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sideration in the case of State v. Miller, su- 1 ber of jurors are in the jury box at the time. pra. There they had attended the trial and The refusal to challenge by either party in heard the testimony, had talked in detail the said order of alternation shall not defeat with witnesses and jurors of a former trial, the adverse party.of his full number of and had in effect quite thoroughly tried and challenges, and such refusal on the part of determined the issue, substantially travers- said party to exercise his challenge in proping the same course to be then pursued in er turn shall conclude him as to the jurors the new trial. The tentative opinions of the once accepted by him, and if his right of jurors bere fall far short of the standard of peremptory challenge be not exhausted, his actual bias established in that decision. In further challenges shall be confined, in his the last analysis, jury service is voluntary, proper turn, to such additional jurors as a duty owing from the people to the govern- may be called. The court may, for good ment of the people. The process of the court cause shown, permit a challenge to be taken may bring before it any citizen as a juror : to any juror before the jury is completed but, if he is unwilling to serve, he can with and sworn, notwithstanding the juror chalimpunity easily display such a state of mind lenged may have been theretofore accepted, as to disqualify him by any fair standard. but nothing herein shall be construed to He is answerable only to his conscience for incre:ise the number of peremptory challengbis dereliction, for no one can look into his es allowed by other provisions of law." mind, as into his pocket, and ascertain its If it is correct to assume, as counsel for de contents. The law has left to the court the fendant apparently contend, that this section estimation of a juror's fitness. The presid- applies to criminal trials, the action of the ing judge sees and hears the juror, and so court may be defended on the principle that, can far more wisely determine his qualifica- having adopted the statute of another state, tions than the appellate court can from a we adopt with it the judicial construction case made upon paper, and, unless a strong given to the statute by the courts of that case of abuse of discretion by the trial court state. Crawford v. Roberts, 8 Or. 324; Mcis made to appear, its decision on such a Intyre v. Kamm, 12 Or. 253, 7 Pac. 27; Trapoint cannot be disturbed. If a juror is hon- bant v. Rummell, 14 Or. 17, 12 Pac. 56; Evest enough fully and fairly to state to the erding v. McGinn, 23 Or. 15, 35 Pac. 178. court the sources of his information about In State v. Eddon, 8 Wash, 292, 305, 36 Pac. the case and the conditional or even satis- 139, the Supreme Court of that state construfactory opinion he entertains from that viewed their statute from which section 126, L. point, remembering that usually the only tes-0. L., was taken, to mean that the peremptimony available on examination of a juror tory challenges should be used first by one is his own, we cannot say that the court party and then by the other in proportion to erred in accepting the juror's pledge to de- the number allotted to each, working out cide the issue according to the law and the as a result that, where the defendant was evidence as given him upon the trial, ruta allowed twelve and the state six, the former withstanding his previous mental attitude. should use two to the state's one of such

[8] The defendant questions the right of challenges. Similar statutes have received the court to compel him to exercise two per- like construction in Idaho and Montana. emptory challenges to the state's one until State v. Browne, 4 Idaho, 723, 44 Pac. 552; he exhausted the twelve allowed him by sec- State v. Sloan, 22 Mont. 293, 56 Pac. 364. tion 1523, L. O. L. The defense relies upon

In our judgment, however, it is not necsection 126, L. 0. L., to support his conten-essary to rely on this construction of the tion that, beginning with the defendant, per- law. The Code of Civil Procedure has its emptory challenges should be used one by origin in the act of the legislative assemone alternately between the parties. That bly of October 11, 1862, while the Code of section was adopted substantially from the Criminal Procedure is embodied in the act laws of the state of Washington by the leg- of October 19, 1864, and amendments thereislative assembly of 1909 (Laws 1909, p. 89, to. Deady's Code, pp. 139, 441. They are § 1), and reads as follows: "The full num- independent acts having no relation to each ber of jurors having been called shall there other except as provided by reference from upon be examined as to their qualifications, the latter to the former. In the formation first by the defendant and then by the plain- of the jury the Criminal Code declares that: tiff, and having been passed for cause, per- "In criminal actions, the trial jury is formemptory challenges shall be conducted as fol- ed in the manner prescribed in chapter II lows, to wit: The defendant may challenge of title II of the Code of Civil Procedure, one, and then the plaintiff may challenge one, except as otherwise expressly provided in and so alternating until the peremptory chal- this chapter.” L. 0. L. § 1520. The Crimlenges shall be exhausted. After each chal- inal Code in the same chapter excludes the lenge, the panel shall be filled and the ad- civil challenge for implied bias (section 122. ditional juror passed for cause before an. L. 0. L.), and substitutes one of its own other peremptory challenge shall be exercis- (L. 0. L. § 1521), besides dispensing with ed, and neither party is required to exercise the equality in the number of peremptory a peremptory challenge unless the full num- challenges designated in section 125, L. O. L., and allowing the defendant in criminal court, not only by virtue of our statute, but actions double the number apportioned to also in pursuance of numerous cases, to regthe state. In these respects the Criminal ulate the order of proof, and it may well Code itself provides otherwise than the Civ- happen that the delineation of the res gestæ il Code. Section 1520, supra, must be con- will disclose acts and sayings of co-conspirastrued to be a reference to the Civil Code tors in advance of any showing of the conas it was at the date of the enactment section of a particular defendant with that of the Criminal Code. It is as if chapter 2 conspiracy, all without error. A careful of title 2 of the act of October 11, 1862, ex- perusal of the testimony which is reported cept sections 122 and 125, were reprinted in full with the bill of exceptions convinces in the Criminal Code as part of the latter. us that at least a prima facie case of par

[9] It is a rule of statutory construction ticipation in the conspiracy is shown as in this state that, where the provisions of against Caseday. one statute are incorporated into another by [11] After the formation of a conspiracy to mere reference, a subsequent change in the commit crime, any actor declaration of former will not disturb the terms of the lat- one of the conspirators, which occurs before ter. Tillamook City v. Tillamook County, the actual commission of the contemplated 107 Pac. 482; Sika v. C. & N. W. Ry. Co., crime, and which tends to prove the guilt of 21 Wis. 375; People ex rel. v. Webster, 8 that conspirator, is equally admissible in Misc. Rep. 133, 28 N. Y. Supp. 646; Shull evidence against any one of his confederates v. Barton, 58 Neb. 741, 79 N. W. 732; in a separate trial of the latter. If not conSchwenke v. Union Depot, etc., 7 Colo. 512, 4 nected with the deeds of those who actualPac. 905; Ex parte Crow Dog, 109 U. S. 556, ly gave Snyder his lethal wounds, the de3 Sup. Ct. 396, 27 L. Ed. 1030; Wick v. fendant, Caseday, did nothing criminal in Ft. Plain Ry. Co., 27 App. Div. 577, 50 N. itself. Taking the prisoner to the scene of Y. Supp. 479. We conclude that the leg- his death was innocent enough when consid islative assembly in amending section 126 ered alone. It therefore became necessary in 1909 must have had in mind the auton- to the conviction of the defendant to show omy of the Criminal Code as a separate act; that this ostensibly blameless act was by that it was otherwise provided therein about him made a part of a criminal scheme in the peremptory challenges; and that on ac- which he and his codefendants, or some of count of the disparity between the number them, participated with the design to slay allowed to each party in criminal cases it Snyder. Hence arose the requirement of would be impracticable to have them alter-proving a conspiracy for that purpose. Furnate one by one. Thus the Criminal Code ther, if the state would impart criminality was left intact. Strictly speaking, the court to this apparently innocent act of the decould have required all challenges to be tak- fendant, Caseday, it was important to prove en by both parties as to each juror before not only that he thus acted his part in the another was drawn from the box, but they tragedy, but also that the others of the cast, were indulged by the court in making their or some of them, performed theirs, and to peremptory challenges to particular jurors that end anything that tended to show the after the others were examined. The de- guilt of any of them was admissible against fendant's rights were not abused. He was him provided it happened during the existnot deprived of any of the means by which ence of the conspiracy. the law allows him to exclude jurors from [12] In the presence and hearing of his the panel. The trial jury was legally and brother Earl, armed with a rifle, having in properly selected.

his possession the cartridges returned to It is impossible within the limits of an him by the defendant saying, "For God's ordinary opinion to notice in detail each sake! Ain't that enough ?" Emmett Shields one of the 141 assignments of error noted declared: “I bet you that man never gets in the bill of exceptions. The principal to Canyon.” This was surely admissible contention of the defendant is that the court against the declarant, and, in conjunction erred in admitting testimony about the ac- with the other evidence tending to show tions and private conferences between the guilty confederation between him and Casedefendants Shields, Green, and Caseday in day, it was also competent as against the Monument and Hamilton the evening before latter. This is but an illustration of other the killing of snyder and of the declarations like circumstances disclosed by the testiand threats of Shields and his conduct in mony. trying to get different parties to help hang [13] It is contended that some of these Snyder. This theory of objection runs declarations of Caseda y's codefendants were throughout the case and is the foundation of made before there was any showing of parmost of the exceptions to the charge of the ticipation on his part in the alleged conspircourt. It is rare that a criminal conspiracy acy. This cannot affect the case if in fact can be proven by direct and positive testi-Caseday did participate in the conspiracy mony. Most generally the prosecution is and aided in bringing about the fatal concompelled to rely on circumstantial evidence. summation. If a conspiracy is in fact form

[10] It is within the discretion of the ed and progress is made towards its con.

summation, when a defendant actively par. | The defendant contends that this part of ticipates in such conspiracy he adopts the the charge is erroneous because it does not previous acts and declarations of his fellow state the degree of proof necessary to supconspirators. In a sense he finds the con- plement the original admission or confesspiracy a going concern, adds his ability to sion. The language is practically that of its criminal capital, and so becomes as much the Code (L. 0. L. $ 1537), and in that rea part of the enterprise as if he were one spect differs from the statute of the state of its founders. Hence the declarations of of California from which citations are made a fellow conspirator, although made before in support of this assignment of error. The the defendant joins the lawless association, degree of proof, or, in other words, the efare admissible in the trial of any one of fect of the evidence, is for the jury, and unthem. Smith v. State, 21 Tex. App. 96, 17 der our statute the court cannot weigh the S. W. 560; State v. Crab, 121 Mo. 554, 26 testimony for the jury independent of the S. W. 548; Sands V. Commonwealth, 21 admissions or confessions. Grat. (Va.) 871; Kelley v. People, 55 N. Y.

[17] The defendant further complains of 505, 14 Am. Rep. 342; Commonwealth v. the following instruction: “The testimony Waterman, 122 Mass. 43; Krens v. State, of some witnesses has been offered by the 75 Neb. 294, 106 N. W. 27; Borrego v. Ter- state to show certain oral statements made ritory, 8 N. M. 446, 46 Pac. 349; Collins v. by the defendant now on trial, after the State, 138 Ala. 57, 34 South. 993; Trevino death of Oliver Snyder. In criminal law a v. State (Tex. Cr. R.) 41 S. W. 609; Wilk- statement voluntarily made by a person of erson v. State (Tex. Cr. R.) 57 S. W. 956; a fact only, which is as consistent with his Mercer v. State, 40 Fla. 216, 24 South. 154, 74 innocence as with his guilt, and is made exAm. St. Rep. 135; State v. Dilly, 44 Wash. culpatory, or in explanation of any suspi207, 87 Pac. 133; State v. Darling, 199 Mo. cious or incriminating circumstances, is an 169, 97 S. W. 592.

admission; but when the statement carries [14] The court refused the following in with it a suggestion of guilt, either as to struction requested by defendant: "Where a the character of his intent, or the quality conviction for a criminal offense is sought of his act, and the statement is made inupon circumstantial evidence alone, the state culpatory, such statement is in the nature must show beyond a reasonable doubt that of a confession.” Taken in connection with the alleged facts and circumstances are true, the whole of the court's charge, the learned and they must be such facts and circum- judge was simply distinguishing between stances as are absolutely incompatible upon confessions and admissions with a view of any reasonable hypothesis with the inno-explaining the latter to the jury. There is cence of the accused and incapable of ex- abundant evidence in the record to authorize planation upon any reasonable hypothesis an instruction about admissions, for the witother than that of the guilt of the accused. nesses detailed several things stated by the If all the facts and circumstances relied on defendant after the killing of Snyder, and by the state to secure a conviction can be the distinction made by the court was quite reasonably accounted for upon any theory proper within the meaning of State v. Heiconsistent with the innocence of the defend- denreich, 29 Or. 381, 45 Pac. 757, and State ant, such facts and circumstances are not v. Porter, 32 Or. 135, 49 Pac. 964. sufficient to sustain a conviction.” This in- Some questions about cross-examination struction, taken as a whole, is erroneous. of witnesses are raised in defendant's brief; The term “absolutely” implies mathematical but none of them are meritorious or show demonstration which is a degree of proof any erroneous exercise of the court's auimpossible in any matter involving the ac- thority over those features of the trial as tions of human beings. The law does not defined by our Code. L. 0. L. § 856. contemplate such a degree of certainty, but [18] At the close of the charge counsel for requires only moral certainty to the exclu- defendant asked that the jury be instructsion of reasonable doubt of the guilt of the ed as to the crime of manslaughter. Secdefendant. State v. Glass, 5 Or. 73.

tions 1897, 1998, 1899, and 1902 of our Code [15] The latter part of the instruction, di- separately define manslaughter as the same recting in substance a verdict for the defend- may be committed under different circumant if any reasonable theory consistent with stances. The request was general in its his innocence could be derived from the terms and did not indicate what particular testimony, was otherwise given in the charge kind of manslaughter the defendant wished of the court.

to be explained to the jury. The only in(16] The court also gave this instruction: dication we find in the brief of the appellant "Notwithstanding the admissions and con- on that point is the quotation of section fessions of a defendant may be given against 1898, L. 0. L., viz.: “If any person shall, in him on his trial for crime, such admissions the commission of an unlawful act, or a or confessions are not alone sufficient to lawful act without due caution or circumwarrant a conviction without some other spection, involuntarily kill another, such perproof that the crime has been committed.” son shall be deemed guilty of manslaugh

ter." We are at a loss to perceive how this | tion upon that point. To accede to defendsection applies to the case in hand unless it ant's request in that respect would have be claimed that in proceeding towards Can-been turning the jury loose to speculate outyon City with his prisoner alone after being side of the evidence, and, as the slang goes, warned of a plot to lynch Snyder the de- to "return a verdict on general principles." fendant performed a lawful act without It would have exposed the defendant to a due care or circumspection on account of danger not at all justified by the evidence which the death of the prisoner occurred. or the law applicable to the case. The alternative of the defendant's innocence or his guilt of the only species of homicide which could be derived from any reasonable theory arising from the testimony was fairly submitted to a jury of his peers, and that jury has decided the dilemma against him. The judgment is affirmed.

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

(59 Or. 95)

LOVE V. WALKER et al.†

(Supreme Court of Oregon. April 25, 1911.) 1. WILLS (§ 441*)-CONSTRUCTION CIRCUMSTANCES CONNECTED WITH MAKING OF WILL.

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

tain the intention of testator, will take into The court, in construing a will to ascerconsideration the ability of the person who drew the will to express the terms, objects, and purposes desired.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 958; Dec. Dig. § 441.*]

2. WILLS (8 614*)-CONSTRUCTION - LIMITATION OVER.

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

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1393-1416; Dec. Dig. § 614.*]

3. WILLS (§§ 598, 601*)-ESTATES ACQUIREDLIMITATIONS.

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

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

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

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

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

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Rehearing denied June 13, 1911.

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

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

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

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

"Know all men by these presents: That I, Lewis Love, of Portland, Multnomah county, Oregon, being over the age of 80 years, and being of sound and disposing mind and memory, do make and declare this as my last following, that is to say: I make, constiwill and testament, in manner and form

tute and appoint T. T. Struble, Philo Hol-
brook and H. C. Breeden executors of this
my last will and testament, and request
and direct that no bonds or undertaking
be required of them as such, nor of them as
trustees to hold my estate to a certain time
hereinafter mentioned. I direct that all of
my just debts, including funeral expenses
and the expenses of administration, be paid
by my executors. In order that my purpose
and ownership of property shall be clearly
understood, I hereby preface my devises and
bequests as follows: I have made no deed
to any person or persons to any real or per-
sonal property to take effect at or after
my death. I made five deeds to my children
and grandchildren September 21, 1894, which
were executed and acknowledged before T.
I made eight
T. Struble, notary public.
deeds to my children, grandchildren and
grandchild December 28, 1896, which were
also acknowledged before T. T. Struble, no-
tary public; other than these mentioned
deeds I have made none since the first men-
tioned ones of date September 21, 1894. I
am the owner absolute of the following real
property in the city of Portland, Oregon:
Lots 1 and 2, block 117, city; lot 4, block
116, city; lot 3, block 10, city; north half
lot 2, block 10, city; lot 8, block 111, city;
south half of lot 2, block 4, city; the east
75 feet and 11 inches of the south half of
lot 4, block 3, city; the north half of lot 4,
block 3, city; the south half of lot 3, block 3,
city. I have never made a deed to any per-
son or persons of any part or piece of this
I also own 757 acres,
property whatever.
more or less, of land in sections 10, 11, 14
and 15, township 1 north, range 1 east, Wil-
lamette meridian; a portion of this land is
outside of and a portion inside of the city
limits of Portland, Oregon. I have made
no deed to any of this acreage to any per-
son or persons at any time, except for Co-
lumbia Cemetery. It is my purpose to will
at this time all of my property, personal,
real and mixed, to my legal heirs in the

[blocks in formation]

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

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

Burnett, J., dissenting.

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

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

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

8. WILLS (8_535*) - CONSTRUCTION - DISINHERITING HEIR.

An heir can only be disinherited by express devise, or necessary implication.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1157-1160; Dec. Dig. § 535.*]

9. WILLS (§ 498*)-CONSTRUCTION-DEVISEES

-"ISSUE.

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

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

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

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

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

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

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

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