author: MR. COMMISSIONER, OLAYBERG Pee Cueiaim.

text:
    STATE ex rel. BEACH et al., Relators, v. DISTRICT COURT, Department No. 1, LEWIS AND CLARKE COUNTY, Respondent.
    (No. 1,714.)
    (Submitted November 19, 1903.
    Decided December 12, 1903.)

      Mandamus — Requirements of Application — Laches—Motion-to Quash.

    1. To warrant the awarding of a writ of mandamus, the petition must show on its face a clear right to the relief sought by the relator.
    2. The writ of mandamus will not be issued to compel the performance of an act which would be useless, ineffectual, or unavailing as a remedy or beyond the power or duty of respondent to perform.
    The writ of mandamus may, in the discretion of the court, be refused if laches or long delay in, making the application appears, and there is no showing to explain or excuse its existence.

      4. A motion to quash an alternative writ of mandamus challenges both the sufficiency of the writ, and also the sufficiency of the affidavit upon which the writ is based.
    5. An altenative writ of mandamus to compel a district court to amend a statement on a motion for a new trial will be quashed on motion where the application fails to show that the motion for a new trial has not been decided.
    6. A delay of four years in making an application for a writ of mandamus to compel a court to amend a statement on motion for a new trial, and an additional delay of two years after the alternative writ was ordered before it was issued, authorizes the court issuing it to quash the writ on motion.
    Weit of'mandate by the state, on the relation of Calvin Beach and others, against the district court, Department No. 1, Lewis and Clarke • county.
    Alternative writ quashed, and proceedings dismissed. ’

      Messrs. McConnell & McConnell, for Relators.

      Messrs. Banders & Banders, and Messrs. Toole & Bach, for Respondent.
   MR. COMMISSIONER, OLAYBERG

prepared the opinion for the court.

Application for mandamus. Four different phases of the litigation involved in this proceeding have heretofore been before this court, and are reported in 21 Mont. 7, 52 Pac. 560; 21 Mont. 184, 53 Pac. 493; 25 Mont. 367, 65 Pac. 106; and 25 Mont. 379, 65 Pac. 111.

In order to arrive at 'a definite- and clear understanding of •the matter involved, a brief history of the litigation seems important : Suit was brought by the relators in the district court of Lewis and Clarke county, the trial of which was concluded prior to- July 1, 1891, on which day the court entered its decree in favor of the plaintiffs. ” On’July 12, Í891, on motion of counsel for defendant, the court made an order extending the time for preparing, filing and serving statement on motion for a new trial and .bills of exception until September 12’, 1891. On September 11, 1891, the court made another order, extending this time an additional thirty days. On October 11, .1891, the court made the following order: “On motion of counsel for defendant, and by consent of plaintiffs,. coart tbis day granted thirty days’ additional time to defendant in which to prepare, serve and file statement on motion for a new trial and bill of exceptions herein.” On December 28, 1897, plaintiffs moved the court to correct the order so entered, by striking out such portion thereof as shows the consent of plaintiffs thereto, which motion the court denied, and counsel for plaintiffs. appealed to the supreme court. This court, on the hearing of said appeal, on June 13, 1898, reversed the order thus appealed from, and directed the court below to strike out of the order of October 11th the words.“by consent of plaintiff.” (21 Mont. 184, 53 Pac. 493.) Defendant served.upon plaintiffs’ counsel its proposed statement on motion for a new trial on November 10, 1897. Plaintiffs’ counsel on November 18, 1897, served their objections and proposed amendments to the statement served, which objections urere to the effect that the statement was not served upon them within the time allowed by law. Counsel for plaintiffs, having reserved their right to object to the statement on said ground,, and counsel for defendant, having served notice of non-agreement to the proposed amendments, left their objections and .proposed amendments with the judge on November 29, 1897. .On December 24, 1897, counsel for both parties appeared before the judge, and counsel for plaintiffs objected to the settlement of the statement, which the court overruled. They then asked that their objections as presented be incorporated in the statement, _which the court overruled, holding that such objections should appear in a separate bill of exceptions, which 'was then and there settled. The statement was then settled and signed by the judge. On October 15, 1898, the motion for a new trial coming- on'to be heard, counsel for plaintiffs moved the court to strike the statement on motion for a new trial from1 the files, which was granted by the court, and the motion for a new trial wa's refused. Counsel for defendant had bills of exception settled upon each of these rulings, and appealed therefrom to this court, which by its decision reversed the orders, and directed the court below; “to. restore to the. file the statement on motion for a new trial” and proceed “to bear and determine tbe motion for a new trial” (25 Mont. 367, 65 Pac. 106) ; at tbe same time bolding that tbe objections to tbe settlement of the statement should have been included therein, and not saved by bill of exceptions. This decision was rendered June 3, 1901. August 22, 1901, relators' applied to this court for an alternative writ of mandamus against tbe district court to compel it to iu|corporate tbe objections in tbe statement. On tbe same day this court made tbe following order upon said application: “Relators application-for an alternative wilt of mandate herein is this day by the court granted, the same to be returnable ten days after service thereof.” On August 24, 1903, more than two years after tbe filing of tbe application and tbe granting of tbe above order, counsel for relators, without in any manner calling tbe attention of tbe court to their action, caused an alternative writ to be issued, returnable October 7, 1903. On tbe return day of the writ, counsel for respondent filed in this court a motion to quash it on some thirteen several and separate grounds, among which are, in substance, tbe following: Inexcusable delay in applying for tbe writ and in causing its issuance; want of a showing of facts sufficient to warrant tbe Writ. This motion was heai'd on November 19, 1903, and its determination is tbe matter for decision.

Tbe following, well-settled rules of tbe law of mandamus, when applied to tbe conditions confronting us on this bearing, in our opinion, make our duty clear:

(a) .Relators must clearly 'show that they are entitled to tbe writ sought. (High, Ext. Rem. Sec. 9, and cases cited; 2 Spelling on Inj. & Ext. Rem. 1370, and cases cited; People ex rel. Harless v. Hatch, 33 Ill. 9; Hall v. People, 57 Ill. 307; People ex rel. Hillard v. Davis, 93 Ill. 133.)

High, supra, says: “Tbe writ of mandamus being justly regarded as one of tbe highest writs known to our system of jurisprudence, it issues only when there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate-legal remedy. Tire right which it.is sought to protect must therefore be clearly established, and the writ is never granted in doubtful cases. And the person seeking the relief must show a clear legal right to have the thing sought by it done, and done in the manner and' by the person sought to be coerced.”

Judge Breese, in People ex rel. Harless v. Hatch, supra, uses the following language: “The writ of mandamus is a high prerogative writ, to be awarded in the discretion of the court, and ought not to issue in any case unless the party applying for it shall show a, clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced, and must be effectual as a remedy if enforced; and it must be in the power of the party, and his duty, also, to do the act sought to be done. It is well settled that, in a doubtful case, this writ should not be awarded. It is never awarded unless the right of the relator is clear and undeniable, and the party sought to be coerced is bound to act.” This language of Judge Breese is quoted in many subsequent decisions of the Supreme Court of Illinois. •

The Supreme Court of Illinois, in Hall v. People, supra, says: “A party cannot be compelled to perform an act unless it is made to- appear affirmatively that it is his clear duty to do so. The party that seeks to compel the performance of an act must set forth every material fact necessary to show that it is the plain legal duty of such party to act in the premises, before the courts will interfere. Any other rule would often do great injustice.”

The same court says in People ex rel. Hillard v. Davis, supra: “The petition must show on its face a clear right to the relief demanded by the relator. He must distinctly set forth all the material facts upon which he relies, so that the same may be admitted or traversed.”

(b) Such writ will never be issued to compel the performance of an act which would be useless, ineffectual or unavailing as a. remedy, or beyond the power or duty of respondent to perform. (High, Ext. Rem. Sec. 9, and cases cited; 2 Spelling, Inj. & Ext. Rem. Secs. 1377, 1439, and cases cited.) High, supra, says: “The writ, if granted, must also be effectual as a remedy, and it must-be within the power of the respondent, as well as his duty, to do the act in question.”

(c) The writ may, in the discretion of the court, be refused if laches or lotag delay in making the application appears, and there is no showing to explain or excuse its existence. (High, Ext. Rem. Sec. 30b; 2 Spelling on Inj. & Ext. Rem. Sec. 1382; State ex rel. Johnson v. Dyer, 99 Ind. 426; People ex rel. Beach v. Seneca Common Pleas, 2 Wend. 264; Mabley v. Judge of Superior Court, 41 Mich. 31, 1 N. W. 985; Chinn v. Trustees, 32 Ohio St. 236.)

(d) This hearing is upon a motion to quash an alternative writ, which “challenges both the sufficiency of the writ, and also^ the sufficiency of the affidavit upon which the writ is based.” (State ex rel. State Publishing Co. v. Hogan, 22 Mont. 384, 56 Pac. 818.)

Let us test the application and writ hy these rules, and ascertain whether they have been complied with.

The relators do not' show but that the motion for a new trial has heen submitted to the court below upon, the statement as settled, pursuant to the direction of this court (25 Mont. 367, 65 Pac. 106), and that such court has rendered its decision thereon. If these facts exist, relators' have no right to the writ. A peremptory writ would be useless and unavailing1 to the rela-tors, and performance of its commands would be beyond the power or duty of the court below. The only function of a statement on motion for a now trial in the court below- is to form the basis, on behalf of the party settling the same, of such motion. If this motion for a new trial has been heard and decided, the sole and only function of the statement is exhausted. The power of the court to thereafter amend or in any manner change or interfere with the statement so used is gone. The power not existing, no duty can be-charged against the court, because no duty to. perforin any act can exist unless the party to be charged therewith has power to perform it. Counsel for relators ingenuously argue that the burden is upon respondent to show that the motion for a new trial has been heard and decided, that the existence,of such facts would be a defense to the writ, and that relators cannot, therefore be charged with the duty of showing that such facts have no existence. We cannot agree that this doctrine is applicable to the proceedings under consideration. Under the law above stated, the relators must show a clear legal right to the writ, and the existence of a clear legal duty on the part of respondent to perform the act sought to be coerced. They must set forth all the material facts upon which they rely, so that the same may be admitted or traversed. If the facts were such as to raise a presumption that the motion for a new trial had not been heard and decided, then, perhaps, their non-existence should be affirmatively shown by respondent. However, the only presumption which could arise in this matter would be that the judge of the court belowi, in the ordinary exercise of his judicial duties, heard the motion for a new trial “at the, earliest practicable period after notice of the motion, and after the affidavits, bill of exceptions, or statement, as the case may be, are filed,” as provided by Section 1174, Code of Civil Procedure. This would be especially true in the proceeding before us, because this court (25 Mont. 367, 65 Pac. 106) directed such hearing to take place. We are therefore satisfied that relators should- have shown affirmatively, in order to entitle them to the writ askedi for, that the motion for a new trial had not been heard. An examination of the application and writ discloses that no showing of this character has been made.

From the foregoing statement of the case, it appears that the refusal of the court below to incorporate in the statement relators’ objections to the settlement thereof occurred nearly four years before this writ was applied for. No> excuse is offered for this long delay. If mandamus was the proper remedy (which we do not decide), it should have been applied for immediately upon the refusal of the court below to insert plaintiffs’ objections in the statement. At that time an investigation of the decisions of this court then reported would have disclosed plaintiffs’ right to have these objections inserted in the statement. Upon a. refusal of the court below, to allow their insertion, relators might have applied for the appropriate remedy to have the objections incorporated therein.

In Sweeney v. Great Falls & Canada Ry. Co., 11 Mont. 34, 27 Pac. 347, this court uses the following’ language: “The court should have heard any objections that the plaintiff might offer to the proposed statement, and incorporated the same in the statement. A record of the whole would have then been preserved for the review of this court on appeal.”

In Arnold v. Sinclair, 12 Mont. 248-261, 29 Pac. 1124, 1127, this court said: “If no notice of intention to move for a new trial was served and filed, or the same was not served in time, or the one among the files was not the one served, or other irregularity had occurred in reference to such notice, the objection should be urged in the court below as a reason for overruling the motion, and a statement o’f the grounds and facts supporting such objection should be made part of the statement of the case, and same could then be heard by the appellate court..”

This court practically bases its decision in 25 Mont., 65 Pac., supra, upon these two cases. The delay for nearly four years in mailing application for this writ was therefore inexcusable, and this court, in the exercise of its discretion above noted, is authorized to refuse the writ.

But again, relators applied for this alternative writ, and obtained the' order of this court granting it, -on August 22, 1901. They neglected to have it issued until August 24, 1903. Mandamus, like injunction, is an emergency writ, and its, purpose is to furnish a speedy remedy for some apparent wrong. “It must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law.” (Section 1962, Code of Civil Procedure.) Such delay violates the purpose and use of the writ. If the applicant may delay its issue two years after it has been granted, without showing any excuse for such delay, he may in like manner delay such issuance for an indefinite time. Tbe purpose of tbe writ is so apparent that any .unreasonable delay defeats its object.

Our conclusions upon tbe propositions above discussed being sufficient for a decision of the motion, we have not considered the other points raised and discussed. We advise that the motion to quash be sustained, and the proceedings be dismissed.

Pee Cueiaim.

For the reasons stated in the foregoing opinion, the alternative writ of mandamus is quashed, and the proceedings dismissed.


source: Caselaw Access Project

author: ME. COMMISSIONED POOKMAN Pee. CueiaM.

license: Public Domain

text:
    STATE, Respondent, v. MARTIN, Appellant.
    (No. 1,887.)
    (Submitted November 17, 1903.
    Decided December 21, 1903.)

      Criminal Law — Murder—Information—Leave to File — Discretion-Change of Venue — Prejudice of Inhabitants — Newspaper Articles — Disqualification of Juror — Requested Instructions — Degrees of Murder — Reasonable Doubt — Moral Certainty — Signature of County Attorney on Requested Instructions Given — Appeal—Harmless Error.

    t. Leave to file an information for murder, without a previous examination of tbe accused before a committing magistrate, should not be granted as of course, but rests in tbe sound discretion of tbe district judge on á proper showing.
    2. An application for leave to file an information against an accused, without a previous examination before a committing magistrate, need not set forth the facts, it being sufficient that reasons satisfactory to the district court were presented, without regard to the manner of the presentation.
    3. Penal Code, Section 2051, provides that a juror shall not be disqualified by reason of having formed an opinion founded on public rumor, statements in public journals, or common notoriety, provided it appears on his declaration under oath that he can and will act impartially on the matters to be submitted. that where a jury was obtained from a special venire after the regular panel had been exhausted, and the appeal record does not contain the examination of the jurors, nor any evidence as to whether any of the jurors selected had read or discussed, or heard read or discussed, any of the newspaper articles in question, the refusal of a change of venue for prejudice of the people of the county, based on certain newspaper articles prejudicial to defendant published in a newspaper circulated in the county, was not reversible error.

      4. under Act of February 15, 1901, Subd. 4 (Laws of 1901, p. 173), requested instructions are required to be signed merely for the purpose of identification, to be used by the court in mating up its charge to the jury; it is an irregularity, but not reversible error, for the court to permit the name and official title of the county attorney to be placed on instructions requested by him and given to the jury.
    5. where a court gave a proper definition of “reasonable doubt,” an instruction that the defendant is to be presumed innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown he is entitled to an acquittal, was not erroneous for failure to insert the phrase “beyond a reasonable doubt,” following the word “proved.”
    6.' where, in a prosecution for homicide, the court in a previous instruction had given correct definitions of murder in the first and second degrees, an instruction that, except as explained in previous instructions, the unlawful hilling must be accompanied with a deliberate and clear intent to take life, in order to constitute murder in the first degree; that the intent to kill must be the result of deliberate premeditation, and must be formed on a pre-existing reflection, and not on sudden heat of passion sufficient to preclude the idea of deliberation, was not error.
    7. It is not error to refuse to give requested instructions, the substance of which has been given in the court’s general charge.
    8. Where, in a prosecution for homicide, the court correctly defined t-he term “reasonable doubt,” it was not error to refuse an instruction containing a definition of moral certainty, the two terms being equivalent.

      Appeal from District Court, Silver Bow Countyj John B. McClernan, Judge.

    James MaRtiN was convicted of murder in tbe first degree. From tbe judgment, and from tbe order overruling bis motion for a new trial, defendant appeals.
    Affirmed.

      Messrs. Booth & Morrin, for Appellant.

      ■Mr. James Donovan, Attorneyi General, for tbe State.
   ME. COMMISSIONED POOKMAN

prepared tbe opinion for tbe court.

. :In tbis case, on- an unverified written application by tbe county attorney, leave of court was obtained and an information (Verified on information and belief was filed against tbe defendant and one Charles Lennox, without a previous examination vbefore a committing magistrate, charging defendants with mur-ider in) the first degree. A bench warrant was issued for the "arrest of; the defendants." It does not' appnar what became of the case against có-defendant Lennox, but a trial of tbe action resulted in a verdict of guilty of murder in tbe first degree as to tbe defendant Martin, and sentence of death was imposed. Defendant moved for a new trial, which was overruled. This appeal is from the judgment and from the order overruling the motion for a new trial.

Prior to the trial the defendant moved “to vacate and set aside” the order granting leave to file the information, for the reason that the application therefor did not state facts sufficient to constitute probable cause, was not sworn to, and that no examination of defendant had been had before a committing magistrate. ' This motion was overruled by the court. A motion to quash the information was then interposed on the same grounds, and the further ground that the information was not properly verified.

Obtaining leave to file an information without a previous examination of the accused before a committing magistrate is not a mere perfunctory matter which should be granted as of course, but rests in the sound discretion of the district judge, upon the showing made to him at the time. The facts, however, from which the court draws its conclusions that such leave should be' granted, need not be embodied in the application therefor. It is sufficient if reasons satisfactory to the court are presented, whatever may be the form, or manner of their presentation.

An abuse of discretion materially prejudicing a substantial-right of the accused would be ground for reversal, but no such abuse appears in this case; no such showing is made; and the appellate court cannot presume that the trial court exceeded its authority- or abused its discretion.

The questions raised on the motions in this case relate wholly to the written application asking leave to file the information, and to the verification of the information. These questions have ' all been foreclosed and decided adversely to. the contentions of appellant by former decisions of this court; and the district ■court did not err in overruling the motions. (State v. Shafer, 26 Mont. 11, 66 Pac. 463; State v. Bowser, 21 Mont. 133, 53 Pac. 179; State v. Clancy, 20 Mont. 498, 52 Pac. 267; State v. Mansfield, 19 Mont. 483, 48. Pac. 898 ; State v. Brett, 16 Mont. 360, 40 Pac. 873; State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026; State v. Little Whirlwind, 22 Mont. 425, 56 Pac. 820; State ex rel. Nolan v. Brantly, 20 Mont. 173, 50 Pac. 410.)

Subsequently, and before trial, defendant filed bis petition for a change of place of trial, on the ground of prejudice of the people of the county where the action was pending, and undue influence exerted by the prosecution over the minds of the people of that county. The affidavit of defendant wias filed in support of the petition. The petition and affidavit in support thereof are based) upon certain articles, alleged to be prejudicial to defendant, appearing in a newspaper published and circulated in that county. The facts relative to these articles were known to the appellant prior to the trial. ■ It appears from the record that the regular jury panel was exhausted, and that a special venire was issued before a jury was obtained. The record, however, does not contain the examination of the jurors on their voir dire, nor does the record contain any evidence or statement, either by affidavit or otherwise, as to whether any of the jurors selected had ever read or discussed, or heard read or discussed, any of the newspaper articles in question. A juror could not be prejudiced against defendant by reason of the articles complained of, unless he had some knowedge of their existence and contents. Neither does it appear fium the record that any juror was challenged. This court cannot presume disqualification on the part of trial jurors merely from the fact that an article prejudicial to defendant was published in a newspaper having a circulation in the county where the action was tried.

Section 2051 of the Penal Code provides in part: “But no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety, provided it appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding.such opinion, aet impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must- be entered in the minutes of the court or of the stenographer.” This statute and similar statutes have been considered, both as to their meaning and constitu-. tionality, by prior decisions of this court, and under these decisions, and the facts above stated, the objection of the appellant to the action of the trial court in overruling the application’ for change of venue is not-well taken. (Territory v. Bryson, 9 Mont. 32, 22 Pac. 147; State v. Sheerin, 12 Mont. 539, 31 Pac. 543, 33 Am. St. Rep. 600; State v. Russell, 13 Mont. 164, 32 Pac. 854. See, also, Spies v. Illinois, 123 U. S. 131, 8 Sup. Ot. 21, 31 L. R. A. 80; State v. Mott, 29 Mont. 292, 74 Pac. 728.)

It is further claimed that the court erred in permitting the name and official title of the county attorney to be placed on the instructions given to the jury.

Subdivision 4 of the Act of February 15, 1901, provides, in substance, that, if either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party or his attorney, and delivered to the court; that the counsel shall have reasonable opportunity to argue to the court any instructions offered; that the court shall give each instruction as requested, or refuse to do so, or give the instruction with a modification, and shall mark or pass upon each instruction so offered in such manner that it shall distinctly appear what instructions were given in whole or in part, and in like manner if it is refused or modified. All instructions given by the court must be filed together, with those refused, as a part of the record. (Session Laws 1901, p. 173.) If this law means that the precise papers containing the requested instructions are to be given to the jury and taken by them to the jury room, it would follow that in case of a modified instruction the jury would have both the original requested instruction and the modification thereof as given by the court. Such is not tbe meaning of tbe law. Instructions axe given by tbe court, not by tbe parties. Tbe requested instructions are required to be signed -by the party as a matter of identification. They are then given to tbe court, to be considered by it in preparing tbe instructions which it gives to tbe jury, after which they are marked, as required by tbe law, and are filed with other papers in tbe case. This very' point appears to have been one- of tbe assignments of error in State v. McDonald, 27 Mont. 230, 70 Pac. 724. Tbe court in that ease says: “We do not find any error made by tbe court. We add, however, that tbe submitting of written instructions to- tbe jury, with tbe signatures of tbe several counsel attached to- them, as. in this case, is not .to be commended.” This case, however, was tried prior to tbe decision in State v. McDonald, supra, and we cannot say that tbe error complained of was more than- an irregularity. It is insufficient to justify a reversal of tbe case.

Tbe appellant objects to instructions Nos. 3, 6, 14 and 19, given by tbe court, and further objects to tbe refusal of tbe court to give certain instructions requested by the defendant.

In instruction No-. 1 tbe court told the jury that tbe plea of not guilty on tbe part of tbe defendant required proof, on tbe part of tbe prosecution, of all tbe material allegations contained in tbe information, beyond a reasonable doubt.

Instruction No-. 2 is to tbe effect that tbe fact that defendant bad been accused and informed against was of itself no evidence of guilt, and: that no juror should permit himself to be influenced against tbe defendant because of or on account of tbe information in the case.

Instruction. No. 3 is in tbe following language: “You are instructed that tbe defendanat in a criminal action is presumed to be innocent until tbe contrary is proved, and, in case of a reasonable doubt whether bis guilt is satisfactorily shown, be is entitled to acquittal.”

In instruction No. 4, tbe court gave tbe definition of reason-, able doubt as contained in Territory v. McAndrews, 3 Mont. 158, and which was taken from Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dec. 711, and Commonwealth v. Costley, 118 Mass. 1, and which has been repeatedly indorsed by this court in subsequent decisions. (State v. Gibbs, 10 Mont. 213, 25 Pac. 289, 10 L. R. A. 749; State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am St. Rep. 655; State v. Harrison, 23 Mont. 79, 57 Pac. 647; State v. Bristol, 21 Mont. 578, 55 Pac. 107; State v. Clancy, 20 Mont. 498, 52 Pac. 267; State v. Vineyard, 16 Mont. 138, 40 Pac. 173.)

The specific objection appellant makes to the third instruction is that the phrase “beyond.a reasonable doubt” does not immediately follow the word “proved” as the same appears in the instruction. The presumption of innocence in a criminal case is a condition existing which must be overcome by evidence beyond all reasonable doubt; when so overcome it disappears — ■ not before. The phrase “beyond a. reasonable doubt” nominates the quantity, quality and kind of evidence necessary to overcome this presumption of innocence, and it is itself the condition of the mind resulting from this evidence. It has been held that the presumption of innocence is evidence introduced by the law in favor of the accused. (Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. 394, 39 L. Eld. 481.) This presumtion may have the effect of evidence, in that it must-be overcome by evidence; but, strictly speaking, it cannot be evidence, nor can it be introduced in the case, for it is in the case from its inception. It needs no introduction. It is the safeguard which the law casts around all persons accused of crime, and the defendant cannot be reached by a verdict of guilty until this safeguard is entirely removed. This removal can only be accomplished by evidence which satisfies the minds of the jurors beyond a • reasonable doubt. The presumption of innocence is in effect the very thing against which the prosecution is directed.

Instruction No. 3 is a verbatim .copy of Section 2072 of the Penal Code, and-is, when read in connection with instruction No. 4, substantially the same in form and meaning as the instruction requested by the defendant. This instruction No. 3 is therefore not open to the objection made by appellant.

Instructions 1, 2, 3 and 4, given, are practically tbe same as the instruction quoted in State v. Harrison 23 Mont. 79, 57 Pac. 647, wbicli the trial court refused to give, and which refusal this court held was error. In the last case no> instruction was given telling the jury that the defendant w’as presumed to be innocent.

Instructions numbered 6 and 19 are copies of Sections 352- and 41, respectively, of the Penal Code, and the giving of these instructions in this case was not error.

Instruction No. 14 is in the following language: “Except as explained in the the instructions, the unlawful killing must be accompanied with a deliberate and clear intent to take life, in order to constitute murder of the first degree. The intent to kill must be the result of deliberate premeditation; it must be formed upon a pre-existing reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation/’’ In the preceding instruction the court gave correct definitions of murder in the first degree and murder in the second degree. Instruction No. 14, above quoted, is the same as the first half of the erroneous instruction quoted in State v. Shafer, 22 Mont. 17, 55 Pac. 526, except that the instruction in the case at bar is preceded by a reference to other instructions, which does not appear in the Shafer instruction. To the Shafer instruction is also added this further statement:; -“.It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on-the part of the slayer, and if such is the case the killing is murder in the first degree.” The instruction in the Shafer Case was held erroneous by reason of this latter clause being added to' it j that it was not a correct definition of murder in the first degree, for the reason that it did not contain the words “malice aforethought.” The only part of the instruction, however, which the court held erroneous in the Shafer Case is that last quoted, and the court then expressed some doubt as to whether “this error standing alone would be considered sufficient to authorize a reversal of the case.” We do not find any error in the action of the court in giving this instruction, but will add that instruction No. 14 would be insufficient but for tbe fact of supplementary instructions used in connection witb it, which cure the omissions apparent in it.

The instructions asked for by the defendant were given in substance, with one single exception, which will be noted herein. “It is not error to refuse to give instructions asked for, however correct or applicable, if they have in substance already been given in the charge of the court.” (Territory v. McAndrews, 3 Mont. 158.) One of the instructions requested by the defendant which was not given by the court contained a definition of “moral certainty.” None of the instructions given contained a definition of this term. If such definition is necessary, it was error in the court to refuse an instruction giving’ a proper definition.

It is difficult to define either “reasonable doubt” or “moral certainty” in terms more definite or comprehensive than the phrases themselves. In one of the many definitions given in Bouvier’s Law Dictionary, we find “moral certainty” defined as “such certainty as convinces beyond a ‘reasonable doubt,’ ” and one of the definitions of “beyond a reasonable doubt,” “it is proof to a moral certainty.”

In State v. Harrison, 23 Mont. 79, 57 Pac. 647, the instruction approved of by this court defines “reasonable doubt” as “an abiding conviction to a moral certainty.” Likewise, in State v. Gleim, 17 Mont. 17, 41 Pac. 998, 31 L. R. A. 294, 52 Am. St. Rep. 655, in the instruction suggested, “moral certainty” is defined as proof so convincing that the juror would act upon it in matters of the highest concern and importance to his own interest. It is apparent that these definitions of “reasonable doubt” and of “moral certainty” are practically identical, for if a juror has no reasonable doubt of the truth of a fact, he should certainly not hesitate to act upon it. The law cannot take notice of unreasonable doubts.

In Commonwealth v. Costley, 118 Mass. 1, the court says: “The phrase ‘moral certainty’ has been introduced into our jurisprudence from the'publicists and metaphysicians, and signifies only a very high degree of probability. * * * .Proof 'beyond a reasonable doubt’ is not beyond all possible or imaginary-doubt, but such, proof as precludes every reasonable hypothesis except that which it tends to support. It is proof 'to a moral certainty,’ as distinguished from an absolute certainty. As applied to a judicial trial for crime, the two phrases are synonymous and equivalent; each has been used by: eminent judges to explain the other; and each signifies such proof as satisfies the judgment and consciences of the jury, as reasonable men, and applying their reason to the evidence before them, that the crime charged has been committed by the defendant, and- so satisfied' them as to leave no other reasonable conclusion possible.” ■

If these terms are synonymous and equivalent, it necessarily follows that a, definition of the one is a definition of the other. It is possible always to question, and with some show of reason, any deduction made or conclusion reached from metaphysical speculation. The definition of "moral certainty” given in the refused instruction contains this statement: “Is the juror so convinced by the evidence of the truth of the fact sought to be proved that he himself would venture to act upon such conviction in matters of the highest concern and importance to his own interest ?” This is in effect weighing the evidence in the case in the same manner and with the same standard that jurors would weigh evidence touching their own financial and other interests. It might be said with some degree of reason that human life is too sacred to be weighed in the coarse balances by which men adjust even the most important affairs of life— "scales which are turned at the touch of a bare preponderance,' by which the issues are determined, but which are not sensible to the finer elements of purpose and intent which lie hidden in act and deed” — and it is doubtful if any deduction can be made or any definition given of the term “moral certainty” which could not be criticised. Certainty and stability in the-rules governing judicial proceedings, however, should never be-sacrificed to'undue nicety in phraseology and too great critical exactness in the use of words. (Territory v. Bannigan, 1 Dak. 451, 46 N. W. 597.) In State v. Gleim, supra, tbe court says, “If the definition of ‘moral certainty’ is to- be given at all”— then follow suggestions as to- what it should be; and while it is not error to give the proper definition of “moral certainty,” we cannot conclude that the rights of the defendant have been invaded, or that he has been prevented fromi having a fair trial, merely because the. court did not specifically define the term, “moral certainty,” as a proper definition of the term “reasonable. doubt” was given, as in the McAndrews Case.

We recommend that the judgment and order appealed from be affirmed.

Pee. CueiaM.

Eor the reasons stated in the foregoing opinion, the judgment and order appealed from are affirmed.

Rehearing denied January 16, 1904.


author: MR. JUSTICE HOLLOWAY

text:
    In re FORD’S ESTATE.
    (No. 1,723.)
    (Submitted December 8, 1903.
    Decided December 21, 1903.)

      Probate Laiu — Special Administrators — Compensation ■ — ■ Powers — Settlement of Final Account — Expenses Allowed— Appeal — Presumption.
    1. Tbe court has a discretionary power to grant a special administrator compensation for his services, although no provision therefor is made ¡ by the Code of Civil Procedure.
    2. On appeal from an order allowing the finál account of a special administrator, where the record fails to show whether sales of personal property, were made pursuant to order of the district court, but the transcript does not purport to contain copies of all the papers in the case, it must be presumed, in the absence of anything to the contrary, that the sales were made according to law and were properly approved by the district court.
    3. The Code of Civil Procedure limits the functions of a special administrator to the exercise of powers necessary to collect and preserve the estate for the executor or administrator to be regularly appointed.

      4. On appeal from an order approving the final account of a special administrator, where no contention is made by appellant of the laclt of evidence to justify the approval, and the record shows that the various items of expense were incurred on behalf of the estate and that the special administrator had vouchers for the same, such items cannot be considered, unless upon the face of the account they appear to be such as should not have been allowed in any case.
    5. Since Code of Civil Procedure, Sections 2500-2506, providing for special administrators, give them no power to have appraisers appointed, and since the provisions of the Code requiring appraisers to be appointed do not apply to special administrators, expenses incurred by a special administrator in the appointment of appraisers were improperly allowed to him in his final settlement.
    6. Since Code of Civil Procedure, Sections 2500-2506, relative to special administrators, give them no power to pay the debts of the estate, and since the provisions of the Code requiring notice to creditors do not apply to special administrators, a special administrator cannot pay the debts of the estate, nor limit the time for the ’ presentation of claims by any notice ' which he might give, and should not receive credit on his final account for expenses incurred by him in publishing notice to creditors.
    7. A special administrator is not entitled, on his final settlement) to an allowance for the amount expended by him in procuring a revenue stamp for his bond.

      Appeal from. District Court, Deer Lodge County; Welling Napton, Judge.

    IN the matter of the estate of Thomas Ford, deceased. On objections by Con. Hayes, executor, to the final account of R. De B. Smith, special administrator. From an order allowing the account, executor appeals.
    Modified.

      Mr. John J. Mediation, for Appellant.

      Mr. ÍL. B. Whitehall, for Respondent.
   MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In April, 1900; Thomas Ford died, leaving a will by the teisms of which the appellant, Con. Hayes, was nominated executor. The appellant presented to the district court a petition for the probate of the will and for his appointment as executor, to which petition objections were filed; and it appearing to the district court that delay would ensue in granting letters testamentary or of administration, and that it was necessary that some one be authorized to collect and take charge of the estate of decedent, the court, on May 30, 1900, appointed the respondent, B. De B. Smith, special administrator, who immediately qualified and entered upon the discharge of his duties. Thereafter, on April 23, 1901, the will of the deceased was admitted to probate, and letters testamentary were issued to the appellant, Hayes. Thereupon the court directed the special administrator to file his final account, which was done on May 2, 1901. To this account the executor/filed written objections. A hearing was had, the objections overruled, and the account allowed. From the order .'allowing the account the executor appealed.

The record shows that the special administrator sold certain personal property, consisting -of range horses and hay, to the amount of $571.90, and collected other sums of money belonging to the estate, making his total receipts $807.74; that he-paid ■out for various items of expense $806.10. . These items of expense are for attorney’s fees, clerk’s fees, compensation to special administrator, expense of caring for the property, and taxes; also 50 cents for internal revenue stamps on bond, $6 paid for publishing .'notice to creditors, $15 paid to appraisers, $5 paid for carriage for the use of the appraisers, $6 for one day’s work of the special administrator in having the appraisers appointed, and $6 for one day’s service of the special administrator in meeting with the appraisers. Exception is taken to all of the items of expense, except the attorney’s fees, taxes, and commission allowed the special administrator.

Most of the items of expense are for disbursements made by the special administrator in collecting, taking charge of, and caring for the property of the estate, and, as it was situated in five different counties, we cannot say that the expenses incurred were unreasonable, or that the district court abused its discretion in allowing them.

Objection is made to the amount allowed the special administrator as • compensation for his services. The Code of Civil Procedure makes no provision for the compensation of a special ■ administrator, but it cannot be presumed that the law contemplates that such services shall be rendered gratuitously. We prefer to adopt the views of the Supreme Court of California on this subject, as disclosed in In re Moore’s Estate, 88 Cal. 1, 25 Pac. 915. It is there said: “The Code of Civil Procedure does not malee any special provision for the compensation of a special administrator, but leaves it to the discretion of the court in the settlement of his account.” Considering the fact that’the special administrator was in charge of this property for a year, we cannot say that the allowance made to him was excessive.

With reference to the receipts, the record fails to disclose whether such sales of personal property were made pursuant to the order of the district court. The transcript does not purport to contain copies of all the papers in the case, and, in. the absence of a showing to the contrary, we must presume that such sales were made according to law, and that they were properly approved by the district court.

No contention is made by the appellant of the lack or insufficiency: of evidence to justify the order of the court in approving this account. The record does show that the various items of expense were incurred on behalf of the estate, and that the special administrator had vouchers for the same. We are therefore precluded from considering any of these items, unless upon the face of the account they appear to be such as should not have been allowed at all. The powers, duties and liabilities of a special administrator are specifically provided for in Sections 2500 to 2506 of the Code of Civil Procedure. With reference to these powers this court has said: “It has been established by the decisions of this court that the jurisdiction of the 'district court sitting in probate matters is limited to the powers conferred upon it by statute, that is, to the control of the ‘adininis-tration of decedents’ estates, the supervision, of the guardianship of the infant's, the control of their property, the allotment 'of dower and other powers pertaining to the same subject.’ In re Higgins’ Estate, 15 Mont. 474, 39 Pac. 506, 28 L. R. A. 116. * .* * The powers of a. special .administrator áre limited. He is ‘to collect and take charge of the estate of the decedent * * * and to exercise such other powers as may be necessary for the preservation of the estate.’ Section 2500, Code of Civil Procedure. Again, the statute authorizes him to collect and preserve for the executor or administrator all incomes, rents, issues and' profits, claims and demands, of the estate; he must take charge and management of, enter upon, and preserve from damage, waste and injury, the real estate, and for any such and all necessary purposes may commence and maintain or defend suits and other legal proceedings as an administrator. He may sell perishable property in certain instances, and ‘exercise such other powers as are conferred upon him by his appointment, but in no case is he liable to an action by any creditor.’ Section 2504, Code of Civil Procedure. These statutes limit the functions of a special administrator to the exercise of powers necessary to collect and preserve the estate for the executor or administrator to be regularly appointed. The enumeration of particular powers, such as to sell such perishable property as may be ordered sold, and to collect rents, etc., is but to enable a special administrator to collect and preserve what otherwise might not be collected and preserved for the estate by any one in authority. The authority ‘to exercise such other powers as are conferred upomhim by his appointment’ is but a further power to do¡ what may be necessary to collect and preserve; it is not a power to exercise the powers and duties conferred upon a regular executor or administrator, such as the allowance or payment of claims.” (State ex rel. Bartlett v. Dist. Court, 18 Mont. 481, 46 Pac. 259; In re Moore’s Estate, supra.)

In the absence of any statute requiring the special administrator to have appraisers appointed, all expenses incurred by him, or allowances made to himi on account of such appraisers, were not justified, and should not have been allowed. Neither should the special, administrator receive credit for the expense incurred by him in publishing notice to creditors. He could 'not pay the debts of the. estate; therefore he could not limit the time for the presentation of claims against the estate by any notice wbicb be might have given. The provisions of the Code requiring appraisers to be appointed, and notice to creditors to be given apply to- administrators and executors regularly appointed as such, and are not applicable to special administrators. ’ Neither was the court justified in allowing him the expense of procuring a -revenue stamp' for his bond.

The cause is remanded to the district court, with directions to modify the order by disallowing the items heretofore referred to, aggregating $38.50, and, when so modified, that it be affirmed.

Modified and affirmed.


author: ME. COMMISSIONED POOEMAN Pee Cueiam:,.

text:
    STAGG & CONRAD, Respondents, v. ST. JEAN, Appellant.
    (No. 1,735.)
    (Submitted December 9, 1903.
    Decided December 23, 1903.)

      Account — Gontracts -— Merger — Estoppel — Actions — Evidence — Verdict—Harmless Error.

    1. Where, in an action on account for merchandise, the account showed that defendant had been credited with the price of certain halter chains sued for, the refusal of the court to strike such item from the account and the introduction of the account in evidence containing such item was harmless.
    2. In an action on an account, refusal of the court to strike out certain items which were disputed was not error.
    3. In an action on an account for a hot air plant installed in defendant’s building, the exclusion of the catalogue issued by the manufacturers of the plant, introduced for the purpose of showing the heating capacity thereof, was proper, the evidence being at most hearsay.
    .4. Where in an action on an account an error of a few dollars appeared to have been made by plaintiff in the account pleaded, and the verdict was the same in amount as the principal sum demanded in the complaint, but by reason of plaintiff’s demand for interest it could not be determined whether the jury found for plaintiff for a principal sum less than that demanded, and then added interest or not, and interest on the amount demanded computed at the legal rate from the date the action was commenced until the rendition of the verdict, if allowed, would amount to more than the admitted error in the account, the error, if any, was harmless.

      5. where there is evidence to support a general verdict on all the iacts submitted to. the jury, the verdict will not, on appeal, be disturbed.
    6. An “account stated” is, in effect, an admission of indebtedness.
    7. W'here defendant contended that a third contract had never become operative by reason of plaintiff’s failure to comply with conditions precedent, defendant could not object that an implied contract on which plaintiff's first cause of action was based and a written contract alleged to support his second cause of action were merged in such third contract.
    8. Where defendant contended that a third contract executed between the parties had never matured by plaintiff’s failure to perform conditions precedent, defendant could not urge such third contract as an estoppel to prevent plaintiff from maintaining an action on previous contracts.

      Appeal from District Court, Deer Lodge County; Welling Napton, Judge.

    ActioN by Stagg & Conrad against E1. L. St. Jean. From a judgment in favor of plaintiffs, and from an order overruling a motion for a new trial, defendant appeals.
    Affirmed.

      Mr. H. B. Whitehall, for Appellant.
    Tbe language of a contract should be interpreted most strongly against tbe party who caused the uncertainty to- exist. The p-romissor is presumed to be suck party. (Civil Code, Sec. 2219; Keith v. Elec. Engineering Oq., 136 Cal. 178.)
    There was an implied condition in thf.^ — as there is in every building contract, that the work when eoJ/. u-ted will be reasonably useful for the usual purpose for which such work is constructed. (Lloyd on Building Contracts, Sec. 29; 29 Ehcy. of Law, p-. 890, Div. VII; 2 Benjamin on Sales, Sec. 988, p. 865, and note 35; 1 Parsons on Contracts, 7th Ed., Sec. 586; 6 Am. Dec. note on page 115; Rodgers & Co. v. Niles & Co., 11 Ohio. St. 48 ; Smith v. Brady, 17 N. Y. 173; Hoult v. Baldwin, 67 Cal. 610; Taft v. Inhabitants of Montague, 14 Mass. 281; Kimball Mfg. Co-. v. Vrooman, 35 Mich. 310; Franhlin v. Schultz, 23 Mont. 165; Riddell v. Peck, etc. Heating Co., 69 Pac. 241; Civil Code, Sec. 2377.)
    Where a negotiable instrument is delivered as an escrow, no title passes until the condition has been performed. (1 Edwards on Bills and Notes, Sec. 243; 29 Ehcy. of Law, p. 867, Div. VIII; Chadwick v. Totem, 9 Mont. 364; Talbot v. Heinze, 25 Mont. 4.)
    Tbe eveidence required of tbe witness Littler was not hearsay. (Code of Civil Procedure, Secs. 3144, 3146, Div. 15; Railway Co. v. Warren, 6 Mont. 275; Holland v. Huston, 20 Mont. 84; Emerson v. Bigler, 21 Mont. 205.)

      Messrs. Rodgers & Rodgers, for Eespondents.
   ME. COMMISSIONED POOEMAN

prepared tbe opinion for tbe court.

Tbis is an appeal from a judgment in favor of plaintiffs and from an order overruling' defendant’s motion for a new trial. Tbe action was brought in tbe district court recover a certain sum alleged to be due tbe plaintiffs for articles of merchandise sold by them to tbe defendant, and for a certain other sum claimed to be due plaintiffs on a contract for tbe erection and construction of a hot air system installed in a building known as tbe “St. Jean Block,” situated in tbe city of Anaconda. A trial by jury was bad, which resulted in a verdict for plaintiffs, and judgment was entered thereon.

Tbe brief of appellant specifies as errors, first, that tbe court erred in refusing to strike out from plaintiffs’ account tbe item for two baiter chains. It appears from, tbe evidence that tbe amount charged for these baiter chains, to-wit, tbe sum of 70 cents, bad been paid by tbe defendant, and that be bad been given credit therefor, and a receipt issued to him. Both tbe charge and tbe credit appeared upon tbe itemized account of tbe plaintiffs introduced in evidence. Tbe appellant was not injured by tbis evidence.

Tbe second error assigned by appellant is that tbe court erred in refusing to strike out from plaintiffs’ account certain other items appearing therein. These items were a part of tbe bill of plaintiffs, which was disputed by tbe defendant, and tbe motion to strike out was properly overruled.

Tbe third error assigned is that tbe court erred in not permitting tbe defendant to introduce in evidence tbe catalogue issued by the manufacturers of tbe bot air plant which was installed in said building; the defendant seeking to show therefrom the heating capacity of the furnace so installed. If this is any evidence at all, it is only hearsay, and could not be admitted over objection. We cannot discover that the court committed any error in any of these matters.

The brief of appellant makes some statements about the evidence not being sufficient to sustain the verdict, and contains further allegations that there was an account stated between the parties. It is doubtful if either of the last two specifications are properly assigned as errors under the decisions in Rehberg v. Greiser, 24 Mont. 487, 62 Pac. 820, 63 Pac. 41, and Babcock v. Caldwell, 22 Mont. 460, 56 Pac. 1081. We have, however, examined the evidence, and find a substantial conflict on all matters disputed. An error of a few dollars appears to have been made by plaintiffs in the account pleaded in their first cause of action. The verdict of the jury is the same in amount as the principal sum demanded in the complaint. But the plaintiffs, in addition to the principal sum, demanded interest, and, the verdict being a general one, we cannot determine whether the jury found for the plaintiffs for a principal sum less than that demanded and then added interest or not. Interest on the amount demanded computed at legal rate from the date the action was commenced until the rendition of the verdict would, if allowed, amount to more than the admitted error in the account. The verdict is a finding by the jury on all the facts submitted to it, and there is evidence to support the finding.

It is claimed by appellant that the implied contract on which plaintiffs’ first cause of action is based and the special written contract alleged in the second) cause of action were, by the consent of 'the parties, merged in a third contract, expressed in writing, which wias to become effective on certain conditions, and which instrument was left in escrow to be delivered to plaintiffs when the conditions were complied with. This writing was not delivered to' plaintiffs on their demand. therefor for the reason that the defendant insisted that tbe conditions bad not been complied with, and had notified the escrow holder thereof not to deliver it on that account. It was, in effect, an executory contract to take effect oh the happening of certain contingencies which Were necessary to- give it life, and which the appellant insists never happened.

The appellant cannot complain that plaintiffs did not base their action on a contract which appellant insists cannot become operative. An “account stated” is, in effect, an admission of indebtedness. (Voight v. Brooks, 19 Mont. 374, 48 Pac. 549; Hendy v. March, 75 Cal. 566, 17 Pac. 702; Johnson v. Tyng, 1 App. Div. 610, 37 N. Y. Supp. 516; Davis v. Seattle National Bank, 19 Wash. 65, 52 Pac. 526.) Ih the case at bar the defendant denies all5 indebtedness.

Neither can the appellant urge this third contract as an es-toppel, and at the same time deny that it ever became effective as a contract between the parties.

We have found no reversible error in this case, and therefore recommend that the judgment and order appealed from be affirmed.

Pee Cueiam:,.

Por the reasons stated in the foregoing opinion, the judgment and order appealed from are affirmed.


author: MR. COMMISSIONER,- CALLAWAY Pee Cueiam.

text:
    STATE, Respondent, v. MOTT, Appellant.
    (No. 1,946.)
    (Submitted November 17, 1903.
    Decided December 23, 1903.)

      Criminal Law — New Trial — Constitution — Impartial Jury— Prejudice of Juror — Statutory Construction — Affidavits— Appeal — Review.
    1. under Constitution, Article III, Section 16, an “impartial jury” must be composed of twelve impartial men; a number less than' that will not suffice.

      2. The construction put upon a statute by the decisions of the courts of the state from which it is borrowed will not be followed where it appears that such decisions are founded on unsound reasoning, or will tend to the denial of a constitutional right.
    3. Penal Code, Section 2192, provides that a new trial may be granted to a defendant * * * “where the jury has * * * been guilty of any misconduct by which a fair and due consideration of the case has been prevented * * Held that the fact that a juror, when sworn, was biased and prejudiced against the defendant, which fact he concealed upon his voir dire examination, and which neither defendant nor his counsel discovered until after verdict, was ground for a new trial under the statute.
    4. Penal Code, Section 2051,■ providing that “no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury; founded upon public rumor, statements in public journals, or common notoriety, provided it appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him,” is not unconstitutional as not granting to the accused in a criminal prosecution a “trial by an impartial jury.”
    5. while it is imperative that the accused shall have a trial by an impartial jury, nevertheless, after verdict, efror will not be presumed, and it is incumbent on the accused to make it appear affirmatively that he is entitled to a new trial by reason of having been deprived of this constitutional right; mere possibility, or even probability, that one of the jurors was incompetent is not sufficient to overthrow the verdict.
    6. In the absence of a clear showing of an abuse of discretion by the trial court in passing on a motion for a new trial based upon the alleged incompetency of a juror, the appellate court will not interfere.
    7. Where the record on appeal does not contain the judgment, the appeal is subject to dismissal on motion.

      Appeal from, District Court, Missoula County; F. C. Webster, Judge.

    Louis H. Mott was convicted of murder in the first degree. From the judgment and from an order denying his motion for a new trial, he appeals.
    Affirmed.

      Mr. Joseph, K. Woody, and Messrs. Woody & Woody, for Appellant.
    When the juror Coleman made -the statements which are charged against him by the affidavits of -Angst, Sherman and Cavanaugh, and then concealed them by false answers given on his examination on his voir dire, this constituted misconduct within the meaning of Subdivision 3, Section 2192, Penal Code,. and- the verdict should be set aside and a new trial granted. {United States v. Upham, 2 Mont. 170; Territory
      y. Kennedy, 3 Mont. 520; Lane v. Scoville, 16 Kan. 402; State v. Morgan (Utah), 64 Pac. 356; State v. Miclcle (Utah), 170 Pac. 856; State v. Wright (Iowa), 84 N. W. 545; People v. Turner, 39 Oal. 370; State v. Anderson, 14 Mont. 547; Boltins v. Ames (N. H.), 9 Am. Dec. 79; Nomaque v. People, (Ill.), 12 Am. Dec. 157-159; State v. Shelleday, 8 Iowa, 508-509 ; Jeffries v. Bandall, 14 Mass. 205-206; Gaff v. State, 155 Ind. 277, also reported in 80 Am. St. Rep. 235; Rhodes v. State (Ind.), 27 N. EL 686; Smith y. State (Ark.), 43 Am. St. Rep>. 20; State v. Nash (La.), 13 So. Rep*. 732, 734; Sellers v. People, 4 Ill. 412; Vennwm v. Uarwool, 6 Ill. 659; Childress r. Ford, 18 Miss. (10 SL & N.) 25; Maxwell, Or. Procedure, p>. 648; Hill v. People, 16 Mich. 357; Johr v. People, 26 Mich. 429;' State v. Taylor, 64 Mo. 358; State v. Wyatt, 50 Mo. 309 ;Hewrie y. State, 41 Tex. 573'; Sam v. State, 31 Miss. 480; Busiclc v. State, 19 Ohio; 198; Chartz r. Territory (Ariz.), 32 Pac. 166; Moncrief v. State, 59 Ga. 470; Bomaine v. State, 7 Ind. 63; People y. Beece, 3 Utah, 72; United States v. Christensen, 7 Utah, 26; 1 Bishop; Or. Procedure, Sec. 949 b and note 1; 12 Eincy. PI. & Pt. pp. 456, 457; State y. Reddy, 44 Kan. 700 ; People y. Plummer, 9 Oal. 299; Constitution of Montana, Art. Ill, Sec. 16; Bishop' on Ctim. Proc., 3rd Eld., Sec. 113; State v. Prescott, 7 N. H. 287; People v. Backus, 5 Oal. 275; People y. Thornton, 74 Oal. 482; People v. Brani-gan, 21 Oal. 338; Weis v. State, 22 Ohio St. 486; State v. Dolling, 37 Wis. 396; Lewis v. State, 9 Standes & M. 115; Davis v. State, 35 Ind. 496; Westmoreland v. State, 45 Ga. 225; Oregon y. State, 26 Miss. 78; 1 Bish. Or. Procedure, See. 999 and note 3; Black v. State, 100 Ind. 357; Zimmerman v. State, 115 Ind. 129, 17 N. E. 258; Rhodes y. State, 128 Ind. 189, 25 Amu St. Rep-. 429, 27 N. E. 886.)

      Mr. James Donovan, Attorney General, for the State.
    Our Section 2192 was taken from California, and after it hadl been construed by the supreme court of that state. • By adopting said section we have, therefore, under a long line of authorities of this court, adopted tbe construction placed upon it by tbe Supreme Court of California. (Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057; State v. Metcalf, 17 Mont. 417, 43 Pac. 182; State v. O’Brien, 18 Mont. 1, 43 P'-ao. 1091; Largey v. Chapman, 18 Mont. 563, 46 Pac. 808; Sharman v. Huot, 20 Mont. 557, 52 Pac. 558.)
    Another principle announced by tbis court in tbe cases above cited, pertinent to tbis case, and really determinative of it, is that where there is a conflict between tbe affidavits in support of a motion for a new trial, and those in opposition thereto, and the district court has passed on the motion, its action will not be disturbed unless an abuse of such discretion is clearly shown. (State v. Burgess, 8 Mont. 82; State v. Anderson, 14 Mont. 547.)
   MR. COMMISSIONER,- CALLAWAY

prepared the opinion for the court.

The defendant, Louis H. Mott, stands convicted of the crime of murder in the first degree. His motion for a new trial has been overruled. This appeal is from the order denying the motion, and from the judgment entered upon the jury’s verdict!

The ground upon which the motion for a new trial was based is that the defendant was not tried-by an impartial jury, in that one Coleman, when sworn as a juror, was biased and prejudiced against the defendant, which fact he concealed upon his voir dire examination, and which neither defendant nor his counsel discovered until after the verdict was rendered.

At the very outset of this inquiry we are confronted with this question: Is such disqualification of a juror in a criminal case ground for a new trial under our statute ?

Section 2192 of the Penal Code declares: “When a verdict has been rendered against the defendant, the court may, upon his application, grant a new trial in the following cases only: (1) When the trial has been had in his absence, if the indictment or information is for a felony. (2) When the jury has received out of court any evidence other than that resulting from a view1 of tbe premises, or any communication, document or paper referring to tbe case. (3) When tbe jury bas separated without leave of tbe court, after retiring to deliberate upon tbeir verdict, or been guilty of any misconduct by wbicb a fair and due consideration of tbe case bas been prevented. (4) When tbe verdict bas been decided by lot, or by any means other than a fair expression of opinion on tbe part of all tbe jurors, wbicb may be shown as provided in tbe Code of Civil Procedure. (5) When tbe court bas misdirected tbe jury in a matter of law, or bas erred in tbe decision of any question of law arising during tbe course of tbe trial. (6) When tbe verdict is contrary to law or evidence. (7) When new evidence is discovered material to tbe defendant, and wbicb be could not, with reasonable diligence, have discovered and produced at tbe trial. When a motion for a new trial is made upon tbe ground of newly-discovered evidence, tbe defendant must produce at tbe bearing, in support thereof, tbe affidavits of tbe witnesses by whom such evidence is expected to be given, and if time is required by tbe defendant to- procure such affidavits, tbe court may postpone tbe bearing of tbe motion for such length of time as, under all tbe circumstances of tbe case, may seem reasonable.”

Is tbe phrase, “any misconduct of tbe jury by wbicb a fair and due consideration of tbe case bas been prevented,” broad enough to comprehend tbe relief sought ?

Section 2048 of tbe Penal Code provides: “Particular causes of challenge are of two binds: (1) Por such a bias as, when tbe existence of tbe facts is ascertained, in judgment of law disqualifies tbe juror, and wbicb is known, in this Code as implied bias. (2) For the existence of a state of mind on tbe part of tbe juror in reference to tbe case, or to either of tbe parties, wbicb will prevent- him from acting with entire impartiality and without prejudice to the substantial rights of either party, wbicb is .known in this Code as actual bias.”

When it appears that a juror bas actual bias — has prejudged tbe case — -but denies tbe fact, qualifies as a competent juror, and then enters into tbe trial with feelings of bitter hostility against tbe accused, it would seem that such action on bis part strikes fundamentally at tbe composition of tbe jury.

A jury is an entity. By tbe Constitution of tbis state, one accused of crime is guarantied tbe right to “a speedy public trial by an impartial jury of tbe county or district in which tbe offense is alleged to have been committed.” (Article III, Sec. 16.) An impartial jury must be composed of twelve impartial men. A number less than that will not suffice. (Territory v. Ah Wah and Ah Yen, 4 Mont. 149, 1 Pac. 732, 47 Am. Rep. 341; Gaston v. Babcock, 6 Wis. 503.) If one of tbe jurors is incompetent because of actual bias entertained by him against tbe accused, and conceals such incompeteney on bis voir dire, tbis vitiates tbe jury as a whole. Tbe accused being entitled to a jury of twelve impartial men, if be has but eleven, while tbe twelfth is hostile to him, be has not tbe impartial jury which the constitution and laws contemplate that he shall have.

In People v. Plummer, 9 Cal. 299, Chief Justice Terry, for tbe court, said: “One of tbe dearest rights guarantied by our free constitution is that of trial by jury — the right- which every citizen has to demand that all offenses charged against him shall be submitted to a tribunal composed of honest- and unprejudiced men, who* will do equal and exact justice between tbe government and tbe accused, and, in order to do tbis, weigh impartially every fact disclosed by tbe evidence. Tbis guaranty, long regarded as of inestimable-value, would be entirely worthless if persons are admitted in tbe jury box who are influenced by passion, ill will, or prejudice, or Avho, by reason of having formed an opinion as to the merits of tbe case, will be incapable of deciding with perfect impartiality.”

Tbe accused must have such impartial jury from tbe beginning of bis trial, and until tbe verdict is rendered. When, then, does tbe trial begin? In People v. Turner, 39 Cal. 370, it is said: “After an issue of fact is joined in a criminal case, every step thereafter taken for tbe purpose of a determination of that issue in tbe court where tbe cause is pending, u,p to and including tbe verdict upon sucb issue, must be regarded as a step or proceeding ‘arising during tbe course of tbe trial/ within tbe meaning of Section 440 of our Criminal Practice Act; hen.ce any substantial error of tbe court upon any matter or question intervening between tbe joining of issue of fact and tbe rendition of a verdict thereon, and any misconduct of a juror, who. participates in tbe verdict, from, tbe time be- is called in the case and sworn and examined on bis voir dire up to the final act of rendering tbe verdict, is proper ground for a motion for a new trial under said section; and on appeal from an order of tbe court denying or granting sucb motion, based upon sucb grounds, tbe appellate court is confined to. a review of tbe proceedings within these limits.”

Certainly, after tbe jury is sworn, misconduct on tbe part of an individual juror is “misconduct of tbe jury.” If, pending tbe trial, one of tbe jurors is bribed, would any one declare tbe jury, to be an impartial one ? At tbe commencement of tbe trial, twelve of those summoned as veniremen for tbe term are called into tbe jury box to> answer as to their competency to serve as jurors in the case on trial. Suppose one qualifies under oath as competent, and, after being passed for clause, receives a bribe, and tbe jury is then sworn to. try tbe cast*; would not sucb conduct on bis part be misconduct of tbe jury ? (State v. Morgan, 23 Utah, 212, 64 Pac. 356.) In principle, would tbe case be different, if, after tbe venireman was summoned, but before being sworn on bis voir dire, be received a bribe to convict tbe defendant, and then, by concealing sucb fact, got himself accepted as a juror, and participated in tbe verdict? What substantial difference is there between tbe illustration just made and a case where tbe venireman, with malice against the defendant, perjures himself in order to secure a place upon the jury? Assuredly none will be found to say’that sucb perjury is not misconduct on tbe part of.tbe individual committing it. It may be argued that- siich misconduct is not misconduct of the juror, because he is not a juror until sworn to try the case; that the misconduct is that of the venireman. Such reasoning may be narrowly correct, but gives slight comfort to one who loses his life or liberty by the act of one or more of his enemies sitting upon a jury; but it is not sound when one takes into consideration the requirements of the constitution. If a juror is guilty of such misconduct upon his voir dire as will vitiate the jury, no legal jury sits upon the case, for such misconduct runs through the case and permeates every action of the jury; indeed, the very act of sitting on the jury is misconduct on the part of the disqualified juror. A jury, as an entity, is prejudiced only by the act or acts- of its members. It may be likened to a chemical compound. If one of the ingredients is bad, it spoils the entire compound.

Counsel for the* state rely upon the authority of People v. Fair, 43 Cal. 137, which construes a section similar to Section 2192, supra. In that case the court, in speaking of Section 440 of the Penal Code of California, said.: “The statute declares that such a motion, when made, must be based upon one or more of the grounds in that section mentioned — rin> the following cases onlyf is the expression — and it clearly excludes all other grounds whatsoever. C'ould the question of practice involved he quite regarded as res integra here, this mere reference to the terms of exclusion employed in the statute would he sufficient to dispose of the point; but in People v. Plummer, 9 Cal. 298, it was held by this court that under this statute an objection to the competency of a juror might be made by the prisoner for the first time after verdict rendered, and might be relied upon as a ground of motion for a new trial.

“We have carefully examined the elaborate and able opinion rendered in that case, and we find in it nothing whatever as to the construction or interpretation of Section 440 in the particular already referred to.”

It may be remarked, in passing, that in People v. Fair we . find nothing whatever as to the construction or interpretation of the phrase, “any misconduct of the jury by which a fair and due consideration of the case has been prevented.” Nor is there any reference in that case to People v. Turner, supra, although People v. Plummer, supra, is expressly overruled. Neither is the constitutional provision that the accused.is entitled to an impartial jury noticed. The Supreme Court of Nevada followed People v. Fair in State v. Marks, 15 Nev. 33; but in State v. Morgan, 23 Utah, 212, 64 Pac. 356, the Supreme Court of Utah, speaking through Mr. Justice Baskin, in a well-considered opinioh, construed a section similar to the one before this court, and expressly disapproved of the case of People v. Fair thus: “Among the personal safeguards contained in Section 12, Article I, Constitution, is the right of the accused in a criminal case to ‘have a speedy public trial by an impartial jury.’ Few, if any, more flagrant violations of that right, especially when the accused’s life is in jeopardy, can be imagined, than the presence on the jury of one or more individuals having either actual or implied bias against the prisoner, and who had, under oath, falsely: qualified as jurors. The construction placed upon the provisions of Section 4952, in the case of People v. Fair, 43 Cal. 137, and contended for by the attorney for the state in this case, if accepted, would destroy all remedies for such flagrant violation of the defendant’s constitutional right to a trial by an impartial jury. Such a construction is untenable, not only for the reasons already advanced, but it is a maxim of general application, ‘Ubi jus, ibi remedium.' 1 Term R. 512; Coke Litt. 197; Entick v. Carrington, 19 Howell, St. Tr. 1066; Broom, Leg. Max. 147: And, when the wrong is the. violation of constitutional rights, the legislature has no power to prohibit or substantially impair all remedies, as to do so would be a violation of the constitution.”

In our view, the statute in question is not in conflict with the constitutional provision granting to an accused the right to an impartial trial. We think it is clear that the lawmakers manifestly intended' to include in the statute such incompetency of a juror as we are discussing as a ground for a. new. trial, by the use of the words “misconduct of the jury by which a fair and dne consideration of tbe case bas been prevented.” This view is strengthened when we construe Subdivisions 3 and 4 together. It is manifest that the verdict must be reached by no means other than a fair expression of opinion on part of all the jurors.

In four cases this court has passed upon the sufficiency of affidavits filed in support of motions for new trials, viz.: United States v. Upham, 2 Mont. 170; Territory v. Kennedy, 3 Mont. 520; Territory v. Burgess, 8 Mont. 82, 19 Pac. 558, 1 L. R. A. 808; and State v. Anderson, 14 Mont. 541, 37 Pac. 1. But in none of these cases did the court pass upon the precise question now under consideration. When the case of United States v. Upham was tried, the Codified Statutes of 1871-72 were in force. Section 353, p. 242 thereof, provided: “The court may grant a new trial for the following causes, or any of them: First. When the jury has received any evidence, papers or documents, not authorized by the court, or the court has admitted illegal testimony, or for newly-discovered evidence. Second. When the jury has been separated without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct tending to prevent a fair and due consideration of the case. Third. When the verdict has been decided by means other than a fair expression of opinion on the part of all the jurors. Fourth. When the court has misdirected the jury in a material matter of law. Fifth. When the verdict- is contrary to law or evidence; but no more than two new trials shall be granted for this cause alone.” Section 353 is identical with Section 236, pi 252, of the Bannack Laws (First Legislative Assembly), and this statute was continued in effect until Section 2192 of the Penal Code was enacted. Under Section 353, above, the court granted new trials in the Upham and Kennedy Cases, but in the Burgess and Anderson Cases held the showing made by the defendant insufficient.

It is true that in the Upham and Kennedy Cases the statute provided as a cause for disqualification that of having “formed or expressed an opinion as to the guilt or innocence of the defendant,” if it appeared tbat sncb opinion would prejudice or bias the mind of the juror. The identical words quoted are not contained in the present C'ode, and the question then arises, are they included within the meaning of Subdivision 2 of Section 2048, supra, f What is the substantial difference between “having formed or expressed an opinion as to the guilt or inno1-cence of the defendant of the crime charged in the indictment, or on any material fact to be tried, if it appear that such opinion would prejudice or bias the mind of the juror,” and the words “for the existence of a state of mind on the part of the juror in reference to the case, or to either of the parties, which will prevent himi from acting with entire impartiality and without prejudice to the substantial rights of either party, which is known in this code as actual bias” ? It is evident that the meaning of these two sections is practically the same. How are we to tell whether the juror has 'the existence of such a state of mind as will prevent him from acting' with entire impartiality and without prejudice to the substantial rights of the defendant, except by judging from what he does and says ? Certainly, if the juror has formed an unqualified opinion as to the merits of the cause, he may have actual bias. If he has expressed an opinion showing that he has actual bias against the defendant, it is« tentative pa?oof that his mind is not in such a free and just attitude as to enable him to “weigh the evidence in impartial scales.” We are here only discussing the similarity of two statutes. As we shall presently see, certain opinions and expressions of opinions are not such disqualifications as the law will take notice of.

In the statutes in force prior to 1895 it is provided that “the court may grant a new trial for the following causes, or any of them,” etc., while Section 2192 provides that “the court may * * * grant a new trial in the following oases only,” etc. There is no substantial difference in the meaning of the two> phrases. In the first one the provision that “the court may grant a new trial for the following causes, or any of them,” ás effectually excludes grounds not named 'as does the language of Section 2192. Tbe maxim, "Expressio unius est exclusio alterius,” applies. It thus appears that there is no radical difference between the statutes we have been discussing as to the point in issue.

But counsel for the state urge that we have no course to pursue, except to follow the case of People v. Fair, because Section 2192 was borrowed from California after it had been construed by the supreme court of that state, and therefore we must adopt the construction placed upon it by that court. We have shown that the particular portions of the section in question have been in our statutes beginning with the Acts of the first legislative assembly, and that under them this court has in at least four different cases recognized its power to grant newl trials thereunder.

In Territory v. Kennedy, supra, the court cites with approval People v. Plummer, supra, but takes no notice of People v. Fair. It is said in Oleson v. Wilson, 20 Mont. 544, 52 Pac. 372, 63 Am. St. Rep. 639: “We admit ‘that the construction put upon statutes by the courts of the state from, which they are borrowed is entitled to respectful consideration, and that only strong reasons will warrant a departure from it;’ * * * but we do not admit that such construction of borrowed statutes should prevail when not in harmony with the spirit and policy of our legislation and decisions;” and in the late case of Ancient Order of Hibernians v. Sparrow, 29 Mont. 132, 74 Pac. 197, Mr. Justice Holloway, speaking for the court, says: “This court will not blindly follow the construction given a particular statute by the court of the state from which we borrowed it, when the decision does not appeal to us as founded on right reasoning;” and, it may be added, this court certainly will not blindly follow a decision which appears to it as being founded on unsound reasoning, or which will lead to the denial of a constitutional right.

We agree with the Supreme Court of Utah: “The reasons assigned in the opinion in the case of People v. Fair for overruling People v. Plummer are not sound, but this overruled case and tbe case of People v. Turner are supported by sound reason; and, as they are in barmony with tbe decisions of tbe Territorial Supreme Court before quoted, tbey should be fob lowed, rather tban the case of People v. Fair.” (State v. Morgan, supra.)

Having determined to1 our own satisfaction that tbe phrase “any misconduct by which a fair and due consideration of tbe case has been prevented” applies to a case like tbe one before us, we now come to the question whether tbe defendant in this case has made good bis charge that tbe juror Coleman was incompetent. In support of bis motion for a new trial, defendant filed tbe affidavits of Gustav Angst, Frank Sherman and D. J. Cavanaugh. It is unnecessary to- quote tbe affidavits, or to discuss them in detail. It is sufficient, to say that each one relates a different conversation in which Coleman is alleged to have been talking to others than the one who made the affidavit. Each one of the alleged conversations was at a time different from the others. Neither affidavit corroborates the other in any degree, except that (if such be corroboration) in each affidavit the juror Coleman is alleged to have said, in substance, that “the son of a bitch ought to: be1 hung” (meaning Mott). All three of the affiants, to-wit, Angst, Sherman and Cavanaugh, state that the conversation was with other people, but are unable to tell who the other people were. Neither gives the name of any person present, other than himself and Coleman. Angst gives practically no' context of the conversation alleged to have been overhead by him, while Sherman and Cavanaugh give no context at all. Coleman specifically denied the affidavits of Aingst and Sherman. No reply was made to the affidavit of Cavanaugh, but the matters testified to by Cavanaugh are, in effect, denied by the affidavits filed in reply to those of Angst and Sherman. The case would be far different if Angst, Sherman and Cavanaugh had testified to a conversation held at the same time and place. All of Coleman’s voir Aire examination does not appear in the record. This much, however, appears: He said he had heard of the Mott case through the newspapers. He was then asked if lie had heard it discussed or had any conversation concerning it, and he answered, “Only hearsay.” lie was then asked if, from what he had heard of the case, or any knowledge he had gained of it in any way, he had formed or expressed an opinion as to the guilt or innocence of the defendant, and he said: “I cannot say that I have. I have no such opinion at this time.” He further answered: “I have no prejudice or bias against the defendant in this case. I do not know of any reason why I cannot sit as a trial juror in this case, and render a verdict based upon the law and evidence given here in the trial of this case, and, if sworn as a juror, I will do so.” In answer to a question propounded to him by counsel for defendant, he said: “I never formed any opinion. I do not form an opinion from newspaper reports. I have no bias or prejudice against the defendant.”

Our statute (Section 2051 of the Penal Code) provides: “In a challenge for implied bias, one or more of the causes stated in Section 2049 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of Section 2048 must be alleged; but no* person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon¡ public rumor, statements in public journals, or common notoriety, provided it appear to the court, upon his declaration, under oath ,or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge must be oral, but must be entered in the minutes of the court or of the stenographer.”

This section was passed in view of conditions which now obtain. The wide publicity given cases of a criminal nature by the newspapers leads to much idle and desultory public and private discussion. The people talle of the alleged crime, and form opinions thereon, contemplating that the reports • current may not be based upon a true state of facts. The opinions thus formed are usually indefinite and not deeply impressed upon the mind. Men in general are willing to set aside such lightly formed opinions, and to rationally decide upon tbe evidence adduced by tbe solemn processes of tbe law. Any other rule than tbat expressed in tbe statute would seriously binder tbe courts in tbe disposition of criminal business.

Tbis statute is constitutional. (Territory v. Bryson, 9 Mont. 32, 22 Pac. 147; State v. Shearin, 12 Mont. 539, 31 Pac. 543, 33 Am. St. Rep. 600; State v. Russell, 13 Mont. 164, 32 Pac. 854; State v. Martin, 29 Mont. 273, 74 Pac. 725.)

It does not appear from tbe voir dire examination of tbe juror tbat bis opinion was founded upon anything else tban from wbat be had read in tbe newspapers, or upon public rumor. As above noted, in reply to tbe question as to whether be bad beard tbe ease discussed, or bad any conversation-concerning it, be replied, “Only hearsay.” It was incumbent upon tbe defendant’s counsel, in testing tbe competency of tbe juror, to have asked as to wbat tbis hearsay consisted of. (Territory v. Bryson, supra.) They bad án opportunity to ascertain fully tbe nature of tbe hearsoy, as well as tbe condition of tbe juror’s mind with reference thereto. When they knew be bad beard tbe case discussed, and bad himself conversed about it, which bis answer to tbe question clearly indicated, they should have pursued tbe investigation further, to tbe end tbat they, as well as tbe court, might be informed as to tbe true state of facts. Tbe question before 'tbe court was, wbat was tbe state of tbe juror’s mind at tbe time be was being examined? In-testing him, it was proper to investigate tbe sources of bis knowledge, to inquire as to tbe statements made by him concerning tbe case, as well as upon all other matters germane to tbe inquiry. Tbe juror, upon bis voir dire, while admitting some knowledge concerning tbe case, as well as conversations bad, swore tbat be bad no opinion as to tbe guilt or innocence of tbe defendant at tbe time be was being examined, and further said: “I do not know of any reason why I cannot sit as a trial juror in tbis ease, and render a verdict based upon tbe law and evidence given here in tbe trial of tbis case, and, if sworn as a juror, I will do so.” He thus clearly qualified himself, under the statute, “for, no matter from what source the juror formed his opinion, unless it be from conversation with witnesses or reading reports of the testimony, it must be fixed and unqualified, in order to disqualify him, which was evidently not the case with the juror in hand.” (Territory v. Bryson, supra.)

The only attempt made by defendant’s counsel to impeach the competency of the juror is by means of affidavits tending to show that at some time prior h> the trial he had expressed an opinion showing bias against the accused. No attempt is made to show that the hearsay testimony concerning which the juror testified was obtained from the witnesses in the ease, or from reading' any official report of the testimony. Instead, mere skeleton affidavits were filed. Both these and “the circumstances should be closely scanned. They doubtless received such scrutiny from the learned district judge.” (State v. Anderson, supra.)

In the Burgess Case it was said: “The affidavit was ex parte, while the juror was examined openly in court, and was interrogated by: counsel for defendant as well as by the court. The court had a full opportunity to see the demeanor of the witness [juror], as well as hear his words, and from both was doubtless convinced of the sincerity and truth of his statement; otherwise the court would not have overruled motion for a new trial.” (State v. Anderson, 14 Mont. 541, 37 Pac. 1.)

In this case the district judge heard the voir dire examination of the juror; observed his demeanor while testifying, as well as during the trial of the ease; passed upon the affidavits filed on behalf of the defendant and on the part of the state; and overruled the motion for a new trial. In the light of the statute and of the showing’made upon this appeal, we cannot say the court erred.

While it is imperative that the accused shall have a trial by an impartial jury, the mere possibility or even probability that one of the jurors was incompetent is not sufficient to overturn the verdict. After verdict the accused has the laboring-oar. “Error will not be presumed. It must -be affirmatively made out.” (People v. Scott, 56 Mich. 154, 22 N. W. 274.) A trial having been had under the rules prescribed by law, the presumption is in favor of its validity.

In passing on a motion for a new trial based upon the alleged incompetency of a juror, the lower court is called upon to exercise a sound legal discretion. In the absence of a clear showing of error in this regard, the appellate court will not interfere. (Territory v. Bryson, supra; State v. Anderson, supra; State v. Martin, supra; State v. Schnepel, 23 Mont. 523, 59 Pac. 927; People v. Biles, 2 Idaho (Hasb.), 114, 6 Pac. 120; Carson v. Dellinger, 90 N. C. 226.)

The record in this case is very imperfect. Section 2281, Penal Code, expressly provides how the record on appeal shall be perfected, and what it shall contain. The appeal in this case probably would have been subject to dismissal, under the statute, had the proper motion been made on part of the state. As it is, no judgment appears in the record.

We are of the opinion that the appeal from the judgment must be dismissed, and that the order denying the motion for a new trial should be affirmed.

Pee Cueiam.

Pbr the reasons given in the foregoing’: opinion, the appeal from the judgment is dismissed, and the order denying the motion for a new trial is affirmed.