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have been secured by a subpoena, and he compelled under oath to develop from his notes any testimony taken on the preliminary examination. We conclude, therefore, that the law does not forbid a trial before the filing of this transcript, nor was, in this case, the failure so to file an error working substantial injury to the rights of the defendant.

The second matter presented is, that the court permitted certain witnesses to testify in the case over the objection of the defendant, when their names were not endorsed on the indictment nor included in a list furnished the defendant by the prosecuting attorney; and defendant had no knowledge that they would be called to testify until the trial had begun. It appears that on October 2, when the case was set for trial, the defendant's counsel, in open court, requested the district attorney to furnish them before the trial began with the names of all witnesses to be called by the prosecution on the trial, stating that they did not claim it as a matter of right but of favor, and thought it was only fair to the defendant that he should be so advised. Thereupon the district attorney stated that he was unaware of any witnesses other than those whose names were on the back of the indictment, excepting four whom he then named, but promised that if he ascertained there were any others he would give information in regard to them as soon as received; on the 8th of October he furnished the defendant with a list of other witnesses; on the 11th, the day after the trial commenced, he notified the defendant of still another witness, who was in fact not called until the 15th, and four days before the defence rested.

By § 1033 Rev. Stat., the defendant in a capital case is entitled to have delivered to him at least two entire days before the trial a copy of the indictment and a list of the witnesses to be produced on the trial. Logan v. United States, 144 U. S. 263, 304. But this section applies to the Circuit and District Courts of the United States, and does not control the practice and procedure of the courts of Utah, which are regulated by the statutes of that Territory. This question was fully considered in Hornbuckle v. Toombs, 18 Wall. 648, and it was held, overruling prior decisions, that the pleadings and procedure of

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the territorial courts, as well as their respective jurisdictions, were intended by Congress to be left to the legislative action of the territorial assemblies and to the regulations which might be adopted by the courts themselves. See also Clinton v. Englebrecht, 13 Wall. 434, in which it was held that the selection of jurors in territorial courts was to be made in conformity to the territorial statutes; Good v. Martin, 95 U. S. 90, in which a like ruling was made as to the competency of witnesses; Reynolds v. United States, 98 U. S. 145, where the same rule was applied to the impanelling of grand jurors and the number of jurors; also Miles v. United States, 103 U. S. 304, a case coming from the Territory of Utah, in which the same doctrine was announced with regard to the mode of challenging petit jurors. Page v. Burnstine, 102 U. S. 664, 668.

Referring, therefore, to the territorial statutes, there is none which directs that a list of the witnesses be furnished to the defendant. Section 4925, Comp. Laws Utah, requires that the names of witnesses examined before the grand jury be endorsed on the indictment before it is presented. There is no pretence that this direction was not complied with. In the absence of some statutory provision there is no irregularity in calling a witness whose name does not appear on the back of the indictment or has not been furnished to the defendant before the trial. The action of counsel for defendant in asking that as a favor the names be furnished them indicates their understanding of the extent of defendant's right, and, so far as appears, the district attorney fully complied with this request and furnished the names as fast as he was advised that they would be called. There is no suggestion that the defendant was surprised by the calling of any witness or the testimony that he gave. This allegation of error, therefore, is without foundation.

The third assignment is that the court erred in overruling defendant's challenges for cause directed against four jurors on the ground that on the voir dire they showed themselves incompetent to serve. These jurors testified substantially that at the time of the homicide they had read accounts thereof in the newspaper, and that some impression had been formed in

Opinion of the Court.

their minds from such reading, but each stated that he could lay aside any such impression and could try the case fairly and impartially upon the evidence presented. Section 5024, Compiled Laws of Utah, reads that "no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety: Provided, It appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters submitted to him."

The testimony of these jurors clearly placed them within the terms of this statute, and there was no error in overruling the challenges. Reynolds v. United States, 98 U. S. 145; Hopt v. Utah, 120 U. S. 430; Spies v. Illinois, 123 U. S. 131; Connors v. United States, 158 U. S. 408.

The defendant was a saloon keeper, and one of the jurors also said that he had a prejudice against that business; that he did not know the defendant and had no prejudice against him individually, but simply against the business of saloon keeping; that such prejudice would not influence him in any way in passing upon the guilt or innocence of the defendant, but that his occupation, like that, of any other witness, might affect the credit he would give to his testimony. But the charge against the defendant, the matter to be tried, had no reference to the occupation in which he was engaged, and, therefore, a prejudice against such occupation is entirely immaterial. In Spies v. Illinois, 123 U. S. 131, a juror testified to a decided prejudice against socialists and communists, as the defendants were said to be, but as the charge to be tried was murder, and there was no prejudice against the defendants as individuals, he was accepted and sworn as a juror. In the case at bar the juror was, however, excused by the defendant before all his peremptory challenges were exhausted. Hopt v. Utah, 120 U. S. 430; Hayes v. Missouri, 120 U. S. 68, 71.

A fourth assignment is that the court erred in admitting irrelevant, incompetent, and immaterial testimony. In order to appreciate this assignment of error it becomes necessary to

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state briefly the circumstances of the homicide. The defendant owned a brewery, and adjoining it kept a saloon; he had for some time prior to the homicide been sleeping in the saloon, while his wife and their child a girl of about nine years of age-slept at the dwelling-house a short distance away. Somewhere about one o'clock in the morning of Tuesday, May 1, 1894, the defendant awakened one Jacob Lauenberger, and informed him that he had found his wife lying dead, with her throat cut. Upon examination it appeared that the head had been almost severed from the body by a wound made with some sharp instrument, probably not a pocket-knife or a razor, but some large knife or similar instrument. The deceased was lying within three to five feet of the southeast corner of the saloon. About thirty feet further east was a pool of blood, with evidences of a struggle, and from that point to where the body lay there were marks of blood. The defendant was in or near the saloon during the night until he went with the witness Lauenberger for a physician, and the saloon was lighted during the whole of the night. There was blood upon his hands and upon his clothing. When he awakened Lauenberger, and thereafter when going for a physician, and after his return, he manifested grief at the loss of his wife. There was evidence of ill treatment by the defendant of his wife for a number of years, though this was denied by him, and his denial sustained by other testimony. On the Sunday evening preceding the murder the defendant and his wife had quarrelled. The witness Lauenberger called them into his house, and, according to his testimony and that of his wife, the defendant while there slapped his wife in the face, and ordered her to go home, and she refused to go, saying that if she went home the defendant would kill her that night. The last time the deceased was seen by any witness other than the defendant was about ten o'clock Monday evening, when she was sitting outside the defendant's saloon. The night was dark.

Now the most of the testimony objected to was introduced for the purpose of showing ill treatment by defendant of deceased, and a state of bitter feeling between them. This, of course, bears on the question of motive, and tends to rebut the

Opinion of the Court.

presumed improbability of a husband murdering his wife. The witnesses testified to hearing the deceased scream at several times; to seeing her with black eyes and a bruised face; to her eyes looking red; to her crying on several occasions, and appearing alarmed and scared, and to bruises and discolorations of her body. The objection was that these witnesses did not connect the defendant with these appearances, or testify that he was the cause of them. It is true these matters do not constitute direct evidence of ill treatment or a long-continued quarrel, but they are circumstances which, taken in connection with the testimony of what was seen and heard passing between the defendant and his wife, were fairly to be considered by the jury in determining the truth in respect thereto. Whether the relations between the defendant and his wife were friendly or the reverse, was to be settled, not by direct or positive but by circumstantial evidence, and any circumstance which tended to throw light thereon might fairly be admitted in evidence before the jury. Alexander v. United States, 138 U. S. 353; Holmes v. Goldsmith, 147 U. S. 150; Moore v. United States, 150 U. S. 57. In the second of these cases, page 164, this court observed: "As has been frequently said, great latitude is allowed in the reception of circumstantial evidence, the aid of which is constantly required, and, therefore, where direct evidence of the fact is wanting, the more the jury can see of the surrounding facts and circumstances the more correct their judgment is likely to be." Another witness, after stating that he knew the defendant. prior to the homicide, was permitted to testify that he was "a strong, powerful man." While this was not very material, as the defendant was in the presence of the jury, yet, in view of the medical testimony that the wound must have been caused by a powerful blow, we cannot say that it was either incompetent or immaterial, or that the court erred in admitting it.

There was testimony that after the defendant had returned with Lauenberger and the physician to his saloon a stranger came in and bought some whiskey. This was before daylight on the morning of Tuesday. The physician testified that he