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where Buren was, and White said he had gode to California. That night the defendant was arrested in Vancouver, and the next day the other defendants were present in Buren's room in Vancouver when the harbor master, Biglin, and other persons were there questioning Buren. Later an information was filed against defendants jointly for the crime of kidnapping the prosecuting witness, Buren. Upon separate trial of the defendant James White, he was convicted, and appealed from the judgment of conviction to this court, and alleges numerous assignments of error.

M. L. Pipes, for appellant. R. G. Morrow, for the State.





at my stomach and had to lay down on my back, as I had to throw up when I laid down on my side. I did not take any medicine except a little white capsule the housekeeper gave me, and he gave me some whisky afterwards.” And then, speaking about going to Vancouver, witness testified: "A fellow came up and told me to put my clothes on; we have to go to Vancouver. He said, 'A policeman will soon be up here in the house.' I said, 'I am sick. It is bad for me to go over there.' * .* They told me to be quick; that the policeman would soon be there. * * * Smith was on the outside once when I saw out in the door. IIe was standing there when I was ready, and we went downstairs. Billy Smith handed me a bottle of whisky, and told me to use it if I felt weak and sick. * * * When we came to Woodlawn, we had to wait there a while for a Vancouver car. When the Vancouver car came they brought me in it. * * * When we came over to the ferry, Jim White came against the stair. When Jim White came down to the ferry he asked me how I felt, and I told him I felt sick, and he said we might go and have a bath, and he brought me up to the barber shop there. * * * Jim White told this fellow in the shop to make the bath ready and make it as hot as possible. * * And then he says, 'I will go up in town and get a room for you. I will be back in a few minutes.'” Then, after testifying about White taking him to a hotel and getting him a room, he said: "He brought me to bed and asked me if I wanted to have anything to eat, * * * and went away,

* and then came back * * * and asked me how I felt and something more I cannot remember all

and then when he went away again he told me to put on the iron bolt inside of the door, to lock the door with the bolt. 'I will call your name and knock

'I on the door when I come up again,' he said. * * When Jim White told me to lock the door he said something about letting nobody come in, but I can't exactly say what it was.” When asked why he went to Vancouver, he said: “They brought me over there. I could not go myself.” And, when asked if he desired to go to Vancouver, Buren answered, "I could not say 'no. I was afraid of the sailors; they were drunk.” also testified that he was taken to Vancouver in the afternoon, and the defendant James White met him at the ferry there, and White says he first saw Buren in Vancouver between 3 and 4 o'clock in the afternoon. Between 2 and 3 o'clock, and after Buren had been taken from the boarding house by two sailors whom he did not know, and one of whom accompanied him to Vancouver and left him after the defendant James White had taken him to the barber shop, the harbor master, Biglin, called at defendants' boarding house and asked Harry White

HAILEY, J. (after stating the facts). The information was filed under section 1774, B. & C. Comp., and charged that defendants did, without lawful, or any, authority, unlawfully and feloniously and forcibly seize, confine, inveigle, and kidnap one C. A. Buren, with the intent of them, the said defendants, unlawfully and feloniously to cause him, the said Buren, against his will to be sent out of the state of Oregon and into the state of Washington. A demurrer was filed to the

. information, but the only ground urged at the hearing was that it charged more than one crime, "in that it charges that the defendants did forcibly seize and confine and did inveigle and kidnap one C. A. Buren.” The defendant contends that there are two kinds of kidnapping under our statute—the one forcible, by seizing and confining, the other fraudulent, by inveigling—and that they are so different as to be repugnant to each other, and each constitutes a separate and distinct crime, though defined in and prohibited by the same section of the Code and punished in the same way.

Section 1774, B. & C. Comp., provides that "every person who without lawful authority forcibly seizes and confines another, or. inveigles or kidnaps another, with intent * * * to cause such other person to be sent out of this state against his will shall be punished," etc. This court has repeatedly

, held that, where a statute makes it a crime to do either of several acts stated disjunctively therein, all of such acts may be embraced in one count, using the conjunction "and” where “or” occurs in the statute. State v. Carr, 6 Or. 133; State v. Bergman & Berry, 6 Or. 341; State v. Dale, 8 Or. 229; State v. Humphreys, 43 Or. 47, 70 Pac. 824; Cranor v. Albany, 43 Or. 147, 71 Pac. 1012. Under this rule the commission of any one or all of the acts named in this statute constitutes only one crime, that of kidnapping. We fail to see wherein the acts charged are so different in character as to be repugnant to each other; but, on the contrary, think that the crime charged could have been committed by doing any one or all of the acts alleged. Our belief in this respect is fully sustained by the evidence in this case, which clearly shows that after Buren had been cruelly assaulted and beaten into submission by thugs under the evident control of the defendant he was taken to the boarding house of defendants and there confined in a room and later inveigled to go to Vancouver, Wash., by the fraudulent representation that he would be arrested by officers if he failed to do so; thus showing that both the forcible and fraudulent acts of the statute could be consistently performed in committing the crime of kidnapping. The demurrer was properly overruled.

2. After 10 jurors had been accepted, but not sworn, and after the defendant had exhausted all his peremptory challenges, upon leave of the court the prosecution further examined a certain juror who had already been accepted by both parties as to his qualifications, and learned that he was related to one of the counsel for defendant and distantly connected by marriage with the defendant, In answer to a question as to whether or not the fact of this relationship would affect him in the trial of the case or cause him to be influenced in rendering his verdict, the juror said: "No; it would not, although I go into the case at a disadvantage at the present time, as long as the question has been brought up. Yet I might have an honest opinion in his favor under the evidence that I might not have had when I went in the

I feel that, if I had my way, I would sooner be let off.” He was then asked: "And you think that the investigation having been opened you would be embarrassed so you would not be able to do the defendant justice?" To which he replied, "I would like to do every one justice.” The court then said, “You would prefer to be excused and not serve on this jury? To which he answered, “Yes, sir.” The court on its own motion, and over the objection of the defendant, then excused the juror. After three more jurors had been accepted by both parties, at his own request to be excused from serving on the jury, an accepted juror, W. S. Drake, was excused by the court, who used the following language: "I think I will excuse Mr. Drake. He has a case assigned for to-morrow morning.

morning. We will hardly finish this case to-day. The jury may be out all night and Mr. Drake would not be in condition to conduct his own case to-morrow. You may call another juror.” After the juror Drake had been excused, another juror was called and examined as to his qualifications by defendant's counsel, and defendant, after such examination, asked leave to challenge such juror peremptorily, which leave was refused and defendant then peremptorily challenged the juror, but the challenge was denied for the reason that defendant had already exhausted his peremptory challenges, and exceptions were duly saved by defendant. The jury was then sworn and the cause tried. Error is assigned in ex

cusing the two jurors after the defendant had exhausted his peremptory challenges and in denying his peremptory challenge to the last juror. In Kumli v. Southern Pacific Co., 21 Or. 510, 28 Pac. 637, speaking of the determination of the competency of a juror, Mr. Justice Bean says: "The determination of his competency, therefore, necessarily becomes primarily a question for the trial court, keeping ever in view, as it should, that the ultimate object to be attained is a trial by a fair and impartial jury. The question is wisely left largely to the sound discretion of that court, and its findings upon a challenge to a juror for actual bias, where there is any reasonable question as to his competency, ought not to be reviewed by an appellate court unless it clearly appear that such discretion has been arbitrarily exercised." It is the duty of the trial judge to see that a fair and impartial jury is obtained, and he way in the exercise of a sound discretion, and before the jury is complete, excuse incompetent and disqualified jurors, although no challenge or objection has been interposed and for causes not enumerated in the statute. Commonwealth v. Livermore, 4 Gray (Mass.) 19; Atlas Mining Co. v. Johnston, 23 Mich. 36; People v. Carrier, 46 Mich. 4, 9 N. W. 487; People v. Thacker, 108 Mich. 658, 66 N. W. 562; People v. Arceo, 32 Cal. 10; Sutton v. Fox, 55 Wis. 536, 13 N. W. 477, 42 Am. Rep. 744. The reasons for excusing these jurors appear upon the record, and we see no abuse of the discretion lodged in the court in such matters. In State v. Boon, 80 N. C. 462, a juror accepted by the defendant afterwards stated that he was related to both the deceased and the defendant and requested to be excused, and the action of the court in directing him to stand aside was sustained upon appeal. In People v. Carrier, 46 Mich. 444, 9 N. W. 487, the juror was qualified, and had been accepted by both parties, but, after stating to the court that he was in attendance on court as a witness in the next case to be tried, he was excused over the objection of the defendant, and the action of the court approved on appeal. In Atlas Mining Co. v. Johnston, 23 Mich. 36, under a statute providing that “the twelve first persons who shall appear as their names are drawn and called, and shall be approved as indifferent between the parties, shall be sworn, and shall be the jury to try the cause," the court, in commenting upon the

upon the meaning of this statute, said: “We think within the fair meaning of this statute, when compared with the other provisions in reference to jurors and read in the light of the decisions, that the first two jurors may properly be said not to have been approved as indifferent between the parties. And, though it would be ground of error for the court to admit a juror who is challenged and ought to have been rejected, it is no ground of error for the court to be more cautious and strict in secur.

ing an impartial jury than the law actually exercised as to the last juror called. The required, and that for this purpose the court defendant, having voluntarily exhausted his may very properly reject a juror on a ground peremptory challenges, could not claim any which would not be strictly sufficient to additional peremptory challenges, and having sustain a challenge for cause, or, in other been tried by a qualified jury can claim no words, when the refusal to sustain the chal- error in impaneling the jury. lenge would not constitute error. So long 3. The errors predicated upon the admis

an impartial jury is obtained, neither sion of the testimony regarding the signing party has a right to complain of this course of shipping articles on the ship Riversdalo by the court; and especially when, as in this by the sailors Buren and Cyren, on the case, no objection was taken by either party ground that such evidence tended to prove to the competency or impartiality of the jury the crime of enticing seamen, which was not which was obtained.” In the foregoing case charged in the information, are not tenable no challenge or objection was taken by either in view of the instruction requested by departy to either of the 2 juror's excused, and fendant and given to the jury, telling them they were not subject to challenge under the that the defendant was not charged with statute, and it was claimed by the defendant that crime and they could not find him guilty that he was entitled as a matter of right to of such offense. have the case tried by the 12 jurors whose 4. The objections to the testimony regardnames were first drawn from the box, but

ing the desertion of witnesses Cyren and the court held otherwise.

Pearson from a certain ship were properly The only question, then, is, did the court sustained. Such testimony was sought for the abuse its discretion by excusing these jurors purpose of affecting their veracity or characafter the defendant had exhausted his per- ter. Section 852, B. & C. Comp., provides

. emptory challenges? In O'Neil v. Lake Su- how a witness may be impeached, and experior Iron Co., 67 Mich. 560, 35 X. W. 162, pressly says, “but not by evidence of particuafter the plaintiff had exhausted his peremp- lar wrongful acts." tory challenges, a juror who had been pre- 5. Dr. Black was called as a witness for viously examined and not rejected by the the state, and testified that he had been a plaintiff requested to be excused for the rea- practicing physician and surgeon since 1886 son that he did not think he had sufficient un- and had resided in Vancouver since 1897, derstanding of the English language to quali- and had made an examination of Buren on fy him to sit as a juror, and the court ex- the morning of the second day after he had cused him over the objection of plaintiff, who been assaulted on the dock, but had not exobjected on the ground that he had already amined his body nor had any of his clothing exhausted his peremptory challenges and con- removed, and after describing Buren's consequently some person would be drawn in- dition he was asked, “What in your opinion stead of the juror against whom he would be would be the cause of his condition?" An ohdebarred from exercising his privilege of per- jection was made to the question as incomemptory challenge. The court said: “The

petent, irrelevant, and immaterial, and for fact that the party had exhausted his peremp- the further reason that the witness had not tory challenges before the juror was excused

qualified himself to testify as an expert in invaded no right of the plaintiff.


that matter. In support of his objection the Peremptory challenges are exercised by a defendant relies upon the rule in State v. party, not in the selection of jurors, but in Simonis, 39 Or. 114, 65 Pac. 595, wherein it rejection. It is not aimed at disqualification, is said the mere fact that a witness is a regubut is exercised upon qualified jurors as mat- larly licensed and practicing physician in this ter of favor to the challenger. If, then, the

If, then, the state is not sufficient in itself to qualify him party has exercised the privilege to the ex- as an expert. In that case “there was no tent given by the statute, it cannot be alleged evidence that he [the witness] is a graduate as error that qualified jurors are afterwards of any medical school, or had taken a regular drawn or placed in the panel. His right to course in medicine, or had been examined by have his case tried before a fair, impartial, | the state medical board, or as to the length and qualified jury remains unimpaired, and of time or extent of his practice, or his exits selection is secured through the exercise perience in cases of poisoning.” In this case of the challenge for cause, which still re- | the witness testified that he had been a pracmains.” The exhaustion of his peremptory ticing physician and surgeon for about 17 challenges by the defendant in the case at years; thus giving the length of time of his bar was voluntary so far as the record shows, experience, and stating a fact from which and the fact that the court in the exercise of the court could determine in some measure its discretion excused two jurors afterward his qualifications as an expert, and clearly (ould work no hardship upon the defendant, taking the case out of the rule in State v. unless he was thereafter compelled to accept Simonis. As stated in 8 Ency. Pl. & Pr. 147: as a juror some disqualified person. But the “This fitness of a witness to testify as an record shows that the panel was completed expert is a question of fact, and is addressed without challenge for cause having been in every instance to, and lies within, the made to any of the jurors accepted and a sound discretion of the trial court." As to peremptory challenge only was sought to be į the question asked, it was competent. Tho


witness had described Buren's condition and , tions of one or more of the conspirators are after doing so could give his opinion as to sometimes admitted before sufficient proof is what caused it. State v. Simonis, supra. given of conspiracy. This rests, however,

6. The error assigned, if any, in overruling largely within the discretion of the trial the motion to strike out as hearsay the testi-court, but the proper connection must be submony of Buren as to what Cyren and Pear- sequently made, so as to show prima facie a son told him Harry White had said to them, conspiracy between all, before such acts or could work no prejudice to defendant on that declarations will ultimately be permitted to ground, in view of the fact disclosed by the go to the jury."

go to the jury.” The objections to the staterecord that Cyren himself testified to what ments were therefore properly overruled. Harry White had told him and Pearson, and 7. Error is also alleged in the action of the it was substantially the same as stated by court in overruling the motions to discharge Buren. State r. Morse, 33 Or. 402, 57 Pac. the codefendants, Harry White and Smith, 631. It is insisted, however, that the state- so that they might become witnesses for the ments made by Jack Grant to Buren, Cyren, defendant. This, however, was a matter, and Pearson about what the White brothers based upon the sufficiency of evidence, withwould do to them if they attempted to board in the discretion of the court, and we think the Riversdale were not admissible for the there was sufficient evidence to sustain the reason, first, that Harry White did not hear ruling of the court. Section 1397, B. & C. them and had no part in the conversation; Comp. and, second, that there was no proof of con- 8. The trial court refused the defendants' spiracy upon which to admit the statements, request to instruct that the codefendants, and this last reason is also assigned for the Wm. Smith and Harry White, were disqualiexclusion of the statements made by Harry fied from testifying in defendant's behalf, White to Cyren and Pearson about what and that the jury should draw no unfavorwould be done to them if they attempted to able inferences from the fact that they were board the ship. The record, however, shows not witnesses for defendant, and this is asby the testimony of Cyren that, while Harry signed as error. It is well established in this White may not have heard some of the pre- state that a codefendant not on trial cannot liminary conversation between Grant and the testify for or against a codefendant on trial. witnesses, he did hear the important state- unless such codefendant has been acquitted ments and also that he himself shortly after- or convicted or discharged as provided in wards made practically the same statements sections 1396, 1397, B. & C. Comp. State v. to Cyren and Pearson when they met him Drake, 11 Or. 402, 4 Pac. 1204. It is claimed, and Grant, so there was no error in either however, that since the statute permits a deevent so far as the first reason is concerned. fendant on trial to testify or not as he may Upon the question of the sufficiency of proof choose, and his waiver of such right to testiof a conspiracy, before admitting the declara- fy shall not create any presumption against tions of a co-conspirator, Mr. Chief Justice him (B. & C. Comp. § 1400), and, as counsel Moore, in State v. Moore, 32 Or. 73, 48 Pac. contends, the court must so instruct the jury, 468, after citing and quoting from several if requested, it necessarily follows that the authorities, said: “From this it would seem court must, when requested, instruct the to follow that when any evidence offered rea- jury why codefendants not on trial do not sonably tends to create an inference of the testify, and that no unfavorable inference can existence of an unlawful agreement, to the be drawn from this failure to appear as witsatisfaction of the judge trying the action, it nesses. Conceding, but not deciding, for the would be his duty to permit the introduction question is not before us, that the court must, of evidence tending to show the declarations when requested, instruct the jury, as counsel and acts of the alleged co-conspirators, and contends, when a defendant on trial fails to thereafter to instruct the jury upon the great testify, does it follow that a like instruction importance of finding that an unlawful com- should be given regarding codefendants who bination had been consummated before they have no choice about testifying and are could consider any evidence, the introduction disqualified by the statute? We think not. of which was dependent upon such finding.” The very reason of the rule invoked for the This same doctrine was afterwards approved protection of the defendant on trial is wanthy this court in Pacific Live Stock Co. v. ing in the case of codefendants not on trial. Gentry, 38 Or. 286, 61 Pac. 422, 65 Pac. 597, The competency of a witness is entirely a wherein it was held that the declarations of matter for the court to determine, and not an alleged conspirator were admissible in evi- for the jury, and the court only is concerned dence after testimony had been given which with the reasons why a witness is incomprima facie tended to prove the existence of petent to testify. It is purely a question of a conspiracy or from which it might be re:- law for the court. Our statute has given to sonably inferred. Within the foregoing doc- a defendant on trial the right to testify in his trine, there was unquestionably sufficient evi- own behalf and at the same time declared dence of the existence of a conspiracy to ad- that his waiver of such right shall not create mit the statements complained of. Mr. Chief any presumption against him. The favor to Justice Wolverton, in State v. Ryan, 47 Or. the defendant is given by the statute and is 344, 82 Pac. 703, said: "The acts or declara- | limited to his own act of testifying or not, as he may choose, and is not intended to apply ! tion imposing the duty on the purchaser to acto what he might say or do if testifying, or cept them at another place was erroneous. to what others testify about him or his acts

[Ed. _Note.--I'or cases in point, see vol. 43,

Cent. Dig. Sales, $$ 362, 445 450.] or declarations. No presumption shall be created against him by reason or because of


Where the quality of cattle was to be his act in failing to testify. The law does

passed on by the purchaser, evidence that about not say no presumption shall be created the time the purchaser commenced the inspecagainst him by evidence of what he may

tion of the cattle the seller arranged with a have said or done in other matters as shown

third person to furnish certain cattle on the

contract, if necessary, was incompetent; it not by the testimony of his acts and declarations

appearing that the purchaser was informed of in such matters. The favor is granted the the arrangement. defendant in respect to his own failure to

7. SAME-OBJECTIONS WAIVED. testify, and not for the failure of some one

Where no objection was made by the pur

chaser of cattle to passing on the quality of the else. whether competent or not. No such cattle offered because the entire number was not favor is extended the defendant for the act delivered at the time, he cannot claim that the of his codefendant not on trial. So long as

seller did not comply with his contract because

he did not offer for inspection the entire number the codefendant cannot testify it would seeni

of cattle he agreed to deliver. absurd to require the court to instruct the [Ed. Note.For cases in point, see vol. 43, jury that no unfavorable inferences should be Cent. Dig. Sales, $ 459.] drawn from the failure to do what the law

Appeal from Circuit Court, Grant County ; expressly says cannot be done.

George E. Davis, Judge. Numerous other assignments of error are

Action by the William Hanley Company specified, but we have carefully examined the

against J. D. Combs. Judgment for the derecord and think that they are not well taken, fendant, and the plaintiff appeals. Reversed. and that the case was fully, fairly, and properly presented to the jury by the court and

This is an action to recover $3,300 advanced no substantial right of the defendant has hy the plaintiff on an executory contract for been affected.

the sale of personal property. The complaint The judgment of the lower court will be alleges:

alleges: That on August 2, 1905, the plainaffirmed, and it is so ordered.

tiff and defendant entered into the following written contract: "This agreement, en

tered into this 2nd day of August, 1905, by (48 Or. 109)

and between J. D. Combs, of John Day, Or., WILLIAM HANLEY CO. V. COMBS. and Wm. Hanley, Mgr., of Burns, Ore., for (Supreme Court of Oregon. Oct. 23, 1906.)

and in consideration of thirty-three hundred 1. SALES--RECOVERY OF MONEY PAID--PLEAD

dollars ($3,300.00) and further consideration ING.

hereinafter stated, that the said J. D. Combs In an action to recover money paid by sells to Wm. Hanley, Mgr., 600 head of three plaintiff on a purchase of cattle as money received by defendant for its use, on the ground

and four year old steers, now in Bear Valley that the contract had been unlawfully rescinded and vicinity, at $2.65 per hundred, delivered by defendant, plaintiff need not allege and prove and weighed at Baker City, Or., on or about an offer of performance by it, nor readiness to

1st day of September, 1905, cattle to be taken perform.

off feed and water at six o'clock in the morn[Ed. Note.--For cases in point, see vol. 43, Cent. Dig. Sales, $ 1130.]

ing and weighed at two o'clock evening, it is 2. ATTACHMENT ACTIONS – IMPLIED CON

further agreed that said cattle shall be passed TRACTS.

as to quality, in Bear Valley, before starting An action to recover money paid on a con- and that no thin-fleshed or rough cattle, or tract which has been wrongfully rescinded is on an implied contract within the attachment laws.

Holstein or Jersey blood shall be accepted. 3. SALES-RESCISSION BY SELLER.

[Signed] J. H. Combs, Wm. Hanley, Mgr." Where the purchaser of cattle was to pass

That under and by virtue of the terms of on their quality before acceptance, the mere re- this contract the plaintiff advanced and paid fusal to pass cattle which in fact complied with

to the defendant $3,300 on account of the the contract, if done in good faith, will not justify the seller in rescinding the contract, though

purchase price of the cattle mentioned and it may render the purchaser liable in damages referred to therein, but that defendant has for a breach thereof.

wholly failed, neglected, and absolutely re[Ed. Note.-For cases in point, see vol. 43, fused to deliver the cattle or any part thereof Cent. Dig. Sales, &$ 261-263.]

at Baker City or elsewhere, or at all. That 4. SAME - ABANDONMENT BY PURCHASER QUESTIONS FOR JURY.

plaintiff has demanded a repayment to it of Where a purchaser of cattle was to pass

the money's so advanced, which has been reon their quality before acceptance, and refused fused. The complaint prays for judgment to pass cattle claimed to be of the quality spec- for such amount, with interest from the comified, it was for the jury to determine in an action to recover money paid on the price whether

mencement of the action. The answer admits plaintiff's conduct was an abandonment of the the making of the contract set out in the contract, or a refusal to comply therewith, jus- complaint and the payment of the money tifying defendant in rescinding.

by the plaintiff, and affirmatively alleges that 5. SAME -- PLACE OF ACCEPTANCE -- INSTRUC

on August 20, 1905, the defendant tendered TIONS. Where cattle by the contract of sale were

to the plaintiff at Bear Valley 600 head of to be accepted at a specified place, an instruc- cattle of the kind and quality specified in the

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