The declarations admitted in evidence in the case at bar, were a mere narration of a part of the affray which occurred a half or three quarters of an hour before, after all danger was over, after the occurrence had entirely ceased, while the defendant was under arrest, and when the deceased had been among his friends during the whole time that had elapsed; and had a tendency to fix the responsibility for the affray upon the defendant.

The learned justice in the case of Insurance Company v. Moseley, supra, says: "The tendency of recent adjudications, is to extend rather than narrow the scope of the doctrine of res gestae." We have failed to discover such tendency after an examination of all the cases within our reach which discuss the principle. If it does exist, it indicates a tendency in the courts to leave the field properly occupied by the judiciary, and enter that of the law-making power; this is always a dangerous experiment. If evidence of this character is proper and necessary, it is the duty of the legislature to direct that it be admitted.

The rules of evidence have been crystalized from the experience, and the best thought of centuries. These rules become clearer, their boundaries better defined, as civilization advances, and as the courts improve in the administration of justice. It is unsafe for the courts to extend or violate them.

We think the evidence inadmissible, and that it had a tendency to injure the cause of the defendant.

The second error assigned is the definition given to the term "reasonable doubt" in the five instructions given by the court.

It is as follows: "A reasonable doubt is not a mere possible. doubt, nor is it a captious or imaginary doubt, but it is such a doubt as a prudent and reasonable man would be likely to act upon in determining important affairs of life."

While the court do not say that this is the best definition that could be given, it is substantially the one that has been approved by the courts in a number of cases: See Arnold v. The State, 23 Ind., 170; State v. Nash, 7 Iowa, 347; State v. Ostrander, 18 Iowa, 435, 458.

The following definition has been given with approval: "A reasonable doubt is one arising from a candid and impartial investigation of all the evidence and such as in the graver transactions of life would cause a reasonable and prudent man to hesitate and pause:" May v. People, 60 Ill., 119; Miller v. People, 39 Ill., 467.

This definition is no stronger than the one given in the case at bar, as the word graver is no stronger than the word important. The last named definition is open to the same objection that is urged to the instruction given in this cause, it requires such a preponderance of evidence as would convince a reasonable man in the graver transactions of life.

The definition given by Mr. chief justice Shaw in the case of the Commonwealth v. Webster, 5 Cushing, 320, and which the supreme court of California in the case of the People v. Strong, 30 Califor

nia, 155, say is probably the best definition ever given to the words "reasonable doubt," is as follows: "The evidence must establish the truth of the fact to a reasonable and moral certainty"—the word moral, in that connection, meaning nothing more than intellectual or mental, is therefore the same as reasonable. The statement would, therefore, be, "the evidence must establish the truth of the fact to be a reasonable certainty." This is a mere synonym for the term "beyond a reasonable doubt." The learned chief justice goes on to say that it is a certainty that convinces and directs the understanding, satisfies the reason and judgment of those who are bound to act conscientiously upon it.

Does not a strong preponderance of evidence convince the understanding, satisfy the reason and the judgment in many, if not all, the most important affairs of life? The understanding, the reason and the judgment are substantially synonymous terms in the sense in which they are here used.

This discussion simply demonstrates the futility of the efforts to define the term "reasonable doubt." The best efforts in this direction are those which use words most nearly synonymous with the term itself.

Perhaps as good a definition as any, possibly the best, would be merely negative in its character and one most easily understood by the conscientious juror, such as; "It is not a mere imaginary doubt, but must be a doubt which fairly arises from the evidence and compels the conscientious juror to say, 'I am not satisfied from the evidence that the defendant is guilty or that the fact in question is

true.'

We think that the definition given by the court below, being substantially approved by the courts, was not erroneous.

The third assignment of error is: The court erred in striking out the following words in the tenth instruction asked by defendant, to wit: "and pursue his adversary."

It is a familiar principle that all instructions must be adapted to, and founded upon the evidence in the case on trial.

After a careful examination of the evidence in the transcript, and particularly that referred to by the counsel for the defendant, upon which this instruction is based, we are unable to say that there is any evidence that the defendant pursued the deceased at all; defendant himself swears "that after the commencement of the affray," he backed up a little after each shot.

There appearing to be no evidence of any pursuit by the defendant, the modification was proper.

Judgment reversed and cause remanded for a new trial.

BUCK, J., concurred.

BRODERICK, J., having tried the case in the lower court, rendered no opinion.

GUTHRIE ET AL. v. PHELAN ET AL.

Filed February 17, 1885.

RECORD ON APPEAL FROM JUDGMENT.-On appeal from a judgment, without a statement, nothing belongs to the record except the judgment roll, and no question arising outside the roll can be considered.

EXCEPTIONS TAKEN AT THE TRIAL.-Exceptions taken at the trial and settled as provided in sections 405 and 406 of the Civil Practice Act, form part of the judgment roll, and constitute part of the record on appeal from the judgment.

ISSUES OF LAW AND FACT. When there is both a demurrer and answer to the same complaint, raising both an issue of law and fact, the issue of law should be first disposed of.

SAME. When there are both issues of law and fact, and the cause is brought on for trial, and a judgment rendered, the presumption will be indulged on appeal that the issue of law was previously disposed of by an order overruling the demurrer.

EXCEPTIONS DEEMED TO HAVE BEEN TAKEN.-The exceptions which by section four hundred and three of the Practice Act, the adverse party is deemed to have taken, have the same force and effect in the conduct of the action as other exceptions, and cannot be considered on appeal without being incorporated into a bill of exceptions and made a part of the judgment roll. Held, When defendants in the trial court question the sufficiency of the complaint by general demurrer and the demurrer is overruled, and the defendants waive their right to save the question so raised and decided, by a bill of exceptions, and appeal from the judgment, another and independent demurrer, raising the same question, cannot be interposed in the supreme court.

APPEAL from a judgment for the plaintiff in the third judicia district court of Oneida county. The opinion states the facts. Prickett & Lamb, for the appellants.

Smith & McCollum, for the respondents.

BY THE COURT, BRODERICK, J., BUCK, J., AND MORGAN, C. J., CONCURRING. This action was commenced in the court below on the eighteenth day of December, 1882, upon an open account, for goods, wares and merchandise, and also upon a promissory note. At the time of the commencement of the action the promissory note was not due, and did not become due until the first day of January, 1883. When the action was commenced the plaintiffs caused an attachment to be issued, and certain goods of the defendants were levied upon.

On the twenty-seventh day of December, 1882, the defendants, by their attorneys, appeared and demurred to the complaint. The record brought here does not notice any ruling or order upon the demurrer. On the fourth day of January, 1883, the plaintiff filed a supplemental complaint, which omitted the first count in the original complaint, and counted alone upon the promissory note. On the twenty-sixth day of March, 1883, the defendants filed a general demurrer to the complaint, which was denominated "amended demurrer." The record before us is silent as to the disposition of this demurrer. On the twenty-first day of May, 1883, the defendants filed their answer to the complaint, and on the twenty-fifth day of the same month a judgment was entered against the defendants upon the promissory note. No bill of exceptions was taken, and the cause is here upon the judgment roll, which is imperfect in almost every part. Evidently it is not a complete transcript of all the proceedings had in the case, and the clerk does not so certify,. From an inspection of the record, it is impossible to know what proceedings were had in

No. 65-4.

the court below. But the parties, by their counsel, have appeared and agreed and submitted certain questions for our determination. The appellants interpose a demurrer in this court, and thereby question the sufficiency of the complaint to sustain the judgment and contend for the correctness of their practice. While it is true that in some cases an objection to the sufficiency of the complaint can be raised for the first time in this court, yet it is not a practice that can be commended in cases where all parties appeared and had their day in the trial court. The public has an interest in all litigation, and when the defendant is in court, the time of the court should not be consumed in the trial of a cause where an objection by the defendant would terminate all proceedings, and save to parties and to the public the time and expense of litigation.

The question, however, in this case is not whether the appellants can object to the sufficiency of the complaint for the first time in this court, but whether they could raise their objection by demurrer in the court below, have it disposed of there, waive their right to bring the question here by a bill of exceptions, appeal from the judgment, and then interpose another, or new demurrer in this court. It will be observed that the "amended" demurrer was filed in the court below, after the filing of the supplemental complaint, and that the record brought here fails to disclose any order or decision upon it. The rule is, that when there is both a demurrer and answer to the same complaint raising both an issue of law and fact, the issue of law should be first disposed of. The statute so provides. When there are both issues of law and fact, and the cause is brought on for trial and the issues of fact are tried and a judgment rendered in the cause the presumption will be indulged, on appeal, that the issue of law was previously disposed of by an order overruling the demurrer, and in this case the presumption is strengthened by the absence of proof that the record is complete: Brooks v. Douglas, 32 Cal., 208; Abodie v. Carrillo, Id., 172. It has been settled by this court that when a party desires to have a decision or order of the district court reviewed by this court, he must except thereto when the ruling or decision is made, and he must also preserve and bring up such exceptions by bill of exceptions or statement: People v. Hunt, 1 Idaho, 433.

It has also been settled by this court, in Fox v. West, 1 Idaho, 782, that the exceptions which, by section 403 of the civil practice act, the adverse party is deemed to have taken, have the same force and effect in the conduct of the action as other exceptions taken during the trial, and cannot be considered on appeal without being incorporated into a bill of exceptions, and thus made a part of the judgment roll.

With these adjudications upon these important questions of practice, we are still satisfied. Sections 405 and 406 of the civil practice act provide the modes for preserving exceptions in the cases therein mentioned; and section 653 provides, that "On an appeal from a final judgment, the appellant must furnish the court with a

copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the case upon which the appellant relies.

The exceptions which the law deems to have been taken by the defendants to the orders in the court below overruling the demurrers, not having been preserved and brought here for review by a bill of exceptions, and assigned as error, these questions are conclusively settled, and cannot now be re-examined upon a new or independent objection raised by demurrer in this court.

Final judgment was entered in open court by an order of the court, and all intendments are in favor of its correct action. Judgment affirmed.

UPON a petition for a rehearing the following opinion was delivered, February 25, 1885:

BY THE COURT, BRODERICK, J., Buck, J., AND MORGAN, C. J., CONCURRING. Since announcing the opinion in this case, the appellants, by their counsel, submitted a petition for a rehearing, and we were referred to additional authorities bearing upon the questions decided. After a further examination, we concede that, independent of the decisions already made, the principal question decided in this case, namely, that the order overruling the demurrer and the exceptions thereto, should have been incorporated into a bill of exceptions to be available, would not be entirely free from doubt. The legislature may have intended, that on appeal from a judgment, everything in the transcript which belongs to it, or constitutes the judgment roll should be considered by the appellate court in reviewing the action of the trial court, whether there is a formed bill of exceptions or not, but the statute does not say so.

The authorities we find which have interpreted our statute, are against the constructions contended for by the appellants' counsel. Section 403 of our civil code, corresponds to section 647 of the California Practice Act.

In Nash v. Harris, 57 Cal., 242, 243, a construction was given to this section. The court say "when the motion was argued and decided in the lower court, the attorney of the appellant was present, and reserved no exception to the decision of the court.' But according to section 647 of the code of civil procedure, an appealable order is deemed to have been excepted to." "Yet a party who has excepted to a decision of a court, whether he excepted in person at the time the decision was made, or is deemed in law to have excepted, must, in statutory or reasonable time after his exception, avail himself of the right to reduce the same to writing, and take the steps required by law to have the bill of exceptions settled and signed by the judge."

In this territory the question seems to have first arisen in Ainslee v. World Printing Company, 1 Idaho, 641. In this case the court held that the verdict of the jury, although "deemed to have been excepted to," should have been incorporated into a bill of excep tions to make it available as an exception.