of that character was held admissible as tending to show the animus of deceased towards the accused, and whether the latter, at the time of the homicide had reasonable grounds to believe, and did in good faith believe that he was in peril at the hands of the deceased. And, as to the extent and range of such testimony, the court there said: "We do not mean to say that it would have been proper for the court to have allowed evidence as to all the details of the cutting and wounding of appellant by Layne, or of the assault made upon him by the latter with a club, but the fact that both assaults occurred, the general character of the injuries received by appellant at the hands of Layne, and the further fact that the latter was the attacking party should have gone to the jury in evidence." Also, in an extension of the original opinion, the court further said: "Where the defendant introduces proof as to an assault by the deceased on him, the Commonwealth may show that the deceased did not so assault the defendant, and to this end may show what did occur at the time referred to. But the proof should be limited to the res gestae and much detail should be avoided. The court should charge the jury that the evidence is not admitted to show who was to blame in that difficulty, and is only to be considered by them on the question whether at the time of the homicide the defendant believed, and had reasonable grounds to believe, he was then and there in danger of death or great bodily harm at the hands of deceased." Under this rule, and to the extent and for the purpose therein stated, the testimony relating to the difficulty earlier in the day was competent and should have been admitted. Some time previous to the day of the killing of Gilbert, Chaplin met Mrs. Lucy Sloan, the mother of Marcus Sloan, and she, in answer to an inquiry from Chaplin, told him that Marcus would return to Oklahoma within a few days; whereupon Chaplin told her to tell Marcus that he (Chaplin) would be over to see him before he left. He had heard that Marcus was to leave for Oklahoma on the day after the trouble occurred, or about that time. Upon the trial, Chaplin offered to prove this conversation with Mrs. Sloan for the purpose of showing the reason why he went to Jeff Sloan's house on the day of the killing; and evidently for the purpose of negativing the claim that he went there with the view of finding Gilbert, whom he knew lived in the neighborhood. The circuit judge excluded this testimony; and in this ruling we think he was in error. The conversation between Chaplin and Mrs. Sloan occurred several days before the trouble had arisen between Chaplin and Gilbert, and Chaplin was entitled to the benefit of his action if it was based upon that understanding or engagement with Marcus. Evidently the theory of the Commonwealth was that Chaplin went to Sloan's house with his gun for the purpose of seeking out Gilbert and killing him. If Chapin went to Jeff Sloan's house for the sole purpose of seeing Marcus Sloan, the Commonwealth's theory was not true; and, in order to combat the Commonwealth's theory, Chaplin had the right to show by this conversation with Mrs. Sloan, which took place several days before the shooting, that he had agreed to make the visit which he did make on the occasion of the shooting. Its weight and value for the purpose offered lies with the jury; but they should have the right to hear and pass upon that weight and value. Chaplin also offered to prove that Gilbert had on several occasions said he had killed a white man and a negro, but the court rejected the evidence. In this, we think the court ruled properly, since former specific acts of crime committed by the deceased are held rightly rejected as having no connection with what took place at the time of the homicide. (3 Greenleaf's Evidence, Lewis' Ed., Sec. 27.) 2. It is further contended that, in giving instruction 5, the court took from appellant his right of self-defense. There is no objection to the other instructions given, and they will not be noticed, with this exception: In order to fully understand the fifth instruction, we here copy it in connection with the fourth instruction: "4. Although you may believe from the evidence bevond a reasonable doubt, that the defendant shot and killed the deceased, yet if you shall further believe from the evidence that at the time he did so shoot and kill the deceased, if he did so do, he believed and had reasonable grounds to believe that he was then and there in danger of death or the infliction of some great bodily harm, at the hands of deceased, and that it was necessary or was believed by the defendant in the exercise of a reasonable judgment to be necessary, to shoot and kill the deceased in order to avert that danger, real or to the defendant reasonably apparent, then you ought to acquit the defendant upon the grounds of self-defense or apparent necessity therefor. "5. But if you shall believe from the evidence beyond a reasonable doubt that the defendant sought out the deceased and commenced the difficulty with him by drawing or attempting to draw upon him a shot gun, then you ought not to excuse the defendant on the grounds of self-defense or apparent necessity therefor; unless you shall believe from the evidence that he in good faith abandoned such assault and difficulty, and then the deceased, seeing or knowing of such abandonment began to assault the defendant by making demonstration as if to shoot him or do him other great bodily harm, and that it was necessary or was believed by the defendant in the exercise of a reasonable judgment to be necessary, to shoot and kill the deceased, in order to avert that danger real, or to the defendant reasonably apparent, in which event you ought to acquit the defendant upon the grounds of self-defense or apparent necessity therefor." We are of opinion that the fourth instruction covered the law of this case as to self-defense, and that the fifth instruction should have been omitted. Inasmuch as the fourth instruction covered the case in so far as the issue of self-defense was concerned, the fifth instruction, which qualified that right in some material respects, was not only erroneous under the facts of this case, but was wholly unnecessary and misleading. 3. The contention that the circuit judge erred in allowing the Commonwealth six peremptory challenges in making up the panel, when section 204 of the Criminal Code only gives the Commonwealth five peremptory challenges in prosecutions for felony, will not be considered because the alleged error is not shown by the record. In their brief, counsel for appellant do not show where any such ruling was made, and, after a careful reading of the record, we have been unable to find any such ruling by the circuit judge. 4. It is also claimed that the circuit judge erred in overruling appellant's motion to discharge the jury on November 23. The case was submitted to the jury on Saturday, November 19, 1910, at one o'clock p. m., and after having deliberated that day they were adjourned until Monday, November 21, in charge of the sheriff. The same procedure was had on Monday, Tuesday and Wednesday, the 21st, 22d, and 23d, when the jury were adjourned from day to day. On the 23d the appellant moved the court to discharge the jury, without assigning any grounds or cause for the motion. The court overruled the motion to discharge the jury, and adjourned it until the next day, Thursday, the 24th; and upon that day the jury, by unanimous vote, brought in the verdict complained of. Section 251 of the Criminal Code provides that "if, after being kept together such a length of time as the court deems proper, they do not agree in a verdict, and it satisfactorily appear that there is no probability they can agree, the court may discharge the jury." Necessarily, the length of time the jury should be held for purposes of deliberation with the view of finding a verdiet, and the grounds that will be sufficient to justify the court in discharging them when they have failed to find a verdict, must rest largely in the sound discretion of the trial judge. Gilbert v. Commonwealth, 21 Ky. Law Rep., 416. In the case at bar it does not appear that the jury ever reported to the court that they could not find a verdict, or that there was no probability of their being able to find a verdict, or that they said anything whatever upon that subject. Moreover, as above suggested, appellant's motion showed no cause whatever for the discharge of the jury. The motion was based upon the single proposition that the jury should be discharged after having deliberated three days, or possibly four, without having found a verdict. We do not think the court abused its discretion in overruling appellant's motion to discharge the jury, and in holding it as it did until the succeeding day. For the reason given, the judgment of the circuit court is reversed and a new trial ordered. Chesapeake & Ohio Ry. Co. v. Marcum, (Decided March 16, 1911.) Appeal from Lawrence Circuit Court. On the former trial of this case it was reversed because the lower court permitted a recovery for ordinary negligence of appellant's superior, when the recovery should have been confined to gross negligence. See 136 Ky., 245; 124 S. W., 293. WORTHINGTON, COCHRAN & BROWNING for appellant. OPINION OF THE COURT BY JUDGE NUNN-Affirming. This is the second appeal of this case. The opinion on the first appeal relates all the facts of the case and may be found in 136 Ky., 245; 124 S. W., 293. On a return of the case to the lower court it was again tried and a verdict rendered for $2,000 in favor of appellee. The testimony showed on the first trial as well as on the last, that the negligence for which appellee sought recovery was committed by his superior, Thomas Blakinship. The first judgment was reversed because the lower court permitted a recovery for the ordinary negligence of the superior when the recovery should have been confined to The gross negligence. On the last trial, in instruction No. 2, the court said the following to the jury: "And further believe from the evidence that said injuries were caused by the gross negligence and carelessness of defendant's foreman, Thomas Blakinship, by failing and refusing to stop said hand-car and allow plaintiff to leave it at a time when he, the said foreman, could have stopped it and when he knew or by the exercise of slight care could have have known that by reason of the storm it was dangerous not to do so, they will find for the plaintiff and unless they do so believe they will find for defendant." Thus we see that the court told the jury positively that appellee could not recover unless the negligence of Thomas Blakinship, the foreman, was gross. This is made plain throughout all the instructions and the jury could not have misunderstood it. This is the only objection made to the judgment upon this appeal, therefore, it is affirmed. Sackett v. Creech, et al. (Decided March 16, 1911.) Appeal from Harlan Circuit Court. Appeals-Trespass to Land-Injunction-Title not Involved-Jurisdiction-Recovery.-Section 950, Ky. Stats., provides that no appeal shall be taken to the Court of Appeals from a judgment for the recovery of money or personal property if the value in contro |