position was correct or not, it does not seem necessary to decide. The mere asking of a question is not objectionable, though in criminal cases it sometimes happens that the asking of an improper question, like the making of an offer of improper testimony, may be such misconduct on the part of the prosecution as to require reversal. But the obnoxious question in this case was answered favorably to the appellant, and it is not claimed that the asking it constituted misconduct on the part of the state. On the merits of the exception respondent does not contend that what a man says in his sleep can be entertained in a court of justice as proof of any fact, either for or against himself or another. The defense having obtained the testimony of Murphy, a witness Bogart, who was present with Murphy and Scherbring, was called by the state, and asked for his version of what was said, and he stated that Murphy told Scherbring he would certainly die, and that he might as well tell who shot him, whereupon Scherbring answered the single word, "Freidrich." Counsel insists that the court erred in refusing a charge that Bogart's statement could be considered only as offered to impeach Murphy. The court held that it was rebuttal, calling for a full conversation of which a part only had been given. In this, we think, there was no error, except what grew out of the original error in admitting the testimony at the instance of the defendant, of which he cannot complain. As to the admission of such testimony, see State v. Curtis, 70 Mo. 594. The court charged the jury at length, and with such fairness to the accused that no exception was taken to any portion of the charge by him, and no error in giving the charge is now suggested. But five exceptions to refusals to charge are presented. The first one embraced a series of propositions defining and explaining circumstantial evidence in set, scientific, legal terms drawn from text writers, to the giving of which there could have been no objection, except that it was not couched in the plain language which ought, if possible, to be employed in a charge to a jury. The court, in its charge, covered every material point, in better language, because plainer English; and the only ground of complaint is that the defendant had a right to have his propositions of law submitted to the jury in his own language, if they were correct in principle, and applicable to the case. People v. Williams, 17 Cal. 142, and State v. Evans, (W. Va.) 10 S. E. Rep. 792, are relied on to sustain this point. The former case based a reversal on the fact that the court did not say to the jury that his refusal to give the charge requested was because an equivalent one had been given before. This decision must presuppose that the requests to charge were read in the presence of the jury, a practice which does not prevail in this state. In the latter case the theory of a homicide was self-defense, and the defendant proposed a definition of self-defense in the exact language used by the supreme court in Cain's Case, 20 W. Va. 679. Instead of giving the definition asked, the circuit court gave a somewhat similar one, but "weighted down by lengthy qualifications, based upon selections from the evidence of particular facts, which are thus given undue prominence, while the force of the exact and true statement of the principle which the defendant was endeavoring to get before the jury was dissipated and destroyed;" a very different case from that before us, where no objection to or criticism of the language of the learned superior judge is made. Our Code of Procedure (section 354, subd. 4) makes it reversible error for the superior court to refuse an instruction which is pertinent and consistent with the law and evidence, provided that the refusal has worked an injury to the party requesting. This is merely the rule without a statute; and under 2 Thomp. Trials, § 2352, and cases cited, it will be found that no error was here committed. Second request: "In criminal cases, and especially in cases of bomicide, the statements made by the defendant are of the utmost and essential importance." It would have been improper for the court to thus pointedly call attention to the defendant. The proposition is taken from Burrill, Circ. Ev. 187, where it is credited to Starkie on Evidence; but it was made by Starkie when the law did not permit a defendant to be a witness, and could only apply to such of his statements as could be introduced under the general rules of evidence; as, for example, res gestæ, or admissions. As the defendant here was a witness, the charge requested would have called the attention of the jury to him. and given his testimony an importance, as compared with that of other witnesses, to which it was not entitled. The remainder of the exception goes to the refusal to give a paragraph of legal abstraction, valuable to the philosophical student of the theories of circumstantial evidence, but not instructive to read to a jury. There was certainly no error in declining to do so, in view of what was said to them. Third request: "The statements made by the injured party days or hours after the receipt of the injury are not, in and of themselves, competent evidence against a person accused of murder. They are hearsay, and wholly incompetent and inadmissible; but when the statements are made by the injured party to the defendant, or in bis presence or hearing, and the defendant remained silent under the accusation, such silence is a tacit admission of the truth of the accusation. It is the acts, words, and conduct of the accused that are evidence, and not the statements of the deceased. [And, therefore, if the injured party, prior to his death, is confronted with the defendant, and accuse him of having committed the act, and the defendant immediately denies it, the statements of the deceased are to be wholly disregarded.]" The court gave the first part of this request, and refused the portion within brackets. The error by the omission complained of has no foundation. The court had already told the jury that the statement of the injured party was incompetent and inadmissible, but that the conduct of the defendant was a proper subject for their consideration. The omitted portion would have added nothing to the force of what had been said. It must be remembered that whatever influence the interview between Scherbring and the defendant had was brought about by the latter himself. He demanded that he be taken to the hospital, and insisted upon the meeting. He went there to be exonerated, and must be satisfied to have the jury consider what actually took place. Fourth request. This request called the attention of the jury to the personal appearance and demeanor of the defendant during the trial. It was based upon the remarks of Mr. Burrill (Circ. Ev. 502) on "Demeanor during Trial. No precedent for such a charge is furnished. The court's charge is based upon the evidence, which is the testimony delivered by the witnesses, and of which the person of the accused is no part. Some impression, favorable or unfavorable, may unavoidably reach the jury box from the appearance and conduct of the defendant in a criminal trial, but it would be a most dangerous precedent for the court to comment upon it; and the idea that it is to be considered at all comes from a time when a prisoner was put in a box by himself, without counsel, and at the mercy of the court, who in "summing up" could rule the jury as he willed. Fifth request: "If you believe that any witness has sworn falsely in this case in regard to any matter material to the issue, you should distrust all of his evidence; and if you believe the witness has willfully sworn falsely in a matter material to the issues in this case you are warranted in disregarding his testimony altogether." The first proposition is not the law; the jury must believe the testimony to have been willfully false. The second one the court gave, in substance, with the addition: "Except so far as it may be corroborated by other evidence in the case. This is a frequent qualification, and is not, we think, objectionable. In Brown v. Railroad Co., 66 Mo. 588, which is cited by appellant against the use of the qualifying phrase, the lower court had said that if a witness had willfully sworn falsely all his evidence might be disregarded, "unless such as to some part" should be corroborated, and the supreme court considered that the language thus used told the jury to give credit to all the testimony of the perjured witness, if he was found corroborated as to part. This was a very different thing from crediting such part of his testimony as was corroborated, as is the case before us. With the latter proposition the Missouri court found no fault. We find no error in the record as presented, and have now to pass upon the last objection, viz., that the evidence did not justify the verdict. For the reason that we shall make a final disposition of this case at this time, we shall go into a more extensive examination of the facts than we did at the hearing of the former appeal. The case of the state showed nothing of the previous relations of the appellant and the deceased, Scherbring, but commenced abruptly at a small saloon 66 near the southerly end of Grant street bridge, Seattle, at about sundown of July 14, 1887. The two men arrived there, walking from Seattle, and had two or three glasses of beer, in which they were joined by some other persons. After drinking once or twice, they went further along the bridge, and back again, sat down in front of the saloon a few minutes, had more beer, and then left together, to return to the city. During all the time they were about the saloon their appearance was friendly, and there was no suggestion that either of them was any the worse for his drinking. No person testified who saw them after leaving the saloon, except those who looked after them from the saloon, and their observation was merely casual. From that on the state's evidence lost sight of the appellant until the afternoon of July 15th, when three witnesses testified to having seen him on Madison street, in the suburbs of Seattle, and two of them talked with him. He asked for and was given something to eat, and said he had just come from California on the steamer. The next time he appeared was when he was arrested by officers at Slaughter, in the forenoon of the 16th, as he was walking away from Seattle, along the railroad track, having covered some 20 miles since the previous evening, if it was true that he was then on Madison street. The Grant street bridge was a wooden thoroughfare, one and a half or two miles in length, over the tide flats in the south part of Seattle, generally parallel to, and not far from, the shore. In several places gangways" ran out from the shore to the bridge. At a point on the bridge, between the middle and the north end, not much earlier than half past 9 o'clock, and perhaps after 10, witnesses who lived along the shore heard two shots fired in quick succession. One witness heard some one cry out, "Murder! Help!" Another: "Oh Lord! I'm shot!" Another: "Be quiet; it will all be over in a minute." It was dark, so that a man could not be seen distinctly more than a few feet. The witnesses ran rapidly towards the sounds of the shots and cries, and reached the place whence they appeared to come in two or three minutes. There they found Scherbring leaning over and clinging to the rail of the bridge, with a bullet hole about the size of a large lead pencil in his head just back of the left ear, and blood on his face and clothing. No other person whatever was seen about there, until after the wounded man had been taken away. Two days later, on the evening of the 16th, Scherbring died of his wounds; for, although the ball did not penetrate within the cavity of the skuli, it so shattered its inner wall that the resulting inflammation caused death. Under the rules admitting res gestæ, what witnesses said to him. and what Scherbring said to them, when they found him on the bridge, was admit ted in evidence. He was weak, and staggered so that he fell into the arms of the witness who first reached him. He was asked who shot him, but he either could not or would not tell. Just what he did say it was impossible to determine, as each witness related it a little diferently. He asked if witnesses thought he was much hurt, and declared that he would soon be all right. As to who had shot him, he said he didn't know; that it was a large man, with dark clothes on. One of two things is absolutely certain at this point: If appellant fired the shots, Scherbring was entirely unconscious of what he was doing or saying, or he purposely and with wonderful self-command sought to conceal the name of his assailant. As far as the testimony revealed, he did not say to any one that Freidrich was the man until the afternoon of the 16th, when they were brought face to face, at Providence Hospital. The officers pursued Freidrich solely upon the information that the two men had had been last seen together on the bridge. As he came walking on the railroad track towards Slaughter on the morning of the 16th the officer who made the arrest spoke to and entered into conversation with him. He first said he was going to Payallup, afterwards that he was going to Tacoma. He had some friends over there, and walked in preference to taking a train, as he had plenty of time, and liked the scenery. He said he was looking out for a location to start a shoe shop. The officer pretended to have been away from Seattle some time, and asked him the news, but he replied that he knew of none. He seemed anxious to proceed on his way, but yielded to an in. vitation to stop for dinner, on the promise of company down the road. The officer told him that he had seen in the morning paper that a murder had been committed in Seattle, but Freidrich had not heard of it. Afterwards he said: "Yes, the man who was killed was a good friend of mine;" and, being led on, he stated that they got into a boat in the morning, and had a few bottles of beer with them, and rowed over across the sound, or out into the bay, and were out there quite a while, and came back to his shop, and from there they went to the head of the bay to a saloon, where they stayed until along in the evening, when he told his friend Scherbring that he had to go into town to attend a meeting of the Turnverein, and wanted him to go with him; but the latter refused, and remained behind. That he himself went on to the meeting, but only got as far as the door, and, finding himself late, did not go in; and that somebody passing told him a man had been shot, but did not say who it was. He was then arrested, and when told what for, threw himself back in his seat, and laughed, and said: "When I see my friend Scherbring that will be all right. He was entirely cool, and manifested no concern. He was taken to Seattle on a locomotive, and while thus riding was asked by the sheriff where he had stopped on the night of the 14th, to which he answered: "I slept in my room." Sheriff: "Well, are you in the habit of making up your bed?" Freidrich: "No, I did not make up my bed. Mrs. De Coloski makes up my bed." (Mrs. De Coloski, who was his landlady, testified that Scherbring had slept with him on the night of the 13th, but that neither of them was there on the night of the 14th, and the bed was not disturbed.) Sheriff: "Have you an attorney?" Freidrich: "No, I don't want any attorney. Bring me before my friend Scherbring, and be will say that I never shot him." Being taken to the hospital, Freidrich walked straight up to the bed, reached out his haud, and said: "Why, Scherbring, my boy, what is the matter?" Scherbring turned over towards the wall, and would not take his hand. The prosecuting attorney was present, and asked Scherbring if he was conscious of what was going on in the room, and he said he was. "Do you know who shot you?" "I do." "Who was it?" "That man there is the man that shot me," said Scherbring, turning over and pointing his finger at Freidrich. Immediately Freidrich exclaimed: "Oh, Julius! How can you say such a thing? You know I had nothing to do with it." Scherbring further stated that as they were coming along the bridge he was a few steps in advance of Freidrich, and for a few moments neither of them had spoken. The first thing he knew there was a shot, and he dropped to the floor, and lost consciousness. When he recovered Freidrich had his knee on his breast, and a hand in his pocket; and when he moved Freidrich said: "Scherbring, my boy, keep quiet; it will all be over in a moment." Then another shot was fired, and he did not remember any more. Throughout this narration Freidrich protested that it was not true, and, if correct | principle is to control, we must lay entirely out of the case all that Scherbring said. He was not on oath, though the state had full opportunity to so qualify him. His condition was such that the prosecuting attorney had to inquire of him if he was conscious at all. The attending physician says, concerning the interview: "He was suffering so bad that every once in a while I had to ask that the examination would be stopped for a moment, to give him relief; and I gave him stimulants occasionally to stand this trial as well as possib'e with a clear mind; and after it was over Scherbring lost his strength very quick, and inside of a couple of hours he died, after suffering very bad from inflammation of the brain, and from a very severe headache." Who knows, in consideration of his continual denials throughout more than 36 hours that he knew who shot him, and of the frequent pressure brought upon him to say who did it, and to say that Freidrich did it, but that in his last moments, excited by stimulants, and consumed by the fever in his brain, he may have declared what never happened. Besides which, as the court charged the jury, what Scherbring said was not in evidence as a statement of facts at all, but only to show the conduct of the accused man in the face of the charge. Freidrich, in his defense, showed that he and Scherbring had been fast friends for two years; that they had spent the day together, because Scherbring was going away, Freidrich closing his shoe shop for that purpose; that they took supper together; that he did propose attending a singing society's meeting just before they started away from Seattle, after supper, and after taking a glass of beer with a friend; and that on the 12th he had changed $40 in silver for gold, which be had given to Scherbring, and which he claimed was a loan to Scherbring of that amount. To account for his sudden departure from Seattle he claimed to have met a woman on the street, after he had left Scherbring on the bridge, and passed by the Turnverein Hall, and that she persuaded him to pass the night with her at her room. In the morning he got his breakfast at a restaurant,-not his regular boarding place,-went to his shop for a few minutes, and then, not feeling like work that day, started off south along the railroad, intending to get orders for boots from loggers who were his customers,-a thing he had never done before. He took several orders during the day, and at night stopped by a log fire which he found at the roadside. The next morning he walked to Kent, where he breakfasted, and saw a Seattle paper, in which he noticed a headline about the shooting of some one, but he did not read the account, and did not know who was shot, until told by the officer at Slaughter. In none of these matters was he corroborated, though he claimed that a memorandum book which was taken from him by the sheriff contained the orders he had taken for boots. From the evidence thus produced to them we think the jury were warranted in finding that Freidrich fired the shot which resulted in Scherbring's death, and, had there been any suggestion of motive, plan, or deliberation in the case, we might, in deference to the admitted province of the jury, be constrained to sustain its verdict as rendered. But the law commits to this court the power to affirm, reverse, or modify any judgment appealed from, and to direct the proper judgment to be entered, (Code Proc. § 1429;) and in thus committing a power it also imposes the duty to exercise it conscientiously, as the facts may appear. In this case, when we have said that it is proven beyond a reasonable doubt that Freidrich did the shooting, and fled with a design of escaping from his guilty knowledge that he had committed a crime, all is said that can be said of the state's case as revealed by the evidence. It is a case singularly without the proof of extrinsic circumstances tending to show what could have been the inducement in his mind to shoot down the man whom he called, and who called him, his best friend. Going beyond the pale of the legitimate evidence in the case even, and taking Scherbring's declaration that he felt a hand in his pocket, yet there is not a word to show that he was robbed or lost any money, papers, or other valuables. Then, again, Scherbring's mysterious reticence and unwillingness to say that Freidrich had shot lim, when, if the state's theory be accepted, it was a case of merciless assassination, makes it difficult of belief that such was really the crime. The feeling is irresistible that after two trials of the appellant the whole truth of the case has not been made to appear. There may have been a quarrel, with no one knows what attendant cîrcumstances of aggression or provocation upon one side or the other. The homicide as proven stands as an unlawful killing with a deadly weapon, with no circumstances proven by the state or the defense to qualify the act. From the character of the weapon malice is implied, and the common-law crime of murder is complete. 2 Thomp. Trials, § 2531. But the measure of murder in the first degree is not filled up. 1 Whart. Crim. Law, § 392, says: "Wherever the killing is with a deadly weapon, and there is evidence aliunde showing that this was intentionally, deliberately, and unjustifiably used, then the inference is that of an intent to take life, and the case is murder in the first degree. The burden, however, of proving this is on the prosecution. Stripping the case of these incidents, however, and supposing that simply a malicious killing be proved, then the inference is of murder in the second degree." We have the crime of murder in two degrees by statute, as have the most of the states, and Wharton's comments are addressed to these statutes. See cases cited in 1 Whart. Crim. Law, § 392, and especially O'Mara v. Com., 75 Pa. St. 425; State v. Wieners, 66 Mo. 13, 25; State v. Curtis, 70 Mo. 594; State v. Robinson, 73 Mo. 306. In McAllister v. Territory, 1 Wash. T. 360, the court said: "The burden is on the territory to make out every material allegation in the indictment beyond all reasonable doubt. And we are satisfied that, so far as the facts attending the killing are concerned, at least so far as those facts are included in the res gestæ, that the burden of proof never shifts." From these authorities, and hundreds of others that might be cited, it is clear that to authorize a conviction of murder in the first degree the jury must have before them, in the case, whether produced by the state or the defense, facts which put it beyond a reasonable doubt that the murder was committed "purposely and of deliberate and premeditated malice, unless done in the perpetration or attempt to perpetrate rape, arson, robbery, or burglary, or by administering poison, or causing the same to be done." Of such facts, as we view the evidence for the second time, and after many perusals, we find nothing. The distinction made between murder of the first and second degrees is a fine one, and it is not to be wondered at that juries sometimes fail to appreciate it; but the law makes it, and the law is master of us all. The conclusion of the court is that the judgment of death rendered in the superior court be set aside and vacated, but that the verdict of the jury stand, and that the cause be remanded to the superior court of King county, with instructions to enter a new judgment of murder in the second degree against the appellant, and proceed thereon in accordance with law. ANDERS, C. J., and DUNBAR, J., concur. LEWIS et al. v. PUGET SOUND S. R. Co. A person who, with knowledge that a certain trestle is used as a switch track, gets upon the planking at the ends of the ties immediately upon the passage of a switch engine, and walks on down in the direction the engine has taken until he reaches a place where he could have saved himself on either side of the track, is guilty of negligence in attempting to cross to the opposite side as the engine is coming back; and this is not excused by the fact that no signal was given. Appeal from superior court, King county: R. OSBORN, Judge. This was an action brought by Roseline Amy Lewis and Harry Lewis, a minor, by his guardian ad litem, Roseline Amy Lewis, against the Puget Sound Shore Railroad Company, to recover for personal injuries sustained by Elijah J. Lewis, deceased. Judgment for plaintiffs. fendant appeals. Reversed. De White & Munday, for appellant. Wiley, Hale & Scott, for respondents. * # * STILES, J. If we adopt fully the position of the respondents, in stating the law of contributory negligence, still it is out of the question to sustain the judgment entered on the verdict of the jury in this case. One of the cases cited in support of the judgment is Railway Co. v. Hill, 117 Ind. 56, 18 N. E. Rep. 461, and in that case is a strongly approved quotation from Beach, Contrib. Neg. § 63, where the rule as to persons crossing a railroad track is thus stated: "When one approaches a point upon the highway where a railway track is crossed upon the same level, it is his plain duty to proceed with caution; and if he attempts to cross the track, either on foot or in a vehicle of any description, he must exercise in so doing what the law regards as ordinary care under the circumstances. He must assume that there is danger, and act with ordinary prudence and circumspection upon that assumption. * * * The law defines precisely what the terms for dinary care under the circumstances' shall mean in these cases. In the progress of the law in this behalf the question is no longer, as a rule, a question for the jury. The quantum of care is exactly prescribed as matter of law. In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track. A multitude of decisions of all the courts enforce this reasonable rule. * If a traveler, by looking, could have seen an approaching train in time to escape, it will be presumed, in case he is injured by collision, either that he did not look, or, if he did look, that he did not heed what he saw. Such conduct is negligence per se. The deceased, Elijah J. Lewis, had his place of business fronting upon Railroad street, in the city of Seattle. The appellant's track, coming from the south, lay diagonally across Railroad street, the easterly side line of which it left at about Washington street, and ran thence to and beyond Yesler avenue, on its private right of way. The streets and railroad tracks thereabout were all built on piling over the shoal waters of the bay. On the west side of the track, between Washington street and Yesler avenue, the space to the dock line was planked over; but on the east side and between the rails there was no planking until a point was reached about 100 feet south of Yesler avenue, whence it was planked north to the ave nue, and east several feet to certain buildings. Where there was no planking the track was 8 or 10 feet above the mud flat below; and over this space the only footway, excepting that afforded by the ties, was made by laying down a row of loose boards on the eastern ends of the ties, outside of the rail. Just at the south side of Yesler avenue there was a switch connecting with the tracks of the Seattle, Lake Shore & Eastern Railway further to the north. People were, with the knowledge of the railroad company, accustomed to make pretty much all of the planked spaces about there public thoroughfares, and there is no doubt that the company was bound to adhere to all the well-known rules requiring extraordinary care in the operation of railroad trains through populous localities, and along parts of their own grounds which it is known that the public is in the habit of treating as highways. On Sunday, November 3, 1889, a clear, bright day, a switching engine came from the south, pushing several freight cars, the head of the engine being to the north, and next to the first car ahead of it. The train traversed the 240 feet between Washington street and Yesler avenue, and, crossing the avenue, set out two cars on the Seattle, Lake Shore & Eastern track. To do this the engine had to go quite to the north side of Yesler avenue, which is 70 feet wide. Another purpose of the switching was to leave the next two cars on appellant's own track north of the avenue, so that the train was at once backed to the switch, to clear which it had to move south about 250 feet. In backing, at a place about 170 feet south of the tail end of the engine when it started, it ran over deceased, and caused the injuries from which he died. For the purposes of this case, it will be conceded that no bell was rung or whistle blown warning deceased that the train was about to back. The usual testimony appears, viz., that of the engineer and fireman, that the bell was rung, and that of several other persons that they did not hear it. The witnesses upon opposite sides totally disagree as to how the accident happened. Those for the respondents, if there is any difference, make a rather less favorable case to support the judgment than the other side. They say that, as soon as the train passed Washington street going north, the deceased and several other men started along behind it towards Yesler avenue, walking on the loose boards at the east end of the ties; and when the engine started back south the other men, who were ahead of deceased, stepped across the track to the planks on the west, while he kept on until the engine was so close to him that in attempting to cross he slipped and fell, and the wheels caught him. It is an undisputed fact, however, that when the deceased fell he lay at a point beyond the end of the loose boards, and upon the planking where it extended south from Yesler avenue; and this either lends color |