notice at his place of residence with some suit- cludes the civil challenge for implied bias, deable 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. O. L. § 125. L and challenged those who had been summoned O. LA 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 Procedure, allows a defendant in a criminal case 12 peremptory challenges. The Code of Civil Procedure originated in 1862, while the

5. CRIMINAL LAW (§ 1144*)-APPEAL AND ER- Code of Criminal Procedure originated two PRESUMPTIONS

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

L. O. L. § 1520, declares that in criminal actions the trial jury is to be formed in the manner prescribed in chapter 2 of title 2 of the Code of Civil Procedure, except as otherwise Where a defendant joins a conspiracy after expressly provided, and L. O. L. § 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

In a prosecution for murder, a requested instruction that, to convict for a criminal offense on circumstantial evidence, the state must show such facts and circumstances as are absolutely incompatible upon any reasonable hypothesis with defendant's innocence, and incompatible of explanation except by defendant's guilt, is properly refused, since the law does not require such a degree of certainty as the term "absolutely" implies, but requires only moral certainty to the exclusion of reasonable doubt of the defendant's guilt.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1885-1888; Dec. Dig. 8 784.*]

15. CRIMINAL LAW (§ 829*)-TRIAL-REQUEST FOR INSTRUCTIONS-INSTRUCTION ALREADY GIVEN.

The refusal of a particular instruction directing a verdict for defendant on any reasonable theory of innocence is not ground for complaint, where that instruction is otherwise given.

[Ed. Note.--For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] 16. CRIMINAL LAW (§ 781*) — PROVINCE OF COURT AND JURY-WEIGHT AND SUFFICIENCY OF EVIDENCE-CONFESSIONS AND ADMIS

SIONS.

An instruction on the conclusiveness of confessions and admissions, following the language of L. O. L. § 1537, that, notwithstanding admissions and confessions of a defendant may be given against him on his trial, they alone are not sufficient to warrant a conviction without some other proof that the crime has been committed, is not objectionable because it does not state the degree of proof necessary to supplement the original admissions or confessions, since the degree of proof is for the jury, and the court cannot weigh the testimony for the jury, independent of the admissions or confessions.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1868; Dec. Dig. § 781.*] 17. CRIMINAL LAW (§ 781*)-TRIAL-INSTRUCTIONS APPLICATION TO CASE-ADMISSIONS AND CONFESSIONS.

Where there is evidence in a prosecution for murder that statements were made by defendant after the homicide, an instruction distinguishing between confessions and admissions is justified.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1865; Dec. Dig. § 781.*] 18. HOMICIDE (§ 309*)-TRIAL-INSTRUCTIONS -MANSLAUGHTER.

a lawful act without due care, on account of which the homicide occurred from the unlawful acts of other persons, no instruction on manslaughter as defined by section 1898 is necessary.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*] 19. HOMICIDE (§ 309*)-TRIAL-INSTRUCTIONS -MANSLAUGHTER-ABSENCE OF EVIDENCE.

Where there is no evidence on the trial of a person for murder tending to reduce the homicide to manslaughter, the court is not required to charge with reference to the lesser crime.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*] 20. HOMICIDE (§ 309*)-TRIAL-INSTRUCTIONS -MANSLAUGHTER-APPLICATION TO ISSUE.

Defendant was indicted jointly with others

and separately tried for murder for having he was to take a prisoner then held by him in participated in an alleged agreement by which his capacity as a deputy sheriff to an agreed meeting place, where the prisoner was to be taken from his control and lynched. Held, that whether defendant honestly thought that the alleged threats of his codefendants were drunken bluff and started alone with his prisonerand the prisoner was taken and lynched without his consent, or whether he weakly surrendered him to death, there was no theory on which to predicate manslaughter, and an instruction thereon was properly refused.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*]

Appeal from Circuit Court, Grant County; Geo. E. Davis, Judge.

Joseph H. Caseday, jointly indicted for murder with Emmett Shields and others, was convicted of murder in the first degree upon a separate trial, and he appeals. Affirmed.

Joseph H. Caseday was jointly indicted with Emmett Shields, Earl Shields, Albert Green, and Ben Hinton for the premeditated The better to murder of Oliver Snyder. comprehend the situation it is proper to state that Canyon City, the county seat, is located near the center of Grant county. About 30 miles to the northwest is the village of Hamilton, and Monument is situated about 9 miles farther in the same direction. Some miles still farther on that course on the evening of December 24, 1909, in an altercation in a sheep herder's cabin, Oliver Snyder killed Arthur Green and at once fled, secret. ing himself in the woods on the adjacent hills. Mr. Beymer, an eyewitness, notified the officers and summoned help. The defendant, Caseday, at that time was acting as L. O. L. §§ 1897, 1898, 1899, and 1902; deputy sheriff, and, hearing of the homicide, define manslaughter as it may be committed 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 the state contending that, as a result of an 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 Caseday then took charge of Snyder warned of a plot to lynch him was performing and returned toward Monument. Soon aftFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 115 P.-19

arrest.

Leedy & Patterson, for appellant. Roy F. Shields and A. M. Crawford, Atty. Gen., for

the State.

BURNETT, J. (after stating the facts as above). [1] The first error assigned is the refusal of the court to change the place of trial. The defendant filed his own affidavit and that of one of his attorneys, together with two others, to the effect that the killing of Snyder had been generally discussed throughout the county; that several accounts of the homicide had been published in the local papers; and that in their opinion a fair and impartial trial could not be had in that county. It is also charged that some of the prominent taxpayers had employed special counsel to aid in the prosecution. The state filed counter affidavits, in substance giving a contrary opinion as to the probability of getting a fair and impar tial jury. The affidavits amount to no more than the mere opinion of the affiants as to the state of the public feeling. On the part

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 went together in a buggy to Monument. On returning to Monument with the prisoner, 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 conference with him out of the hearing of other persons. He directed the man with whom he had left the rifle to return it to Emmett Shields. Soon after, meeting Emmett in the saloon, the latter asked him for the cartridges belonging to the rifle. Casedy produced them, and, when Emmett asked him if that was all, the former ejaculated: "For God's sake! Ain't that enough?" The parties held a number of private conferences in and about the saloon in Monument, and later in the evening about 8 o'clock Caseday started with the prisoner to drive to Hamilton, following two other men who took with them the body of Green. Arriving in Hamilton, all the parties stayed there until between 2 and 3 o'clock the following morning. Also in Hamilton there were frequent conferences in private between the defendant, 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. O. L, 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 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 v. 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.

on

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.

Twenty-five assignments of error in the bill of exceptions relate to the manner of forming the jury.

in summoning talesm.en. The mere act of delivering notice is purely ministerial, and it might well happen that the sheriff himself designated the citizens of the county to be summoned and directed his deputies, or, for that matter, any one else, to hand the statutory notice to those selected. There is nothing in the objections of the defendant as reported in the bill of exceptions to exclude this hypothesis. There is no charge that the sheriff acted otherwise than fairly in the discharge of his duty.

[5] We must presume that his official duty was regularly performed. The end to be attained is an impartial jury, and this is finally determined by the examination of the men themselves under the sanction of the court at the trial of the cause. The result is not affected by the question of whether or not the sheriff in person or his deputy delivered the notice to the jurors under consideration. The manner in which they were served constitutes the only objection urged by defendant to ten of the jurors participating in the verdict, and, in the absence of any showing of partiality in the action of the sheriff, there is no merit in that objection.

Except for the order in which the court required the parties to exercise their peremptory challenges, the dispute about the formation of the jury is narrowed to a consideration of the rulings on the eligibility of the last three jurors examined.

[3] At the beginning of the trial there were but seven jurors of the regular panel in attendance. The names of these were taken from the box at once, and the court directed counsel to proceed with their examination, to which the defendant objected until the full number of twelve had been drawn. The court overruled the objection, and the seven were examined, with the result that four of them were excused for cause. Afterwards special venires for 50, 40, and 25 jurors were issued in succession, from which the remainder of the jury was impaneled. As this progressed the three remaining jurors of the original seven were peremptorily challenged by the state, so that as to them no harm was done the defendant; he lost no challenges on either of them. [4] In respect to the formation of the jury, section 116, L. O. L., prescribes that: "When the action is called for trial the clerk shall draw from the trial jury box of the court, one by one, the ballots containing the names of the jurors until the jury is completed or the ballots are exhausted. If the ballots become exhausted before the jury is complete, the sheriff, under the direction of the court, shall summon from the bystanders, or the body of the county, so many qualified persons as may be necessary, to complete the jury." According to section 1005, L. O. L., the sheriff summons persons named in the panel by giving written notice to each of them personally or by leaving the same at his place of residence with some person of suitable age and discretion. As each juror from the special venires was examined, and the defendant inquired of him by whom he was served, and to each one answering that he was served by some person other than the sheriff himself in person, the defendant objected because of that. This, in our judgment, amounts to a challenge to the panel, which is forbidden by section 117, L. O. L. The only challenges allowed are peremptory or for cause. Challenges for cause are arranged under two subdivisions: (1) General, that the juror is disqualified from serving in any action; or (2) that he is disqualified from serving in the action on trial. The general causes for challenge are: First, a conviction for felony; second, a want of any of the qualifications prescribed 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 him 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. O. 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

[6] With but one peremptory challenge left, the name of J. W. Allen was drawn from the box. He testified that he served "a year ago this spring" on the jury in that court, but did not know when he was discharged. The trial began June 20, 1910. The statute says that it is a sufficient cause of challenge if a juror has been summoned and attended as such at any term held within one year prior to challenge. L. O. L. § 990, subd. 4. "A year ago this spring" would be more than one year prior to the beginning of the trial, and there is not enough in the record to raise the question on that ground of challenge.

[7] Allen further testified that he was not acquainted with any of the defendants; that he had read the account of the killing of Snyder, had heard it discussed some, but not to any great extent; that he sometimes took part in the conversations and had expressed his opinion in those conversations. He had heard some of what purported to be