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The refusal to challenge by either party in the said order of alternation shall not defeat the adverse party, of his full number of challenges, and such refusal on the part of said party to exercise his challenge in proper turn shall conclude him as to the jurors once accepted by him, and if his right of peremptory challenge be not exhausted, his further challenges shall be confined, in his proper turn, to such additional jurors as may be called. The court may, for good cause shown, permit a challenge to be taken to any juror before the jury is completed and sworn, notwithstanding the juror challenged may have been theretofore accepted, but nothing herein shall be construed to increase the number of peremptory challenges allowed by other provisions of law." If it is correct to assume, as counsel for defendant apparently contend, that this section applies to criminal trials, the action of the court may be defended on the principle that, having adopted the statute of another state, we adopt with it the judicial construction given to the statute by the courts of that state. Crawford v. Roberts, 8 Or. 324; McIntyre v. Kamm, 12 Or. 253, 7 Pac. 27; Trabant v. Rummell, 14 Or. 17, 12 Pac. 56; Everding v. McGinn, 23 Or. 15, 35 Pac. 178. In State v. Eddon, 8 Wash. 292, 305, 36 Pac. 139, the Supreme Court of that state constru

sideration in the case of State v. Miller, su- | ber of jurors are in the jury box at the time. pra. There they had attended the trial and heard the testimony, had talked in detail with witnesses and jurors of a former trial, and had in effect quite thoroughly tried and determined the issue, substantially traversing the same course to be then pursued in the new trial. The tentative opinions of the jurors here fall far short of the standard of actual bias established in that decision. In the last analysis, jury service is voluntary, a duty owing from the people to the government of the people. The process of the court may bring before it any citizen as a juror; but, if he is unwilling to serve, he can with impunity easily display such a state of mind as to disqualify him by any fair standard. He is answerable only to his conscience for his dereliction, for no one can look into his mind, as into his pocket, and ascertain its contents. The law has left to the court the estimation of a juror's fitness. The presiding judge sees and hears the juror, and so can far more wisely determine his qualifications than the appellate court can from a case made upon paper, and, unless a strong case of abuse of discretion by the trial court is made to appear, its decision on such a point cannot be disturbed. If a juror is honest enough fully and fairly to state to the court the sources of his information about the case and the conditional or even satisfactory opinion he entertains from that view-ed their statute from which section 126, L. point, remembering that usually the only testimony available on examination of a juror is his own, we cannot say that the court erred in accepting the juror's pledge to decide the issue according to the law and the evidence as given him upon the trial, not withstanding his previous mental attitude.

O. L., was taken, to mean that the peremptory challenges should be used first by one party and then by the other in proportion to the number allotted to each, working out as a result that, where the defendant was allowed twelve and the state six, the former should use two to the state's one of such [8] The defendant questions the right of challenges. Similar statutes have received the court to compel him to exercise two per- like construction in Idaho and Montana. emptory challenges to the state's one until State v. Browne, 4 Idaho, 723, 44 Pac. 552; he exhausted the twelve allowed him by sec- State v. Sloan, 22 Mont. 293, 56 Pac. 364. tion 1523, L. O. L. The defense relies upon In our judgment, however, it is not necsection 126, L. O. L., to support his conten-essary to rely on this construction of the tion that, beginning with the defendant, per-law. The Code of Civil Procedure has its emptory challenges should be used one by origin in the act of the legislative assemone alternately between the parties. That bly of October 11, 1862, while the Code of section was adopted substantially from the Criminal Procedure is embodied in the act laws of the state of Washington by the leg- of October 19, 1864, and amendments thereislative assembly of 1909 (Laws 1909, p. 89, to. Deady's Code, pp. 139, 441. They are § 1), and reads as follows: "The full num- independent acts having no relation to each ber of jurors having been called shall there other except as provided by reference from upon be examined as to their qualifications, the latter to the former. In the formation first by the defendant and then by the plain- of the jury the Criminal Code declares that: tiff, and having been passed for cause, per- "In criminal actions, the trial jury is formemptory challenges shall be conducted as fol- ed in the manner prescribed in chapter II lows, to wit: The defendant may challenge of title II of the Code of Civil Procedure, one, and then the plaintiff may challenge one, except as otherwise expressly provided in and so alternating until the peremptory chal- this chapter." L. O. L. § 1520. The Crimlenges shall be exhausted. After each chal- inal Code in the same chapter excludes the lenge, the panel shall be filled and the ad- civil challenge for implied bias (section 122, ditional juror passed for cause before an- L. O. L.), and substitutes one of its own other peremptory challenge shall be exercis- (L. O. L. § 1521), besides dispensing with ed, and neither party is required to exercise the equality in the number of peremptory a peremptory challenge unless the full num-challenges designated in section 125, L. O.

L., and allowing the defendant in criminal | court, not only by virtue of our statute, but actions double the number apportioned to also in pursuance of numerous cases, to regthe state. In these respects the Criminal ulate the order of proof, and it may well Code itself provides otherwise than the Civ-happen that the delineation of the res gestæ il Code. Section 1520, supra, must be con- will disclose acts and sayings of co-conspirastrued to be a reference to the Civil Code tors in advance of any showing of the conas it was at the date of the enactment nection of a particular defendant with that of the Criminal Code. It is as if chapter 2 conspiracy, all without error. A careful of title 2 of the act of October 11, 1862, ex- perusal of the testimony which is reported cept sections 122 and 125, were reprinted in full with the bill of exceptions convinces in the Criminal Code as part of the latter. us that at least a prima facie case of par[9] It is a rule of statutory construction ticipation in the conspiracy is shown as in this state that, where the provisions of against Caseday. one statute are incorporated into another by mere reference, a subsequent change in the former will not disturb the terms of the latter. Tillamook City v. Tillamook County, 107 Pac. 482; Sika v. C. & N. W. Ry. Co., 21 Wis. 375; People ex rel. v. Webster, 8 Misc. Rep. 133, 28 N. Y. Supp. 646; Shull v. Barton, 58 Neb. 741, 79 N. W. 732; Schwenke v. Union Depot, etc., 7 Colo. 512, 4 Pac. 905; Ex parte Crow Dog, 109 U. S. 556, 3 Sup. Ct. 396, 27 L. Ed. 1030; Wick v. Ft. Plain Ry. Co., 27 App. Div. 577, 50 N. Y. Supp. 479. We conclude that the legislative assembly in amending section 126 in 1909 must have had in mind the autonomy of the Criminal Code as a separate act; that it was otherwise provided therein about the peremptory challenges; and that on account of the disparity between the number allowed to each party in criminal cases it would be impracticable to have them alternate one by one. Thus the Criminal Code was left intact. Strictly speaking, the court could have required all challenges to be taken by both parties as to each juror before another was drawn from the box, but they were indulged by the court in making their peremptory challenges to particular jurors after the others were examined. The defendant's rights were not abused. He was not deprived of any of the means by which the law allows him to exclude jurors from the panel. The trial jury was legally and properly selected.

It is impossible within the limits of an ordinary opinion to notice in detail each one of the 141 assignments of error noted in the bill of exceptions. The principal contention of the defendant is that the court erred in admitting testimony about the actions and private conferences between the defendants Shields, Green, and Caseday in Monument and Hamilton the evening before the killing of Snyder and of the declarations and threats of Shields and his conduct in trying to get different parties to help hang Snyder. This theory of objection runs throughout the case and is the foundation of most of the exceptions to the charge of the court. It is rare that a criminal conspiracy can be proven by direct and positive testimony. Most generally the prosecution is compelled to rely on circumstantial evidence.

[11] After the formation of a conspiracy to commit crime, any act or declaration of one of the conspirators, which occurs before the actual commission of the contemplated crime, and which tends to prove the guilt of that conspirator, is equally admissible in evidence against any one of his confederates in a separate trial of the latter. If not connected with the deeds of those who actually gave Snyder his lethal wounds, the defendant, Caseday, did nothing criminal in itself. Taking the prisoner to the scene of his death was innocent enough when consid ered alone. It therefore became necessary to the conviction of the defendant to show that this ostensibly blameless act was by him made a part of a criminal scheme in which he and his codefendants, or some of them, participated with the design to slay Snyder. Hence arose the requirement of proving a conspiracy for that purpose. Further, if the state would impart criminality to this apparently innocent act of the defendant, Caseday, it was important to prove not only that he thus acted his part in the tragedy, but also that the others of the cast, or some of them, performed theirs, and to that end anything that tended to show the guilt of any of them was admissible against him provided it happened during the existence of the conspiracy.

[12] In the presence and hearing of his brother Earl, armed with a rifle, having in his possession the cartridges returned to him by the defendant saying, "For God's sake! Ain't that enough?" Emmett Shields declared: "I bet you that man never gets to Canyon." This was surely admissible against the declarant, and, in conjunction with the other evidence tending to show guilty confederation between him and Caseday, it was also competent as against the latter. This is but an illustration of other like circumstances disclosed by the testimony.

[13] It is contended that some of these declarations of Caseday's codefendants were made before there was any showing of participation on his part in the alleged conspiracy. This cannot affect the case if in fact Caseday did participate in the conspiracy and aided in bringing about the fatal consummation. If a conspiracy is in fact form

the charge is erroneous because it does not state the degree of proof necessary to supplement the original admission or confession. The language is practically that of the Code (L. O. L. § 1537), and in that respect differs from the statute of the state of California from which citations are made in support of this assignment of error. The degree of proof, or, in other words, the effect of the evidence, is for the jury, and under our statute the court cannot weigh the testimony for the jury independent of the admissions or confessions.

summation, when a defendant actively par- | The defendant contends that this part of ticipates in such conspiracy he adopts the previous acts and declarations of his fellow conspirators. In a sense he finds the conspiracy a going concern, adds his ability to its criminal capital, and so becomes as much a part of the enterprise as if he were one of its founders. Hence the declarations of a fellow conspirator, although made before the defendant joins the lawless association, are admissible in the trial of any one of them. Smith v. State, 21 Tex. App. 96, 17 S. W. 560; State v. Crab, 121 Mo. 554, 26 S. W. 548; Sands v. Commonwealth, 21 Grat. (Va.) 871; Kelley v. People, 55 N. Y. 565, 14 Am. Rep. 342; Commonwealth v. Waterman, 122 Mass. 43; Krens v. State, 75 Neb. 294, 106 N. W. 27; Borrego v. Territory, 8 N. M. 446, 46 Pac. 349; Collins v. State, 138 Ala. 57, 34 South. 993; Trevino v. State (Tex. Cr. R.) 41 S. W. 609; Wilkerson v. State (Tex. Cr. R.) 57 S. W. 956; Mercer v. State, 40 Fla. 216, 24 South. 154, 74 Am. St. Rep. 135; State v. Dilly, 44 Wash. 207, 87 Pac. 133; State v. Darling, 199 Mo. 168, 97 S. W. 592.

[14] The court refused the following instruction requested by defendant: "Where a conviction for a criminal offense is sought upon circumstantial evidence alone, the state must show beyond a reasonable doubt that the alleged facts and circumstances are true, and they must be such facts and circumstances as are absolutely incompatible upon any reasonable hypothesis with the innocence of the accused and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the accused. If all the facts and circumstances relied on by the state to secure a conviction can be reasonably accounted for upon any theory consistent with the innocence of the defendant. such facts and circumstances are not sufficient to sustain a conviction." This instruction, taken as a whole, is erroneous. The term “absolutely” implies mathematical demonstration which is a degree of proof impossible in any matter involving, the actions of human beings. The law does not contemplate such a degree of certainty, but requires only moral certainty to the exclusion of reasonable doubt of the guilt of the defendant. State v. Glass, 5 Or. 73.

[15] The latter part of the instruction, directing in substance a verdict for the defendant if any reasonable theory consistent with his innocence could be derived from the testimony, was otherwise given in the charge of the court.

[17] The defendant further complains of the following instruction: "The testimony of some witnesses has been offered by the state to show certain oral statements made by the defendant now on trial, after the death of Oliver Snyder. In criminal law a statement voluntarily made by a person of a fact only, which is as consistent with his innocence as with his guilt, and is made exculpatory, or in explanation of any suspicious or incriminating circumstances, is an admission; but when the statement carries with it a suggestion of guilt, either as to the character of his intent, or the quality of his act, and the statement is made inculpatory, such statement is in the nature of a confession." Taken in connection with the whole of the court's charge, the learned judge was simply distinguishing between confessions and admissions with a view of explaining the latter to the jury. There is abundant evidence in the record to authorize an instruction about admissions, for the witnesses detailed several things stated by the defendant after the killing of Snyder, and the distinction made by the court was quite proper within the meaning of State v. Heidenreich, 29 Or. 381, 45 Pac. 755, and State v. Porter, 32 Or. 135, 49 Pac. 964.

Some questions about cross-examination of witnesses are raised in defendant's brief; but none of them are meritorious or show any erroneous exercise of the court's authority over those features of the trial as defined by our Code. L. O. L. § 856.

[18] At the close of the charge counsel for defendant asked that the jury be instructed as to the crime of manslaughter. Sections 1897, 1898, 1899, and 1902 of our Code separately define manslaughter as the same may be committed under different circumstances. The request was general in its terms and did not indicate what particular kind of manslaughter the defendant wished to be explained to the jury. The only in[16] The court also gave this instruction: dication we find in the brief of the appellant "Notwithstanding the admissions and con- on that point is the quotation of section fessions of a defendant may be given against 1898, L. O. L., viz.: "If any person shall, in him on his trial for crime, such admissions the commission of an unlawful act, or a or confessions are not alone sufficient to lawful act without due caution or circumwarrant a conviction without some other spection, involuntarily kill another, such perproof that the crime has been committed." son shall be deemed guilty of manslaugh

ter." We are at a loss to perceive how this section applies to the case in hand unless it be claimed that in proceeding towards Canyon City with his prisoner alone after being warned of a plot to lynch Snyder the defendant performed a lawful act without due care or circumspection on account of which the death of the prisoner occurred.

There

[19] In our judgment this section does not apply even to such a hypothesis. If the death of Snyder was the direct result of the negligent act of Caseday without the voluntary intervention of any other human agency, or, in other words, if his negligence operating as a proximate cause in conjunction only with natural causes resulted in Snyder losing his life, the section quoted would be applicable; otherwise not. is no theory of the evidence supporting or giving color to such a situation. If we consider the conduct of the defendant as only negligent, still it was not the proximate agency which accomplished the death of Snyder. The voluntary act of other persons in shooting him was the immediate cause of his demise, so that the actions of the defendant will not operate to increase his mere heedlessness to manslaughter or to reduce to that grade a more serious homicide. rule is well settled that, on a trial of a person for the crime of murder, if there is no evidence tending to reduce the homicide to manslaughter, it is not incumbent upon the court to charge with reference to the lesser crime." State v. Magers, 35 Or. 520, 57 Pac. 197; State v. Megorden, 49 Or. 259, 88 Pac. 306.

"The

[20] If the defendant honestly thought the alleged threats of his codefendants were drunken bluff, and so started alone with his prisoner, although against the judgment of cooler heads, and the tragedy ensued without his consent, he ought to have been acquitted. Again, if from mere bravado he went on his way intending to overcome all attempts against his charge, and at the critical moment his courage failed, and he weakly gave up Snyder to his death, still he did not violate the law. But if, on the other hand, having knowledge of and being a party to the alleged conspiracy to kill Snyder, the defendant agreed or consented to take him to the scene of the killing, ostensibly in the performance of a duty enjoined upon an officer of the law, but in real truth as a part the defendant was to act in the tragedy, he was guilty of a degree of homicide greater than manslaughter.

tion upon that point. To accede to defendant's request in that respect would have been turning the jury loose to speculate outside of the evidence, and, as the slang goes, to "return a verdict on general principles." It would have exposed the defendant to a danger not at all justified by the evidence or the law applicable to the case. The alternative of the defendant's innocence or his guilt of the only species of homicide which could be derived from any reasonable theory arising from the testimony was fairly submitted to a jury of his peers, and that jury has decided the dilemma against him. The judgment is affirmed.

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Where a devise to a testator's son for his sole use, with gift over in case of his death without issue living at the time of his death, creates a life estate in the son, the limitation over is not indefinite, but takes effect at the son's death without issue surviving.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1393-1416; Dec. Dig. § 614.*] 3. WILLS (§§ 598, 601*)-ESTATES ACQUIREDLIMITATIONS.

Under L. O. L. § 7103, the absence of the word "heirs" from a devise does not necessarily imply that a life estate only is given, and, where a devisee takes an absolute estate, any attempt to limit the fee will not be sanctioned.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1327-1331, 1340; Dec. Dig. §§ 598, 601.*]

4. WILLS (8 524*)-DEVISEES-TIME OF ASCERTAINMENT OF CLASS.

Testator devised real estate to his son, who at the time of the execution of the will was a widower having two grandchildren, the children of a deceased daughter. Subsequently he married; but there was no issue of the second marriage at the time of the execution of the codicil, declaring that the devise to the son should be for his sole use independent of his wife, and that in the event of his death without issue living at the time of his death the devise should go to others. The son at the time of the execution of the codicil was 52 years of age and his wife 46. Held that, in view of the presumption of the possibility of issue, it was unreasonable to suppose that testator desired to exclude issue subsequently born and living at the son's death from taking the share ratio determined from the number of children to which each would be entitled, based on the and grandchildren.

In our opinion upon the whole case there is no halfway ground for the defendant to occupy between innocence and murder. The trial court went as far as proper in his favor in advising the jury about the degrees of homicide. There being no theory of the evidence upon which to predicate manslaughter, [Ed. Note. For other cases, see Wills, Cent. the court was right in refusing an instruc-Dig. §§ 1116-1127; Dec. Dig. § 524.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

5. WILLS (§ 630*)-ESTATES ACQUIRED-VESTED OR CONTINGENT.

Testator directed his executors to hold his real estate until a designated date, at which time they should divide the same into parts, each of which should be given to persons named. The executors were empowered to lease the real estate, collect the rents, make necessary repairs, and pay taxes. Held, that the executors merely held the possession of the real estate, and that their duties were discharged when they divided the premises as required, and prior to such division the beneficiaries took a vested estate in fee.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1464-1480; Dec. Dig. § 630.*]

6. WILLS (§ 439*)-INTENTION OF TEstator. The intention of testator governs in the construction of his will, and, where a testator's design can reasonably be ascertained, it con

trols.

[Ed. Note. For other cases, see Wills, Cent. Dig. 952; Dec. Dig. § 439.*]

7. WILLS (8 614*)-CONSTRUCTION ACQUIRED "USE."

- ESTATES Testator directed his executors to hold his real estate until a designated date and then divide it into shares, and he gave a share to his son. By a codicil he declared that the devise to the son should be for his sole "use" independent of his wife, and that, on his death without issue living at the time of his death, the devise should go to others. Held, that the son acquired only a life estate; the word "use" meaning the transfer of an interest in land for life (citing 8 Words & Phrases, p. 7228).

[Ed. Note.-For other cases, see Wills, Cent. Dig. 1411; Dec. Dig. § 614.*]

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh, Judge.

Suit by Green C. Love against Emma J. Walker and others. From a decree determining adverse interests under the will of Lewis Love, deceased, certain of the defendants appeal. Reversed, and suit dismissed.

This is a suit to determine an adverse interest in real property. The facts are that on January 5, 1899, a last will and testament was made and published, as follows:

"Know all men by these presents: That I, Lewis Love, of Portland, Multnomah county, Oregon, being over the age of 80 years, and being of sound and disposing mind and memory, do make and declare this as my last will and testament, in manner and form following, that is to say: I make, constitute and appoint T. T. Struble, Philo Holbrook and H. C. Breeden executors of this my last will and testament, and request and direct that no bonds or undertaking be required of them as such, nor of them as trustees to hold my estate to a certain time hereinafter mentioned. I direct that all of my just debts, including funeral expenses and the expenses of administration, be paid by my executors. In order that my purpose and ownership of property shall be clearly understood, I hereby preface my devises and bequests as follows: I have made no deed to any person or persons to any real or personal property to take effect at or after my death. I made five deeds to my children and grandchildren September 21, 1894, which were executed and acknowledged before T. I made eight

8. WILLS (8_535*) — CONSTRUCTION - DISIN-
HERITING HEIR.
An heir can only be disinherited by ex-
press devise, or necessary implication.
[Ed. Note. For other cases, see Wills, Cent.
Dig. 88 1157-1160; Dec. Dig. § 535.*]
9. WILLS (§ 498*)-CONSTRUCTION-DEVISEES T. Struble, notary public.

-"ISSUE.

Testator directed his executors to hold his real estate until a designated date and then divide it into shares, and he gave one share to his son, and provided that it was his purpose to distribute his property equally between his children and to the heirs of those of his children who were dead. By a codicil he declared that the devise to the son should be for his sole use, independent of his wife, and that on his death without issue living at his death the devise should go to persons designated. Held, that the word "issue" in the codicil included grandchildren.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1087-1089; Dec. Dig. § 498.*

For other definitions, see Words and Phrases, vol. 4, pp. 3778-3782; vol. 8, p. 7693.]

10. WILLS (§§ 634, 635, 625*)-ESTATES CREATED- VESTED REMAINDER - AFTER-BORN CHILDREN-EXECUTORY DEVISE.

Grandchildren in being at the time of the execution of the codicil became vested as remaindermen with a fee at the death of testator, subject to the son's life estate and to the possibility of their interest being diminished by the birth of other issue, and there was a remainder over by way of executory devise to the designated persons in case the son died without issue surviving.

[Ed. Note.-For other cases, see Wills, Cent. Dig. $$ 1488-1513, 1447; Dec. Dig. 88 634, 635, 625.*]

Burnett, J., dissenting.

I

deeds to my children, grandchildren and
grandchild December 28, 1896, which were
also acknowledged before T. T. Struble, no-
tary public; other than these mentioned
deeds I have made none since the first men-
tioned ones of date September 21, 1894.
am the owner absolute of the following real
property in the city of Portland, Oregon:
Lots 1 and 2, block 117, city; lot 4, block
116, city; lot 3, block 10, city; north half
lot 2, block 10, city; lot 8, block 111, city;
south half of lot 2, block 4, city; the east
75 feet and 11 inches of the south half of
lot 4, block 3, city; the north half of lot 4,
block 3, city; the south half of lot 3, block 3,
city. I have never made a deed to any per-
son or persons of any part or piece of this
property whatever. I also own 757 acres,
more or less, of land in sections 10, 11, 14
and 15, township 1 north, range 1 east, Wil-
lamette meridian; a portion of this land is
outside of and a portion inside of the city
limits of Portland, Oregon. I have made
no deed to any of this acreage to any per-
son or persons at any time, except for Co-
lumbia Cemetery. It is my purpose to will
at this time all of my property, personal,
real and mixed, to my legal heirs in the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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