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notice at his place of residence with some suit- cludes the civil challenge for implied bias, de able person; "and section 117 forbids a chal- fined by section 122, and substitutes a challenge to the panel. Defendant, on his trial for lenge of its own which dispenses with an murder, asked each juror of the special venire equality in the number of peremptory persons on his examination how he had been summoned, challenged as designated in L. 0. L. 125. L and challenged those who had been summoned O. L. 126, provides that the defendant may by any person other than the sheriff, without challenge one and then the plaintiff may chalany charge that the sheriff acted otherwise than lenge one until the peremptory challenges are fairly in the discharge of his duty. Held, that exhausted, and allows the defendant in crimthis manner of challenge amounted to a chal- inal actions, double the number of peremptory lenge to the panel, expressly forbidden by sec- challenges apportioned to the state. L. O. L tion 117.

1523, comprised in the Code of Criminal [Ed. Note.--For other cases, see Jury, Cent. Procedure, allows a defendant in a criminal Dig. & 541; Dec. Dig. $ 115.*]

case 12 peremptory challenges. The Code of 5. CRIMINAL LAW ($ 1144*)-APPEAL AND ER-Code of Criminal Procedure originated two

Civil Procedure originated in 1862, while the REVIEW PRESUMPTIONS SELEC

years later as an independent act. Held, that TION OF JURY. sheriff's official duty in summoning a special when the Code of Criminal Procedure was enOn appeal it will be presumed that the L.O. L. 1520, should be construed as a refer

ence to the Code of Civil Procedure as it was venire of jurors from which to draw a jury for acted, and that L 0. L. 125, was amended defendant's trial for murder was regularly per- with reference to the different provisions of formed.

the Code of Criminal Procedure as to peremp[Ed. Note. For other cases, see Criminal tory challenges, and did not change or superLaw, Cent. Dig. 88 2758-2762; Dec. Dig. & sede section 1521. 1144.*)

[Ed. Note.-For other cases, see Jury, Cent 6. CRIMINAL LAW ($ 1115*)-APPEAL AND ER- Dig. 88 624-626; Dec. Dig. $138.*] ROR-RECORDS-QUESTIONS PRESENTED FOR 9. STATUTES (8 142*)—IMPLIED AMENDMENT REVIEW-SELECTION AND IMPANELING JURY.

AMENDMENT OF RE-ENACTED STATUTE. L. 0. L $ 990, subd. 4, makes it a sufficient incorporated into another by mere reference,

Where the provisions of one statute are cause of challenge if a juror has been suminoned and attended as such at any term held with-affect the terms of the latter.

& subsequent change in the former will not in one year prior to the challenge, and at defendant's trial beginning June 20, 1910, a juror

[Ed. Note.-For other cases, see Statutes, whose name had been drawn testified' that he Cent. Dig. § 210; Dec. Dig. 8 142.*] served "a year ago this spring", on the jury in 10. CRIMINAL LAW ($ 427*)— EVIDENCE-PREthat court, but did not know when he was dis LIMINARY EVIDENCE AS TO CONSPIRACY OB charged. Held, that there was not enough in COMMON PURPOSE. the record to raise the question of the juror's The order of proof in a criminal case is prior service as a ground of challenge.

within the discretion of the trial court, and [Ed. Note.-For other cases, see Criminal the court may admit acts and sayings of a coLaw, Cent. 'Dig. $ 2927; Dec. Dig. $ 1115.*] conspirator in the res gestæ in advance of any 7. JURY (!_ 103*)-COMPETENCY AND CHAL- preliminary, showing of the connection of : LENGES-JUROR'S FORMED OPINION-INFLU

defendant with a conspiracy. ENCE OF OPINION ON VERDICT-STATUTES.

(Ed. Note. For other cases, see Criminal A juror, on examination, stated that he Law,, Cent. Dig. $8 1012–1017; Dec. Dig. I was not acquainted with any of the defendants ; 427.*] that he had read accounts of the homicide, and 11. CRIMINAL LAW (8 422*)-EVIDENCE-ACTS had heard it discussed to some extent, and bad AND DECLARATIONS OF CONSPIRATORS. expressed his opinion in those discussions; and After the formation of a conspiracy to that his opinion was so fixed that it would re- commit crime, any actor declaration of one quire sworn testimony to remove it; but that of the conspirators which occurs before the he could lay aside his estimates of the case and actual commission of the contemplated crime, try it fairly and impartially without allowing and which tends to prove the guilt of that con. his opinion to influence him in making up his spirator, is equally. admissible in evidence verdict as a juror. Another juror stated that against any one of his confederates in a sepahe was slightly acquainted with defendants, rate trial of the latter. had heard of the crime, discussed it, and read

[Ed. Note.-For other cases, about it, but expressed no opinion, and that he Law, Cent. Dig. 88 984-988; Dec. Dig. $ 422.*]

see Criminal would not take into consideration anything but what was produced at the trial, or was directed 12. CRIMINAL LAW ($ 422*)-EVIDENCE-DECby the court. Another juror, who had merely LARATIONS OF CONSPIRATORS. heard of the crime without informing himself

At defendant's separate trial for murder as to the facts or expressing any opinion,

was there was evidence that after defendant, who présent 15 minutes in court during argument at was a deputy sheriff in charge of a prisoner, the trial of another of the defendants. Held, returned a rifle and some cartridges to one of that such jurors were competent under L 0! the defendants with him, was asked if that was L. $. 121, providing that a formed or expressed all, he said, “For God's sake! Ain't that opinion upon the merits of the cause from enough?" and that the owner of the rifle, in bearing or reading will not disqualify à Juror the presence of another defendant, declared, unless the court is satisfied that the juror cap- referring to prisoner, "I bet you that man never pot disregard such opinion and try the issue gets to Canyon," and there was other evidence impartially.

tending to show a guilty confederation between [Ed. Note.-For other cases, see Jury, Cent. these parties, who were afterwards indicted Dig. $8 461-479; Dec. Dig. $ 103.*]

jointly. Held, that this declaration was admis

sible against defendant. & JURY (8_138*) — COMPETENCY AND CHALLENGES-PEREMPTORY CHALLENGES-ORDER

(Ed. Note.-For other cases, see Criminal OF EXHAUSTION OF CHALLENGES.

Law, Cent. Dig. $8 984–988; Dec. Dig. $ 422.*] L. 0. L$ 1520, declares that in criminal 13. CRIMINAL LAW (8 422*)-EVIDENCE-DECactions the trial jury is to be formed in the LARATION AND ACTS OF CONSPIRATORS-ADmanner prescribed in chapter 2 of title 2 of the MISSIONS-PRIOR TO CONSPIRACY. Code of Civil Procedure except as otherwise Where a defendant joins a conspiracy after expressly provided, and L. 0. L. S 1521, a sec- its formation and actively participates in it, he tion of the Code of Criminal Procedure, ex-adopts the previous acts and declarations of his

fellow conspirators, and the declarations of a a lawful act without due care, on account of fellow conspirator, although made before de- which the homicide occurred from the unlawful fendant joined the conspiracy, are admissible acts of other persons, no instruction on manin a trial of any one of the conspirators. slaughter as defined by section 1898 is neces

[Ed. Note.-For other cases, see Criminal sary. Law, Cent. Dig. $ 985; Dec. Dig. § 122.*] [Ed. Note.--For other cases, see Homicide, 14. CRIMINAL LAW ($ 784*) - EVIDENCE

Cent. Dig. $$ 649-656; Dec. Dig. $ 309.*] WEIGHT AND SUFFICIENCY — CIRCUMSTAN. 19. HOMICIDE (8 309*)—TRIAL-INSTRUCTIONS TIAL EVIDENCE-DEGREE OF PROOF.

-MANSL- UGHTER-ABSENCE OF EVIDENCE. In a prosecution for murder, a requested Where there is no evidence on the trial instruction that, to convict for a criminal of- of a person for murder tending to reduce the fense on circumstantial evidence, the state must homicide to manslaughter, the court is not reshow such facts and circumstances as are ab- quired to charge with reference to the lesser solutely incompatible upon any reasonable hy- crime. pothesis with defendant's innocence, and in [Ed. Note.-For other cases, see Homicide, compatible of explanation except by defendant's Cent. Dig. $8 649-656; Dec. Dig. $ 309.*] guilt, is properly refused, since the law does not require such a degree of certainty as the term 20. HOMICIDE ($ 309*)—TRIAL-INSTRUCTIONS "absolutely” implies, but requires only moral

-MANSLAUGHTER-APPLICATION TO ISSUE. certainty to the exclusion of reasonable doubt

Defendant was indicted jointly with others of the defendant's guilt.

and separately tried for murder for having [Ed. Note.--For other cases, see Criminal

participated in an alleged agreement by which Law, Cent. Dig. 88 1885-1888; Dec. Dig. & his capacity as a deputy sheriff to an agreed

he was to take a prisoner then held by him in 784.]

meeting place, where the prisoner was to be 15. CRIMINAL LAW ($ 829*)-TRIAL-REQUEST taken from his control and lynched. Held, that

FOR INSTRUCTIONS-INSTRUCTION ALREADY whether defendant honestly thought that the GIVEN.

alleged threats of his codefendants were drunkThe refusal of a particular instruction di- en bluff and started alone with his prisonerrecting a verdict for defendant on any reason- and the prisoner was taken and lynched withable theory of innocence is not ground for com- out his consent, or whether he weakly surplaint, where that instruction is otherwise rendered him to death, there was no theory on given.

which to predicate manslaughter, and an in[Ed. Note.-For other cases, see Criminal struction thereon was properly refused. Law, Cent. Dig. $ 2011; Dec. Dig. 829.*] [Ed. Note.-For other cases, see Homicide, 16. CRIMINAL LAW ($ 781*) - PROVINCE OF

Cent. Dig. $$ 649–656; Dec. Dig. $ 309.*] COURT AND JURY-WEIGHT AND SUFFICIEN Appeal from Circuit Court, Grant County; CY OF EVIDENCE-CONFESSIONS AND ADMIS- Geo. E. Davis, Judge. SIONS.

An instruction on the conclusiveness of Joseph H. Caseday, jointly indicted for confessions and admissions, following the lan- murder with Emmett Shields and others, guage of L. 0. L. $ 1537, that, notwithstanding was conyicted of murder in the first degree admissions and confessions of a defendant may be given against him on his trial, they alone upon a separate trial, and he appeals. Afare not sufficient to warrant a conviction with-firmed. out some other proof that the crime has been committed, is not objectionable because it does

Joseph H. Caseday was jointly indicted not state the degree of proof necessary to sup- with Emmett Shields, Earl Shields, Albert since the degree of proof is for the jury, and Green, and Ben Hinton for the premeditated the court cannot weigh the testimony for the murder of Oliver Snyder. The better to jury, independent of the admissions or confes- comprehend the situation it is proper to state sions.

that Canyon City, the county seat, is locatea (Ed. Note.--For other cases, see Criminal

near the center of Grant county. About 30 Law, Cent. Dig. § 1868; Dec. Dig. $ 781.*]

miles to the northwest is the village of 17. CRIMINAL LAW (8 781*)–TriaL-INSTRUC- Hamilton, and Monument is situated about TIONS-APPLICATION TO CASE-ADMISSIONS 9 miles farther in the same direction. Some AND CONFESSIONS.

Where there is evidence in a prosecution miles still farther on that course on the evefor murder that statements were made by de- ning of December 24, 1909, in an altercation fendant after the homicide, an instruction dis- in a sheep herder's cabin, Oliver Snyder tinguishing between confessions and admissions is justified.

killed Arthur Green and at once fled, secret. [Ed. Note.--For other cases, see Criminal ing himself in the woods on the adjacent Law, Cent. Dig. $ 1865; Dec. Dig. $ 781.*] hills. Mr. Beymer, an eyewitness, notified 18. HOMICIDE ($ 309*)—TRIAL-INSTRUCTIONS the officers and summoned help. The defend. -MANSLAUGHTER.

L. 0. L. $$ 1897, 1898, 1899, and 1902. ant, Caseday, at that time was acting as define manslaughter as it may be committed deputy sheriff, and, hearing of the homicide, under different circumstances; section 1898 took with him a justice of the peace for the declaring that where a person, in the commis- purpose of holding an inquest, borrowed a sion of a lawful act without due caution or circumspection, involuntarily kills another, he gun belonging to his codefendant Emmett shall be deemed guilty of manslaughter. De- Shields, and proceeded toward the scene of fendant in a prosecution for murder was a the killing. Arriving at Monument, and deputy sheriff, jointly indicted with others and learning that Snyder had given himself up, tried separately for the murder of a prisoner; the defendant left the rifle and went on agreement between the defendants, the prisoner until he met some men bringing in the body was taken to a meeting place and lynched. of Arther Green and having Snyder under Held that, on the theory that defendant in proceeding with his prisoner alone after being arrest. Caseday then took charge of Snyder warned of a plot to lynch him was performing and returned toward Monument. Soon aft*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

115 P.-19

'er the defendant started from Hamilton to-, and from the resultant judgment he apward Monument, the defendants Emmett pealed. Shields, Earl Shields, and Albert Green

Leedy & Patterson, for appellant. Roy F. went together in a buggy to Monument. On returning to Monument with the prisoner, Shields and A. M. Crawford, Atty. Gen., for

the State. Caseday at once sought Albert Green and found him in a saloon, took him out in the rear of the building, and had a private con BURNETT, J. (after stating the facts as ference with him out of the hearing of other above). [1] The first error assigned is the persons. He directed the man with whom refusal of the court to change the place of he had left the rifle to return it to Emmett trial. The defendant filed his own affidavit Shields. Soon after, meeting Emmett in the and that of one of his attorneys, together saloon, the latter asked him for the car with two others, to the effect that the killtridges belonging to the rifle. Casedy pro-ing of Snyder had been generally discussed duced them, and, when Emmett asked him throughout the county; that several acif that was all, the former ejaculated: "For counts of the homicide had been published God's sake! Ain't that enough?" The par- in the local papers; and that in their opinties held a number of private conferences ion a fair and impartial trial could not be in and about the saloon in Monument, and had in that county. It is also charged later in the evening about 8 o'clock Caseday that some of the prominent taxpayers bad started with the prisoner to drive to Hamil-employed special counsel to aid in the proseton, following two other men who took with cution. The state filed counter affidavits, in them the body of Green. Arriving in Ham- substance giving a contrary opinion as to ilton, all the parties stayed there until be the probability of getting a fair and impartween 2 and 3 o'clock the following morn- tial jury. The affidavits amount to no more ing. Also in Hamilton there were frequent than the mere opinion of the affiants as to conferences in private between the defend the state of the public feeling. On the part ant, Caseday, and others of the defendants. of the defendant there is no showing of Emmett Shields was heard to state that they any overt act indicating prejudice against would never get to Canyon City with Sny- him except in the employment of special der. He and the defendant Hinton also so-counsel. Who or how many of the citizens licited various persons to assist in hanging of the county participated in that employSnyder. There is testimony tending to show ment is not shown. The newspaper accounts that, although Caseday had assistance in attached to the affidavits are devoid of senbringing Snyder as far as Hamilton, he sation calculated to inflame the public mind. represented to the assistant that they would the press accounts were mere statements stay all night in Hamilton and go to Can- as matters of news of the testimony given yon City the next day; but, disregarding at the trial of Hinton and other incidents that arrangement, he took the prisoner alone relating to the homicide. The showing is in and left for Canyon City about 3 o'clock substance equivalent to the statement that in the morning. Although warned of plans possibly the public may have formed a gento lynch Snyder and advised to take as- eral opinion of the guilt or innocence of the sistance, he curtly declined any help. The defendant from what it has heard or read. testimony also tends to show that his four This situation as to the material available codefendants left Hamilton on horseback for jurors is analogous to what is contemin advance of him and took the road leading plated in section 123, L. 0. La, to the efto Canyon City. The defendant Hinton fect that such an opinion shall not of itself was convicted on a separate trial of murder be sufficient to sustain a challenge to a in the second degree, and testified at the particular juror, but the court must be sattrial of Caseday, giving the details of tak- isfied from all circumstances that the juror ing and killing the prisoner about two miles cannot disregard such opinion and try the out of Hamilton towards Canyon City. The issue impartially. foregoing is a statement of only some of [2] It is uniformly held that a change of the salient features of the voluminous tes- venue is discretionary with the trial court. timony in the record. The contention of The jury in this case was impaneled after the state is, in substance, that the matter the examination of 98 men. We cannot of lynching Snyder was arranged among say that the judicial discretion was abused the defendants Shields, Green, and Hinton, in denying the application to change the and that Caseday was approached on the place of trial. The decision of trial courts subject and consented to play the part of denying motions to change the venue on taking the prisoner ostensibly under arrest much stronger showing than exhibited here to the place where the other defendants, was upheld in the following cases: State r. by a pretense of force, should take him Pomeroy, 30 Or. 16, 19, 46 Pac. 797; State away from the officer and lynch him. The v. Savage, 36 Or. 191, 198, 60 Pac. 610, separate trial of Caseday resulted in a ver- 61 Pac. 1128; State v. Armstrong, 43 Or.

the

Or. 485, 487, 83 Pac. 865; State v. Mizis, 48 dicial feature from the duty of the sheriff Or. 165, 174, 85 Pac. 611, 86 Pac. 361. in summoning talesn.en. The mere act of de

Twenty-five assignments of error in the livering notice is purely ministerial, and it bill of exceptions relate to the manner of might well happen that the sheriff himself forming the jury.

designated the citizens of the county to be [3] At the beginning of the trial there summoned and directed his deputies, or, for were but seven jurors of the regular panel that matter, any one else, to hand the statin attendance. The names of these were utory notice to those selected. There is taken from the box at once, and the court nothing in the objections of the defendant directed counsel to proceed with their ex- as reported in the bill of exceptions to amination, to which the defendant objected exclude this hypothesis. There is no charge until the full number of twelve had been that the sheriff acted otherwise than fairly drawn. The court overruled the objection, in the discharge of his duty. and the seven were examined, with the [5] We must presume that his official duty result that four of them were excused for was regularly performed. The end to be cause. Afterwards special venires for 50, attained is an impartial jury, and this is 40, and 25 jurors were issued in succession, finally determined by the examination of from which the remainder of the jury was the men themselves under the sanction of impaneled. As this progressed the three the court at the trial of the cause. The reremaining jurors of the original seven were sult is not affected by the question of whethperemptorily challenged by the state, so that er or not the sheriff in person or his depas to them no harm was done the defend- uty delivered the notice to the jurors under ant; he lost no challenges on either of them. consideration. The manner in which they

[4] In respect to the formation of the jury, were served constitutes the only objection section 116, L. 0. L., prescribes that: “When urged by defendant to ten of the jurors the action is called for trial the clerk shall participating in the verdict, and, in draw from the trial jury box of the court, absence of any showing of partiality in the one by one, the ballots containing the names action of the sheriff, there is no merit in of the jurors until the jury is completed or that objection. the ballots are exhausted. If the ballots Except for the order in which the court become exhausted before the jury is com- required the parties to exercise their perplete, the sheriff, under the direction of the emptory challenges, the dispute about the court, sball summon from the bystanders, or formation of the jury is narrowed to a conthe body of the county, so many qualified sideration of the rulings on the eligibility persons as may be necessary, to complete of the last three jurors examined. the jury." According to section 1005, L. 0. [6] With but one peremptory challenge L., the sheriff summons persons named in left, the name of J. W. Allen was drawn the panel by giving written notice to each from the box. He testified that be served "a of them personally or by leaving the same year ago this spring' on the jury in that at his place of residence with some person court, but did not know when he was disof suitable age and discretion. As each charged. The trial began June 20, 1910. juror from the special venires was examined, The statute says that it is a sufficient cause and the defendant inquired of him by whom of challenge if a juror has been summoned he was served, and to each one answering and attended as such at any term held withthat he was served by some person other in one year prior to challenge. L. 0. L. $ than the sheriff himself in person, the de- 990, subd. 4. “A year ago this spring" would fendant objected because of that. This, in be more than one year prior to the beginour judgment, amounts to a challenge to the ning of the trial, and there is not enough in panel, which is forbidden by section 117, the record to raise the question on that L. 0. L. The only challenges allowed are ground of challenge. peremptory or for cause. Challenges for [7] Allen further testified that he was not cause are arranged under two subdivisions: acquainted with any of the defendants; that (1) General, that the juror is disqualified he had read the account of the killing of from serving in any action; or (2) that he is Snyder, had heard it discussed some, but disqualified from serving in the action on not to any great extent; that he sometimes trial. The general causes for challenge are: took part in the conversations and had exFirst, a conviction for felony; second, a pressed his opinion in those conversations. want of any of the qualifications prescribed He had heard some of what purported to be by law for a juror; and, third, unsound- the facts developed in the trial of Hinton, ness of mind or such defect in the faculties and from what he had heard he had formed of the mind, or organs of the body, as ren- and expressed a fixed opinion as to the guilt ders bim incapable of performing the duties of the defendant, Caseday, at the present of a juror. And the particular causes of time which it would require sworn testimochallenge are for actual or implied bias. ny to remove. He stated, however, substanL. 0. L. $$ 117-123. These provisions of tially that he could lay aside his estimate of the Code so particularly delimit objections to the case and try it fairly and impartially ; jurors as to exclude almost every quasi ju- would not allow his previous conceptions to

influence him if taken as a juror; that his | 485, 81 Pac. 363. In that case some of the opinion would not have any influence what. talesmen testified that they were in court at ever in making up his verdict; that the view the former trial when the widow of the dehe had was not formed from talking with cedent gave her testimony; that they had witnesses or jurors who had participated in talked to a good many witnesses who gave the trial of Hinton, but arose from talking testimony at the former trial, and also to with people about the case and from read some of the jurors who returned a verdict ing the papers. The court overruled the de- of guilty therein; that they detailed as nearfendant's challenge for bias of this juror, and ly as they could the facts involved, and, bay. afterwards the defendant used upon him his ing confidence in what they said, the jurors last peremptory challenge.

had formed a fixed opinion as to the merits The juror Cook was slightly acquainted of the case, which it would require strong with the defendants Caseday and Albert testimony to overthrow, and which would Green, but not with the defendants Shields. prevent the parties starting on an equal race He had heard of the killing of Snyder and in the trial; but that if accepted as jurors read about it in the local papers; had talk- they could lay aside such prejudice and try ed some with other people about it, but had the case fairly and impartially. This court not expressed any opinion himself. He was reversed the circuit court on this point with absent in Portland during the trial of Hin- the statement that: "As we remember the ton, had not formed an opinion as to the testimony given at the former trial by Mrs. guilt or innocence of Caseday, and stated Curtis, who heard the fatal shots fired that that he would not take into consideration made her a widow, we do not believe any what he had heard or read of the evidence person could listen to her recital of the facts in the trial against Hinton, but would go by without forming such an opinion as to renwhat was produced in the present trial; der him biased as to the merits of the case. that he would not consider the fact that Nor could a person hear the witnesses or Hinton had been convicted unless the evi- the jurors tell the story of the homicide, as dence showed a connection between Hinton it was unfolded in court, without forming and Caseday, in which event he would give such an opinion as to the guilt or innocence some consideration to the conviction of Hin- of the defendant as to render him prejudicton; but on examination by the court he an- ed in the matter." swered that he would surely go by the direc Intelligent men having any local interest tions of the court not to consider the fact in such an occurrence as a supposed murder that Hinton was convicted.

will usually form an opinion about the merBert Howard was not acquainted with any its by reading newspaper accounts and hearof the defendants; had heard of the killing ing the average neighborhood discussion of of Oliver Snyder, had heard the name of the the subject. The administration of justice defendant used in connection with it only as would become impossible if such an opinion a deputy sheriff at the time; had read the of itself disqualified a juror. This is the county paper; and had participated in the reason underlying section 123, L. 0. L., sudiscussion of the reports; but had not tak- pra. An opinion may be satisfactory to the en enough interest in the matter to inform man being examined as a juror, considering himself as to the facts for his own satisfac- the fact that hitherto he has sustained no tion and had not expressed any opinion as relation to the case different from any other to the guilt or innocence of Caseday. He citizen of the county. While he occupies was present in Canyon City about 15 min. that standpoint only, he may require testiutes while some one of counsel was arguing mony before changing his opinion. Under the case of Hinton to the jury, but who it such circumstances his opinion may be in a was he did not remember.

sense fixed, because he has had no occasion The court overruled the challenges for to think otherwise. When a talesman haycause made by the defendant against the ing that attitude of mind is being examined, jurors Cook and Howard and permitted them the question is whether, upon assuming the to participate in the trial of Caseday. “A particular relation of juror in the case as challenge for actual bias may be taken for distinguished from his previous general rethe cause mentioned in the second subdivi- lation as a member of the community, he sion of section 121 ; but on the trial of such will abandon the concomitants of the latter challenge, although it should appear that and submit bimself to the conditions and obthe juror challenged has formed or express- ligations of the former. The doctrine of the ed an opinion upon the merits of the cause statute is that the two relations are not nec from what he may have heard or read, such essarily incompatible, but that to disqualify opinion shall not of itself be sufficient to such a juror “the court must be satisfied, sustain the challenge, but the court must be from all the circumstances, that the juror satisfied, from all the circumstances, that cannot disregard such opinion and try the the juror cannot disregard such opinion and issue impartially." try the issue impartially.” L. 0. L. 123. The examination of Allen Cook and HowThe defense, to sustain these challenges, re- ard reveals a mental state in them widely

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