law, of the jury who passes upon the facts and enters up judgment, and of the marshal who executes the sentence, and has centred in himself the whole power of the government or people, without telling them that he is not required to look at the case and the occurrences with the same coolness and deliberation that a court and jury would do in investigating the charge against him, and that, if in this Opinion of the Court. case, as claimed by him, the officer Wilson fired off his pistol in the first place when his back was to him, and led defendant, Downing, to believe that the officer was assaulting him, or the officer did then and afterwards assault him, then all the circumstances of excitement, agitation, apparent or real peril that surrounded him, and that may have caused him to misjudge as to the purpose of Wilson, or as to the assault, or to misconceive as to his exact rights and duties, are all to be taken into consideration." Hickory's defence was that the homicide was committed in self-defence, that is, that he was assaulted by Wilson upon a sudden affray, and killed him because he was in imminent and manifest danger either of losing his own life or of suffering enormous bodily harm; or that he was under a reasonable apprehension thereof, and the danger, as it appeared to him, was so imminent at the moment of the assault as to present no alternative of escaping its consequences, except by resist ance. The experienced trial judge told the jury that the mere fact that a killing is done wilfully does not necessarily make it murder; that it is also done wilfully when done in selfdefence; and explained the characteristics of that malice the existence of which is the criterion of murder, defining malice in the ordinary acceptation of the term, and malice aforethought, malice express and malice implied, and pointing out that the requisite malice exists when the act is perpetrated without any provocation or any just cause or excuse, not only on special motive or through special malevolence, but also at the dictates of a heart regardless of social duty and deliberately bent on mischief; and, saying that such malice imported premeditation, thus continued: "The doing of the act which kills must be thought of beforehand. But how long, you will inquire in this case? A minute, or a day, or an hour, or a year? Why, not at all. If it is thought of at a period, practically speaking, cotemporaneous with the doing of the act, it is premeditated, it is thought of sufficiently long. Especially is that the rule applicable in this day, when a man with the rapidity almost of the batting Opinion of the Court. of an eye or a flash of light may execute a purpose to kill. He may conceive a purpose, and instantly with its conception draw his deadly weapon and execute his purpose before you can bat an eye; the purpose is conceived and executed, and the man is dead, but yet it is premeditated, as shown in a case of that kind by the very drawing and presentation and firing of the gun. The law says, as I will read to you presently, that the deliberate selection and use of a deadly weapon is evidence of the existence of malice aforethought, provided the party had no right to use that weapon, or provided there is an absence of mitigating facts when he did use it." That is to say, that when a homicide is committed by weapons indicating design, then it is not necessary to prove that such design existed at any definite period before the fatal act. The learned judge then quoted from the charge in United States v. King, 34 Fed. Rep. 302, (Lacombe, J.,) as follows: "It imports premeditation. Therefore there must logically be a period of prior consideration; but as to the duration of that period no limit can be arbitrarily assigned. The time will vary as the minds and temperaments of men, and as do the circumstances in which they are placed. The human mind acts at times with marvellous rapidity. Men have sometimes seen the events of a lifetime pass in a few minutes before their mental vision. Thought is sometimes referred to as the very symbol of swiftness. There is no time so short but that within it the human mind can form a deliberate purpose to do an act; and if the intent to do mischief to another is thus formed, as a deliberate intent, though after no matter how short a period of reflection, it none the less is malice."" Manslaughter was defined, and the distinction between that and murder; and the right of self-defence invoked by counsel in the case was then explained. The first proposition as to the justifiable exercise of that right was laid down generally to be that when a man, "in the lawful pursuit of his business, is attacked by another, under circumstances which denote an intention to take away his life, or do him some enormous bodily harm, he may lawfully kill the assailant, provided he use all the means in his power otherwise to save his own life or prevent |