it, but when it is five or six feet from the ground it is not protected; that it is not usual or customary to fence or box machinery that is six or seven feet from the ground; that he put the machine up, and that there is a 'shifter,' and a tight and loose pulley; that if a person was going to oil the machine he would simply throw the belt onto the loose pulley, and the machine would immediately stop; that if any one wanted to repair the machine, that it is the proper method to stop it, and that is what the loose pulley is put there for; that it was the orders, before the accident occurred, to stop the machine to oil it; that he had seen the machine oiled without being stopped, and he had seen the machine stopped for the purpose of being oiled; that the orders were positive to stop the machine when cleaning and oiling." John Mangan, called as a witness for the plaintiff, testified— "That he was a boiler-maker, and had worked for twenty-eight years in that business, and in nearly half of the machine-shops of the United States; that he was acquainted with the iron punch and the machinery where the accident occurred; that he was at work for the railroad company in its boilershop in Topeka at the time; that prior to the accident there was no ordinary way of protecting such machinery by boxing or fencing to prevent accidents; that he never saw a machine of the kind that injured Sanborn boxed, before the accident." Sanborn himself testified "That he had been at work as a helper in the boiler-shop for a year and ten months; that in the room in which he worked were five machines: two punches, one planer, and two drills; that two of them, the large punch and drill, had been there during all of his service; that the smaller punch, on which he was injured, had been there for about five months; that he knew how the punch was started and stopped; that there were two pulleys, and the belt was shifted from the main pulley into the loose pulley by a shifter; that he saw others do it; that he had seen other men oil the machine as he was doing; that they never got hurt; and that he oiled it in the usual and customary way in which he had seen others oil it." At the time of the accident Sanborn was in possession of all his faculties and all his senses. The two cog-wheels were about six feet from the ground or floor, and there was nothing to prevent him from seeing that the cogs were not boxed or fenced, and every act that directly contributed to bring about the injury was his own. Of course, he did not intend to get injured. He did not intend to have his hand caught between the cogs where it was crushed; but accidentally his hand got low enough down to be caught, and thus his injury occurred. For this accidental injury he is not entitled to compensation from the company. Railroad Co. v. Plunkett, 25 Kan. 188; Railroad Co. v. Smithson, 45 Mich. 212; S. C. 7 N. W. Rep. 791; Sullivan v. Manufacturing Co., 113 Mass. 396. It is said, however, that Benton, the foreman of the defendant's shop, ordered Sanborn to run the punch and to oil the machinery; that he was an infant of tender years, ignorant and uninformed, and therefore this was such negligence that he is entitled to recover damages. As there is no direct allegation in the petition that this caused the injury complained of, it is doubtful whether the question sought to be presented is in the case. If it were a matter for our determi nation, we do not think any culpable negligence is shown on the part of the company or its foreman. At the time of the accident, plaintiff was seventeen years and seven months of age. He was not, therefore, in law, an infant of tender years. In this state, if a minor be over 14 years of age, and of sound intellect, he may select his own guardian. In this state, a person over 16 years of age, convicted of any felony or other offense, must suffer the punishment prescribed by the statute, to the same extent as if he had reached majority. We therefore think it may be presumed that a person of the age of Sanborn at the time he was injured has sufficient capacity to be sensible of danger, and to have the power to avoid it, and that this presumption will stand until overthrown by evidence of the absence of such discretion as is usual with persons of that age. Nagle v. Railroad Co., 88 Pa. St. 35. There was no evidence offered tending to show that Sanborn was limited in his mental capacity, or was in any way feeble minded. We fully recognize the doctrine that it may be negligence to set an infant of tender years to work upon a dangerous machine without pointing out its dangers; but, considering the age of the injured party, and the length of time he had worked in the shop of the railroad company before being hurt, the case presented does not come within that rule. It is unnecessary, in this case, to decide whether the plaintiff had the right to prove that the company, subsequent to the accident, boxed up or inclosed the machinery inflicting the injury. Even if the ruling was erroneous, it was immaterial upon the facts disclosed, and therefore not prejudicial. The most that can be said in that matter is that the company, as a measure of extreme caution, adopted additional safeguards as to such machinery after the unexpected accident had occurred to Sanborn. The declarations of Benton, the foreman, subsequent to the accident, were not parts of the res gestæ, and ought not to have been received in evidence. Railway Co. v. Pointer, 9 Kan. 620; Luby v. Railroad Co., 17 N. Y. 131; Sweatland v. Telegraph Co., 27 Iowa, 433. Upon the facts testified to the trial court committed no error in sustaining the demurrer to the evidence. Therefore the judgment of the district court must be affirmed. (All the justices concurring.) NOTE. Respecting the liability of master for negligence in the use of defective or dangerous machinery, see Hurst v. Burnside, (Or.) 8 Pac. Rep. 888, and note, 895, 896. Respecting the risks of employment, usual and unusual, assumed by an employe, the negligence of fellow-servants, and the like, see Kansas Pac. Ry. Co. v. Peavey, (Kan.) 8 Pac. Rep. 780, and note, 791-797. 1. HOMICIDE-MURDER IN SECOND DEGREE-JUSTIFICATION. The defendant, who was charged with murder, admitted that he shot and killed the deceased, but claimed that the act was justifiable. Upon an examination of the evidence given on the trial, it is held to be sufficient to sustain a verdict of murder in the second degree. 2. CRIMINAL LAW-TRIAL-EVIDENCE OF DEFENDANT ON PRELIMINARY EXAMINATION. The testimony given by the defendant on his preliminary examination, and which is reduced to writing and signed by him, may, when properly identified, be offered in evidence by the state against him.' 3. CONSPIRACY-EVIDENCE-ACTS AND DECLARATIONS OF CONSPIRATORS. Ordinarily, a conspiracy should be established prima facie before the acts and declarations of one co-conspirator can be given in evidence against another; and in this case it is held that the conspiracy was sufficiently shown to warrant the admission in evidence of the acts and declarations of those who were charged with aiding and abetting the defendant in the commission of the offense. 4. WITNESS-ADMISSION THAT FORMER TESTIMONY WAS FALSE. When the witness admits that the testimony which she formerly gave in the case was untrue, and then proceeds to state what she claims is a correct relation of the facts, full inquiry should be allowed with respect to what led her to make the so-called untrue statements, as well as the influences which subsequently caused her to change her testimony; but where such witness has quite fully stated what was said and done by those who were urging her to return to the witness-stand and tell the truth, the refusal of the question as to what she was crying about in their presence is not such an error as will work a reversal of the judgment. 5. CRIMINAL LAW-APPEAL-INSTRUCTIONS. The charge of the court is to be considered as an entirety, and if, when so considered, it correctly states the law, the mere misuse of a word in one part of the charge, which it appears could not have misled the jury, will not warrant a reversal. 6. SAME FORMER JEOPARDY-NEW TRIAL-MANSLAUGHTER. When the defendant, charged with murder, was convicted of manslaughter in the fourth degree, and thereupon moved for and obtained a new trial, he thereby placed himself in the same position as if no trial had been had, and the conviction for manslaughter in the fourth degree was no bar to a subsequent conviction of a higher degree of the offense charged. State v. McCord, 8 Kan. 232. 7. SAME-NEW TRIAL-MISCONDUCT OF JUROR. The mere fact that some members of the jury, during a recess of the trial, took up and examined a transcript of the evidence given in the former trial of the case, will not require a new trial, when it is not shown that the jurors read any part of what was written in such transcript. Error from Osborne county. S. B. Bradford, Atty. Gen., and A. Saxey, for appellee. JOHNSTON, J. On June 1, 1885, an information was filed in the district court of Osborne county, charging John R. Miller with the murder of Delbert J. Tunison, and also charging that John Cranshaw and Albert Whitaker aided and abetted Miller in the commission of the crime. At the trial had the following September a verdict was 1 See note at end of case. v.10p.no.10-55 returned finding that John R. Miller was guilty of manslaughter in the fourth degree. Upon his motion a new trial was granted, and immediately entered upon. This trial resulted in a conviction of murder in the second degree, from which he appeals to this court. He alleges numerous grounds of error, which we will consider and dispose of in the order of presentation here. The first point made is that the evidence is not sufficient to sustain the verdict. The defendant acknowledged that on May 19, 1885, he shot and killed Delbert J. Tunison with a gun loaded with bird-shot; but he claims that the killing was justifiable, because the deceased was in the act of stealing certain horses; and also that there were reasonable grounds to believe that he was about to be killed by the deceased, or was in danger of great bodily harm. A statement of some of the leading facts, together with what the testimony offered by the state tended to show, will be enough to make it appear that the verdict was not without support. It appears that on Saturday, May 16, 1885, a difficulty occurred between Tunison and his wife, the exact nature of which is not shown. Her father, Jeremiah Miller, who lived eight miles away, learned of the trouble on Sunday evening, and went at once to the residence of Albert Whitaker, who was jointly charged with the defendant, and who was a near neighbor of the Tunisons, and remained there until Monday forenoon. Before noon of that day, and while Tunison was absent from home, Jeremiah Miller, accompanied by Albert Whitaker, went to Tunison's house, and hitched a pair of horses found there to a wagon, and took Mrs. Tunison and the children to his home, carrying with them some goods and a cow found upon the premises, which property, together with the horses, was claimed by Mrs. Tunison as her individual property. The horses were also claimed by Tunison to be his property. The defendant is a son of Jeremiah Miller, and has made his home with him when not employed elsewhere, as also did his co-defendant, John Cranshaw, who is a son-in-law of Jeremiah Miller. At this time the defendant was at work in Osborne City, which was distant 11 miles from his home, and Cranshaw was engaged in Glen Elder, still further away. On Monday night the defendant and John Cranshaw hired a team at Osborne City, and drove home, where they found Jeremiah Miller and wife, Charles Miller, Albert Whitaker, Mrs. Tunison, and Mrs. Cranshaw. The testimony of the state. tended to show that all of the parties anticipated that Tunison would come there during the night to retake the horses claimed by him. It was also testified that on the day previous the defendant visited his home, and heard of the difficulty between Tunison and his wife, and then threatened that he would kill Tunison within a week. There was also testimony that Cranshaw stated to parties in Osborne, from whom he hired the team on Monday night, that they wanted the team to go out home; that Tunison and his wife had separated, and she had gone home; and that Tunison was expected to go there that night, and if he did there would be trouble, and they were going out to take a hand in it. The parties all remained in the house until about 10 o'clock at night, when a noise was heard at the barn, and defendant and Charles Miller went out there, but found no one. They did not return to the house, but took a position in the barn where the horses stood, and where it was so dark that one object could not be distinguished from another. The defendant was armed with a shotgun, which he says he accidentally found in the barn, and he and Charles Miller remained upon watch in the barn undisturbed until about midnight, when Tunison came into the barn, and, without interference, unloosed and took out a horse, which proved not to be one of those claimed by him, but belonged to Cranshaw. He tied this horse to a post near by, and returned to the barn. While he was out the defendant changed his position in the barn, holding the gun in such manner that it could be readily used; and when Tunison was stepping into the barn the second time the defendant shot him in the neck, when he fell backwards, and expired in a few hours afterwards. This testimony, together with many circumstances which are not stated, tend strongly to show that the killing was wholly without justification. We do not overlook the fact that there was testimony contradictory to some extent of that which has been stated, nor that testimony was given of threats made by Tunison that he was going after the horses, and would kill any one who interfered with him, and burn and destroy Miller's property, and that these threats were communicated to the defendant and other members of the family. There was also testimony in behalf of the defendant that when Tunison entered the stable door at the time he was shot the defendant ordered him to halt, and that Tunison made a motion with his right hand as if to shoot, at the same time stating: "I have the drop on you, and I will kill you for luck." Under the testimony and theory of the defendant, that Tunison came there to steal horses, and that while attempting to prevent him from committing a felony the deceased drew a revolver, and pointed the same at the defendant in such a way that he had reasonable grounds to believe that his life was in imminent danger, he was justified in shooting the deceased. But the jury were at liberty to disbelieve the testimony of the defendant, and to accept the theory of the state, as they manifestly did do, that Tunison went there, not to steal horses, nor to injure the Millers in person or property, but for the sole purpose of recovering the horses which he claimed as his own, and that the defendant had no reasonable cause to apprehend a design on the part of the deceased to kill or injure him. There is considerable in the testimony of the defendant which tends to weaken his claim, and which correspondingly strengthens the theory of the state. It is claimed by the state that the deceased did not bring a revolver with him, and that the one said to have been found upon his person after he was killed, was |