The opinion of the court was delivered by
Sarrord, J.:i tp.hi, -con The question first presented for the consideration of the court upon the argument of this case, was PracticaI1y decided in the ease of Thompson v. The State, 5 Kas., 159. But notwithstanding such previous determination, and owing to the importance of the question made, as bearing upon the case at bar, it has been deemed the duty of the court to review the whole matter, and with especial reference to the authorities cited and the arguments submitted by appellant’s counsel, as sustaining the positions-they have assumed. This has been carefully done; and as a result the members of the court remain satisfied as to the correctness of the decision referred to. "We also think that the record before us, showing as it does, that the witness on account of whose absence a continuance was asked for, was beyond the limits of the State, presents a proper case for the application of the same principles and practice, and the court was right in so holding.
2. jueoks — Not error for court service.86 lrom II. It is claimed that the court below erred in the excusing of certain persons who were summoned as jurors, and who might otherwise have been u : ° accepted by the parties, as triers in this case. We are of the opinion that this whole matter of excusing jurors from serving in any particular case, and upon application to be so excused, is, to a great extent^ within *219the discretion of the court having cognizance thereof; and unless such discretion has been abused, a reviewing court will not interfere. Such does not appear to have been the case in the present instance; and besides, the record shows that a jury acceptable to all was in fact obtained.
S, Witnesses— namef^Tnfwmation. III. It is further claimed that the court erred in permitting certain witnesses to testify on the part of the State whose names were not indorsed upon the in-x formation before the trial. It is the duty of _ . . _ , the prosecuting attorney to indorse upon such information the names of the witnesses known to Mm at the filing of the same; and with respect to the names of such other witnesses as may afterward become known to him, they are to be indorsed before the trial, under the direction of the court. Crim. Code, Gen. St. 1868, p. 831, § 67. These provisions are no doubt wise and salutary in their aims and effects. But as we understand it, there is nothing in them, or any other statute which would have the effect of prohibiting a witness from testifying whose name had become known to the prosecution after the commencement of the trial, and without his name being indorsed upon the information at all. Nor do we think that such a prohibition, if it did exist, would as a rule be calculated to promote j ustice. Cases, as is. well known to every practitioner at the bar, often occur, where during the progress of a trial, a necessity arises for the introduction of certain kinds of testimony which could not have been known or anticipated on the part of the prosecution before the commencement of the trial; as, for example, if it should be within the power of the prosecution, and justice should require, the impeachment of a witness sworn on the defense, and such witness had been hitherto entirely unknown to the prosecuting attor*220ney. In sueb a case the universal practice has been to call and examine witnesses without regard to their having been previously named and summoned, or even thought of. Other instances, in which the adoption of a rule such as is contended for might operate to defeat the ends of justice, will readily be suggested; and it is not seen how injustice would be likely to result from allow-1 ing such witnesses to be examined in any case. In this case, especially are we at a loss to see how the appellant has been prejudicially affected by the course pursued, relative to the matter under consideration.
4. Misconduct of ihejm-y. IV. It is further claimed that a new trial should have been granted in this case by reason of the remark of a juryman, made in open court and during the ° v 1 A progress of the trial, that “ he thought the watch sufficiently identified,” etc. Such conduct on the part of a juror was no doubt improper, and entirely1 uncalled for by the circumstances of the case. But it does not appear from the record, or otherwise, that it operated to the prejudice of the appellant. The remark of the juror did not show prior knowledge of the case, or • prejudice against the accused; nor did it indicate that the: juror was disposed to give the accused any other than a fair trial. Then, as to its having- any possible effect on the minds of the remaining eleven jurors, it is-not claimed or even intimated in the arguments of counsel. How, then, shall we say that the verdict was affected thereby? ■
*bVSde?ed0 together; nnd if «iwhole,10™’ V. But again it is claimed that the court below erred in the instructions to the jury in the following statement: “ Should you find defendant guilty of the murder of Jacob Barnett, without deliberation and premeditation, except in those• cases embraced in the statute-which T have read to *221yoü, the offense would be murder in the second degree.” The objection urged here, and to the instruction given at the instance of the county attorney, is, that the court assumed that a killing and murder had been committed. Considered apart from the rest of the charge, and unexplained, this objection might be held to rest upon substantial grounds; but taking the instructions named in connection with what goes before, and as explanatory of them,, we are of the opinion that the jury could not have been misled thereby. But we think the charges complained of could not have prejudiced the appellant, upon another ground, and that is, from the fact charged, and by the finding and verdict of the jury, they may be regarded, as it were, out of the case, so far as any influence they might have had upon the minds of the jury. The instructions named related to inferior degrees of homicide; while the accused was charged with, and convicted of, murder in the first degree.
6. inattention or . ing of jury, VI. Another point is urged for the appellant, relative to the.'giving of a charge by the court concerning the effect, as testimony, of the affidavit for a continuance, and which charge it is claimed was not heard or understood by all of the jury. We think that this objection is scarcely worthy of serious consideration. The very fact that the affidavit had been read and treated as the deposition of the absent witness, and as the law prescribes, and especially when taken in connection with the further fact, as shown in the record and admitted upon the argument, that the charge asked for was in fact read to the jury, would seem to show beyond a doubt that the court performed all that could be reasonably required in the premises, and that the jury must have *222fully understood what was the duty required at their, hands, as relating to the testimony referred to.
VII. The last point made by the appellant is, that the verdict is not sustained by sufficient evidence. This however, is not specially pressed, and we do not feel called upon to examine the testimony at length in this opinion. We will say, however, that after a careful reading of the entire record, we are of the opinion that the jury had the warrant of ample testimony to support their finding.
Some other questions are raised upon the record and argument of counsel, but they do not seem to call for any pai’ticular discussion. We think there is no error shown in this ease for which a reversal of the judgment should be had.
The judgment of the court below must be affirmed.
All the Justices concux’ring.