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spondents from Van Koevering's room, and was with them from that time until after the tragedy occurred. He denies that he took any part whatever in an assault upon any of the parties or participated in any way in any violence committed.
It is admitted that the only persons present at the time deceased met his death were the respondent, the two men impleaded with him, and the three Sovas. The first error assigned and relied upon by respondent charges a fatal irregularity in drawing the jury.
During the course of the trial, in securing a jury, when it became necessary to summon talesmen, the sheriff not being present, the undersheriff, Mr. Crego, was directed by the court to perform that official duty. It is asserted that this was objected to by respondent on the ground that the undersheriff was not a disinterested person; that he had been engaged in assisting the prosecution, and was a material witness for the people. Our examination of the record does not disclose that any exception was taken at the time to the action of the court. In an affidavit made by respondent on a motion for a new trial appears a statement that such an objection was made and an exception taken to the order of the court, which is given as one of the reasons for granting the motion for a new trial. It also appears that the court considered the matter in giving his reasons for denying a new trial, and in doing so stated what occurred on the trial at the time. In this excerpt from the record the court further said that no objection was made to any jurors summoned by the undersheriff that they were not in all respects qualified to serve. No showing was made as to the disqualification of the undersheriff, except as above stated, nor upon cross-examination of this officer, who was sworn as a witness on the part of the people, did counsel for respondent make any attempt to show his interest or disqualificaIn the absence of the sheriff, the undersheriff was the proper officer for the court to call upon to summon talesmen. The fact that a sheriff or undersheriff has been active in his duty in assisting the prosecuting officer is not ground for disqualifying him from summoning jurors to try the case, in the absence of any showing of his interest and disqualification other than such official acts. The exact question has been passed upon by this court, and it has been so held in other jurisdictions. People v. Summers, 115 Mich. 537 (73 N. W. 818); People v. Lalonde, 171 Mich. 286 (137 N. W. 74); State v. Tawney, 83 Kan. 603 (112 Pac. 161); State v. Jeffries, 210 Mo. 302 (109 S. W. 614, 14 Am. & Eng. Ann. Cas. 524).
It was a matter in the discretion of the court which does not appear to have been abused.
Error is also assigned because the court permitted Chief of Police McCall to testify to oral statements made by respondent after his arrest on the ground of insufficient foundation laid therefor; and also in permitting part of a written statement taken by the court stenographer later to be admitted in evidence because no foundation was laid for it or showing made that it was voluntary.
It is in evidence that two statements were made by respondent, the one testified to by Mr. McCall being the first, made in his presence and the presence of the sheriff and his officers. We do not think the objection was meritorious. The testimony shows that the statement was voluntary.
The further objection to the first statement was that respondent made a statement directly afterward which was taken down by the court stenographer. This objection was also without merit, for the reason that the record shows it was not the same statement, but was made before the stenographer came.
The foundation for the reception of the two statements was sufficient.
During the course of the reading of this statement taken by the court stenographer in evidence the following question appeared:
“Q. Now, Herb, I don't want you to avoid this thing. I want you to be absolutely straight about it on your own account. That is true. You better do it.”
On account of the nature and language of this question the statement was objected to by counsel for respondent. The objection was sustained, and it was stricken out, together with all of the statement after it. That portion which preceded and which had been read was allowed to stand. The court, as soon as his attention was called to what he considered an improper question, by objection on the part of respondent, sustained the objection and struck out all the balance of the statement.
The contention is that the entire statement should have been taken from the consideration of the jury. We have read this statement, and, when it is compared with the testimony of respondent voluntarily given upon the trial, we find the statement taken by the stenographer, as far as it was allowed in evidence, identical with his testimony; therefore the refusal to strike it out cannot be considered as prejudicial to respondent.
Closely connected with the exception to the order of the court in directing the undersheriff to summon talesmen for a jury is the claim that a certain juror so summoned was discovered after the trial to be disqualified. The question was raised upon the motion for a new trial, by affidavits which were presented and passed upon by the court, and error is assigned upon the refusal of the court to grant a new trial on that ground. From the extended examination had upon his voir dire it appears that the juror was passed by the people and by respondent. The three affidavits on the part of respondent show that this juror, who
was a carpenter, came to the Lauzon house, and while there talked with Mrs. Lauzon in regard to the assault made by Rebtoy upon respondent on the night of the dance. They do not show that he ever had or expressed any opinion in regard to the guilt or innocence of respondent. Opposing affidavits showed that Undersheriff Crego did not know this juror when he summoned him; that the juror was acquainted with Lauzon, and was at the house for the purpose of returning a jackscrew which he had borrowed; that at the time he did not know the charge against respondent; and that the facts of the case were not discussed. The court found, as a matter of fact, that this juror had not formed or expressed an opinion in respect to the guilt or innocence of respondent and was not disqualified, and denied the motion for a new trial; in which finding, after an examination of the facts then before the court, we concur.
Two of the assignments of error are as follows, and will be considered together:
“(1) That the court erred in submitting said cause to the jury; and the verdict is contrary to the undisputed testimony; and there is no evidence in the case that warranted the jury in bringing in a verdict of manslaughter."
“(2) That the court should have instructed the jury to acquit the respondent, as requested by the said respondent, as there was no evidence that he struck any blow or encouraged any one else to do so, or committed any assault.”
Both of these requests are based upon the contention made for respondent that there was no evidence, direct or circumstantial, to connect him with the homicide or to show that he was in any way responsible for the death of Ralph Sova, and that the testimony shows the contrary; that the fight, in which he took no part, was brought about suddenly; that there was no testimony in the record to show that he struck a blow or encouraged anybody else to do so.
While it is true that there is no testimony showing any specific blow struck by respondent during the time covered by the facts stated, yet from the statement of facts we have given, including respondent's testimony, it appears that there is evidence tending to show the purpose for which these three left Van Koevering's room. He admits that he was with them from that time, both while chasing the man down the street until he fell into the ditch, and on the return to the place where the homicide was committed. There is evidence in the case tending to show that this purpose was carried out and of respondent's active participation in all that occurred, up to and including the fatal assault by the three men upon the deceased. The court was therefore not in error in refusing respondent's request for a directed verdict of not guilty.
Error is also assigned upon a statement made by the assistant prosecutor, who opened the case upon his argument to the jury. All that the record shows in regard to the matter is as follows:
“In his address to the jury, Mr. Blackney, assistant prosecuting attorney, used this language:
“ 'We believe under the testimony in this case, after you weigh it carefully and well, after you think of all the incidents and circumstances in evidence in this case, after you have weighed the testimony and the manner of respondent in this case, which you have seen while you have seen him upon the witness stand, I believe, gentlemen of the jury, the testimony shows beyond all reasonable doubt that the respondent Herbert Ponsford is guilty in manner and form as the people have in their information in this case charged.'
“Mr. Lee (respondent's counsel): To that we take an exception. A very decided exception."
The record does not show that the court's attention was directed to this exception, nor does it appear that the court was requested to charge the jury with reference to it, although there was ample opportunity