inal proceeding will vitiate the indictment, may be taken advantage of by plea in abatement. 2 Hale, P. C. 236. Any defect or irregularity appearing upon the face of the indictment or upon some matter of fact extrinsic of the record, may be cured by plea in abatement to quash. 1 Bishop, Crim. Proc. § 416. Upon a motion to quash an indictment, affidavits cannot be read to contradict or explain the allegations in the indictment without the consent of the district attorney, and common law proof is required to sustain or avoid the allegations in an indictment, unless by consent of the district attorney other proof is accepted. People v. Clews, 57 How. Pr. 245. "By consent, Bishop, in 1 In 1 Wharton's American Criminal Law, § 520, it is said: "It is error to quote on matters not apparent in the indictment, or caption, extrinsic matter being proper for the defense only on trial by jury." In a note to this section he says: however, extraneous matter may be brought in." Criminal Proceedings, § 763, admits this to be the general rule, but says: "The better doctrine is, that the court in its discretion may go outside of the indictment and record and try the whole question on affidavits." This is the substance of his text for what he styles the "better doctrine." He cites on supporting this "better doctrine," State v. Batchelor, 15 Mo. 207; State v. Wall, 15 Mo. 208; State v. Cain, 8 N. C. 352; Reg. v. Hearn, 4 Best & S. 94, 9 Cox, C. C. 433, 10 Jur. N. S. 724; United States v. Shepard, 1 Abb. U. S. 431. “I have examined these cases carefully and they do not authorize, in my opinion, or sustain the views of Mr. Bishop. Nor are they authority that affidavits can be received when objected to by the district attorney." Grosvenor, J., in People v. Clews, supra. There are various valid reasons which, when properly urged, will affect the quashing of an indictment. Thus uncertainty is frequently alleged as a reason (State v. Robinson, 29 N. H. 275; Murphy v. State, 106 Ind. 96; State v. Roach, 3 N. C. 352) or want of jurisdiction. State v. Benthall, 82 N. C. 664. And duplicity constitutes a sufficient cause. Knopf v. State, 84 Ind. 316. Under the New York Code of Criminal Procedure, & 323, this last objection is made available by demurrer. The rules relating to this subject of quashing an indictment filiate more particularly with practice methods and will receive no further notice in this connection. 256. When Evidence Introduced to Sustain Indictment may be Stricken out.-Where as it actually happens in many cases counsel offer certain irrelevant testimony under a promise to subsequently connect it with some vital fact in issue, and the court with this promise in view admits the evidence, it may be stricken out on motion, if the event discloses a failure to so connect it. Page v. Parker, 43 N. H. 363, 80 Am. Dec. 172. This rule, it must be borne in mind, is of doubtful propriety in criminal cases: "It must be apparent that such testimony, having once gone to the jury, its impression would necessarily, to some extent, remain in their minds, though they were ordered to discard it; and in a case of circumstantial evidence, it is next to impossible to say how far that impression exercised its influence in supplying any defect which might have arisen, or in solving any doubt in their minds on the general state of the evidence. A prosecuting officer in behalf of the state, in his zeal for a conviction, should never overlook the fact that the interests in society and the vindication of the law require at his hands as much the protection of the innocent as the conviction of the guilty. Evidence of this character, in cases involving life, should never be proposed by him, unless he is morally certain that he can make good his promise of connecting the defendant with the matter; there should be no room for doubt, where, he could have ascertained in advance the existence or non-existence of defendant's connection with the proposed evidence." Marshall v. State, 5 Tex. App. 273. A contrary doctrine is held in regard to civil cases. Grand Rapids Ice & C. Co. 53 Mich. 323. Joslin v. As sustaining the doctrine of Marshall v. State, supra, see State v. Daubert, 42 Mo. 242; Lafayette, B. & M. R. Co. v. Winslow, 66 Ill. 219; Blizzard v. Applegate, 77 Ind. 516; Hopt v. People, 114 U. S. 488, 29 L. ed. 183; Specht v. Howard, 83 U. S. 16 Wall. 564, 21 L. ed. 348; Davis v. Peveler, 65 Mo. 189; Goodnow v. Hill, 125 Mass. 589; Dillin v. People, 8 Mich. 369; Abbott, Trial Brief, 52, citing Mechelke v. Bramer, 59 Wis. 57; Piper v. White, 56 Pa. 90; Hall v. Patterson, 51 Pa. 289; Bilberry v. Mobley, 21 Ala. 277; Van Buren v. Wells, 19 Wend. 203; Abney v. Kingsland, 10 Ala. 355, 44 Am. Dec. 491; Carnes v. Platt, 15 Abb. Pr. N. S. 338, 4 Jones & S. 361, affirmed in 59 N. Y. 405. It frequently occurs in the trial of a cause civil or criminal, that a cunning and discriminating witness will attempt to fost upon the record an answer that is in no sense responsive to the question asked. Under such circumstances either party may object to the relevancy of the evidence and ask that it be stricken out. Such a request should always be granted. Greenman v. O'Connor, 25 Mich. 30; Lansing v. Coley, 13 Abb. Pr. 272; Kingsbury v. Moses, 45 N. H. 222. a. Examination of the Principle Affecting this Right to Exclude. We have elsewhere discussed the regulations in vogue regarding "offers to prove." It is perhaps unnecessary to add that where there is a failure to connect the testimony elicited with any of the issuable propositions of the case the testimony that has been received, upon the theory that it is relevant, should be stricken out when it appears that it sustains no legitimate relation to the proof required. Upon this subject there is suggestive comment in several California cases. At a recent trial in that state the defendant moved to strike out certain evidence. The court denied the motion upon the statement of the district attorney that he would show its relevancy by other evidence, but gave the defendant leave to renew his motion at a subsequent stage of the trial. The district attorney failed to introduce the other evidence, and the defendant renewed his motion, which was granted. It was argued that the court ought to have granted the motion in the first instance, and that when the evidence was finally stricken out, a caution concerning it should have been given to the jury. But it is usual and quite proper for a court to accept the statement of a reputable counsel, and upon the faith of such statement to temporarily refuse to strike out evidence that has been introduced, or to admit evidence offered. And if the defendant had desired any caution to the jury; he should have asked for it. The failure of a court to charge on any point usually proceeds from inadvertence, and the law casts upon the parties the duty of calling the judge's attention to the matter by a formal requcst for an instruction in relation to it. People v. Haun, 44 Cal. 96; People v. Rodundo, 44 Cal. 541; People v. Ah Wee, 48 Cal. 237; People v. Collins, 48 Cal. 277; Chamberlain v. Vance, 51 Cal. 84; Williams v. Hartford Ins. Co. 54 Cal. 449; People v. McLean, 84 Cal. 480. b. Views of Justice McGowan and Others. In further - vindication of the position taken of the text, I will refer to the case of State v. James, 34 S. C. 49, where the question involved was a subject of an extended review. As usual in cases of this character the counsel for the defense urged that the testimony complained of had been heard by the jury, that the evil effects inherent in erroneous evidence must have left a prejudicial impression which the mere instruction to disregard could not remove. Mr. Justice McGowan in refusing to grant a new trial on the ground of the admission of erroneous evidence, employs the following vigorous language: "We know that the law is very tender of human life, but considering the character of the testimony in connection with the whole case, we cannot hold that the bare circumstance of the evidence having been heard by the jury, should vitiate the whole proceeding. The jury was instructed not to consider it, and we must assume that they were what the law directs, sensible, intelligent men, entirely without bias. It is true, there are extreme cases in some of our sister states, in which the courts have gone very far in the opposite direction; but there is no such case in this state. As we think, the proper rule in such cases is laid down in 2 Graham & Waterman, New Trials (2d ed.) page 633, where, in commenting upon the case of Craddock v. Craddock, 3 Litt. (Ky.) 78, the learned author says: 'But so rigid a discipline would be injudicious. A more moderate and less exacting course has been found to answer every purpose. the progress of a warmly contested suit, exceptionable testimony will occasionally slip in, despite of the greatest care of the court and counsel. If, therefore, the bare circumstance that such evidence had gone to the jury, vitiated all the proceedings, scarcely a verdict in any case of importance would stand. So that it is, on the whole, the part of the wisdom for courts, to regard not so much the fact that improper evidence has been admitted, as the influence it may have had on the result. have had on the result. We may, then, lay it down as a settled rule, that if the verdict is undeniably correct, a new trial will not be granted, even in case of the admission of improper evidence."" Notwithstanding the general propriety of this view it must be borne in mind that striking out testimony that has been improperly allowed in a criminal case, and cautioning the jury not to be influenced by it, does not necessarily obviate its effects. People v. Wolcott, 51 Mich. 612. In Though the court know not, as seldom can it know, that the needful connecting proof will be forthcoming, may it not rest for awhile on the assertion of reputable counsel of his expectation that he can produce it? That a court may base its action upon the avowals and declared purposes of counsel is shown by Dunn v. People, 29 N. Y. 523. It seems to us that it would too much hamper the trial courts in their proceedings, if they are much restricted in the exercise of a discretion rested in them, in such case, for the convenience and dispatch of business, and often for a proper understanding and appreciation of the testimony. As was said by Nelson, Ch. J., in a kindred matter, in Morris v. Wadsworth, 17 Wend. 103, the question must always depend so much upon the exercise of a sound discretion that it would be unsafe to lay down any general rule for the disobedience of which an exception should be allowed. See also Flynn v. Murphy, 2 E. D. Smith, 378; Philadelphia & T. R. Co. v. Stimpson, 39 U. S. 14 Pet. 463, 10 L. ed. 543, per Story, J. Truly it is at times a delicate discretion, to be used with sound judgment and great care for the case of the prisoner, lest he be jeoparded with the jury by testimony that may never properly have a place in their consideration. And it may be well often to doubt whether the zeal of counsel does not lead to an expectation of forthcoming connecting testimony, when it does not exist. Tilghman, Ch. J., in Stewart v. Huntingdon Bank, 11 Serg. & R. 267, said: "It has grown into a habit, within these few years for counsel to propose a chain of evidence, the first link of which depended on those which follow, and would not be competent without them." He remarks the incident dangers, and adds: "The court should, therefore, keep a wary eye on proceedings of this kind, and take care to instruct the jury to pay no regard to the evidence which they have heard whenever the condition on which it was introduced is not complied with." At a much more recent date it was decided, that if improper evidence is given, tending to inflame the damages, and it is not struck out at or before the close of the testimony, so that counsel shall not be allowed to refer to or dwell upon it in their address to the jury, it is alto. gether too late to cure the mistake by directing the jury to disregard it in the charge. Pennsylvania R. Co. v. Butler, 57 Pa. 335. Whenever the incompetent testimony received is of such a character as to inevitably tend to prejudice the minds of the |