State v. Vance , 29 Wash. 435 ( 1902 )

The opinion o£ the court was delivered hy

White, J.

On the 16th day of September, 1901, an information was filed in thei superior court for Pierce county by the prosecuting attorney of that county against the appellant, charging him with the crime of murder in the first degree. On the: 17th of September, 1901, the appellant was arraigned, and a motion to. quash and a demurrer toi thei information were filed by Samuel F. McAnally, as attorney for defendant. On the 18th day of September, 1901, the motion ivas denied, and the demurrer overruled. On the same day the appellant entered a plea of not guilty. On thei 12th of October, 1901, a written motion, with thei affidavit of Samuel F. McAnally attached thereto^ and referred to in the motion, was made for the continuance “of the cause for a, reasonable time, suitable for the purposes stated in the affidavit. The affidavit, omitting the formal parts, was as follows.:

“Samuel F. McAnally, being first duly sworn, on his oath says: That he is one of the attorneys, for the above named defendant, and up to this time has been the only • and sola attorney for said defendant; that, the acts alleged to constitute the offense of which the defendant is charged were committed or alleged to: have been committed thirty-five miles from the city of Tacoma, at the village of Eatonvillei, which is not accessible by any rapid or convenient mode, of travel, and that 1» thoroughly investigate all necessary facts connected with, the defense of the defendant necessarily required a great deal of time and travelling and for the first twenty days that affiant was engaged as defendant’s attorney lie was suffering from the effects of a surgical operation in the throat and was thus prevented from working as effectually as he otherwise could and would have done; that the defendant has been and is a poor man unable to furnish his attorney with, adequate means of transportation and facilities for investigation, and that the time allowed for prep¡aration of this case for trial has been wholly inadequate for the performance of the duties required, aud hy reason of the shortness of time and other1 facts aforesaid the defendant has been and is unable to present bis defense in this cause on the 14th day of October1, 1901, being tbe time assigned for trial of the same without the consent of the defendant; that affiant is reliably informed hy a witness subpoenaed by tbe state, and by others, that there were, persons other than are now known to. the defendant, that is, whose identity is unknown to the defendant, were at or near the place where the offense is alleged to have been committed at or near the time the offense was alleged to have been committed, and that, affiant has made and continues to make strenuous endeavors to find said persons, but. so far has been unable to. do so.

“Of the foregoing facts affiant informed this court and the attorneys for the plaintiff at the. time this cause was noted for trial. That recently, towit: on the afternoon of the 10th day of this month the attorneys for plaintiff notified defendant through affiant, his attorney, of their intention to indorse on the information herein the names of two witnesses, J. E. ISToel and William Buchanan, concerning whose, testimony the defendant is not informed, but that, if their testimony is material, the same has been known, or with ordinary diligence might have been known, to the attorneys for plaintiff ever since the1 preliminary hearing in this cause, September 9, 1901, and that it would be an injustice to the defendant to. allow the indorsement of said names at this time; that the defendant and his attorneys are not desirous of delaying the trial of this cause any longer than is absolutely necessary for the administration of substantial justice', and that the only delay sought is for the purpose of ascertaining the identity of and securing the attendance of all persons as witnesses who' have1 any material information concerning the facts alleged in the information, and that such knowledge or information is not now in the possession of the defendant oi his attorneys.”

On the same day the court denied said motion, and ii> the order denying the same recited: “And the court having read the affidavit of Samuel F. McAnally in support of said motion . . . doth overrule and deny said motion.” The cause came on for trial on the 14th day of October, 1901, and the trial continued from- day to day, Simdays excepted, until the 24th day of October, 1901, when the jury returned a verdict as follows: “We, the jury in the case of the State of Washington, plaintiff, vs. A. P. Vance, defendant, find the defendant guilty of-murder in the first degree. L. A. Chamberlain, Foreman”— which verdict was received by the court and entered. Immediately after the reception of the verdict, and before being discharged, the jury handed the following to the court: “We, the jurors do recommend the clemency of the court in the case of State of Washington vs. A. P. Vance.” This was signed by all the. jurors. The jury was then discharged. The respondent moves for an order to strike from the transcript the affidavit of Samuel F. McAnally, above recited, for the reason that said affidavit has not been preserved or made a part of the record in the cause by any bill of exception or statement of facts. The affidavit is not referred to- in the judge’s certificate to.the statement of facts, and is not made a part of the record by any bill of exception. The affidavit and motion seem to have been filed as one paper. It appears from the order of the court made upon the motion and the motion itself that the affidavit was considered by the court in passing upon the motion. Prom this it can he readily determined that the affidavit formed part of tire proceedings in the court below, and that thei attention of the; trial court was directed to it. The affidavit was an integral and inseparable part of the motion, attached thereto', constituting a part thereof, and setting forth, in verified form, the grounds of the motion, and the order of the court expressly recites that the court “had read the same in support of the motion.” The order of thei court is a part of the record. It furnishes conclusive evidence that the affidavit was presented to> and considered by the trial court in passing on the motion for a continuance. In passing upon a similar question in Clay v. Selah Valley Irrigation Co., 14 Wash. 543 (45 Pac. 141), we said:

“There is nothing to show that they [affidavits] were all presented or read to the court below on the hearing of the motion.” ;

Por that reason we said that, “in order to' entitle them to a consideration here the fact that they were so presented should have been certified to by the court in some manner.” The journal entry of the order is a part of the proceedings of the court, and the court has full control of all such entries. § 4722, Bal. Code. Where such journal entry recites as a fact that in passing upon the motion the court read the affidavits in support of the motion, we think that fact sufficiently appears, and in such a case it is not necessary that, such affidavits be certified in a bill of exceptions or statement of facts. The cases cited by respondent of Clay v. Selah Valley Irrigation Co., 14 Wash. 543 (45 Pac. 141); Winsor v. McLachlan, 12 Wash. 154 (40 Pac, 727); State v. Howard, 15 Wash. 425 (46 Pac. 650); State v. Anderson, 20 Wash. 193 (55 Pac. 39); Armstrong v. Van De Vanter, 21 Wash. 682 (59 Pac. 510), are distinguishable, in the particular indicated, from the present casa The motion to strike tire affidavit for a continuance is, denied.

The respondent also' moves for the same reasons to, strike from the transcript the following papers, and records and journal entries: The challenge to panel of jurors and the verification thereof by Samuel P. McAnally; the record of the, meeting of the1 Pierce county bar and certificate thereto, to the effect that on June 28, 1901, the bar of Pierce county met, selected and nominated certain persons, whose names were to be submitted to the judges of the superior court of Pierce county, from which names jury commissioners were to bei selected, under the act, providing for and regulating thei selection of jurors, (Laws 1901, p1. 204); thei journal entry of the orders of the superior court, of Pierce county appointing jury commissioners under said act; the journal entry of the. superior court of Pierce county showing the appearance of the jury commissioners, and their oath of office as administered to them by one of thei judges of said court; the journal entry of the court containing the, list of jurors chosen by tire jury commissioners; the certificate of the jury commissioners and their verification thereto of the selection of the names of qualified jurors, and the deposit of such names in the jury box; the journal entries of the order of the court, departments 1 and 2, of date of September 14, 1901, ordering a panel of forty petit jurors in each department for attendance upon the court, to be drawn from the jury box, and the issuance of a venire to, the sheriff to summon such jurors,; the list of the petit jurors drawn under the order of September 14-, 1901, and certificate of the; clerk of thei court to, the same; and summons to the petit jurors- drawn tinder said order, and return of the sheriff to the same.

The challenge to- the panel, omitting formal parts, is as follows:

“Comes now the above named defendant, A. P. Vance, presents these his exceptions to', and challenges the panel of jnrors heretofore drawn in the above court September 14, 1901, for trial of causes in the ensuing calendar month of October, 1.901, and before whom this defendant is brought on to be tried, and his said challenge is made for the following reasons:

“1st That the j ury commissioners heretofore appointed by the superior court of the state of Washington for the county of Pierce, have not selected the names of all the qualified jurors in said county as far as they were able to ascertain the .same from the latest, tax rolls and poll hooks of said county, as required by section 3 of chapter 97 of the Session Laws of 1901, and in this connection this defendant alleges that there are upon the tax rolls of the aforesaid county 5,000 names of qualified jnrors, over and above those who are interested in any case pending in the court, by which the commissioners -were appointed, and the commissioners so appointed as aforesaid have only selected as the qualified jurors of the, county of Pierce less than 1,000 names, and in this respect, have failed to substantially conform to, the requirements of section 3 of Chapter 97 of the Laws of 1901, as aforesaid.

“2d. That, on the 14th day of September, 1901, when the panel hereby challenged was drawn, the jury commissioners and the clerk of the court failed and neglected to comply with all the! requirements of the law, providing for1 and regulating the selection of jurors in this, that the list of names so chosen and which comprises the panel hereby challenged was not, at the time of drawing said names, prepared and checked in open court with the list of jurors heretofore selected by the jury commissioners for this county, and as evidence, of this fact this defendant hereby refers, to and makes a part thereof, the certificate of Robert P. Rigney, clerk of tbe, superior court of Pierce comity, Washington, made and entered on the 14th day of September, 1901, and recorded in Journal 79, at page 276, in Department. 1, of above entitled court.

“3d. Tbe defendant further objects to and challenges the panel of jurors heretofore and on the 14th day of September, 1901, drawn by this court upon tbe ground that nowhere in the laws of 1901 or in any law of the state of Washington is there any provision for the summoning of said jurors to attend upon the above entitled court, and nowhere in said law is there any authority for the delivering of the venire of jurors constituting this panel, to any person for the purpose of summoning the said panel of jurors, for attendance upon the above entitled court, and this defendant alleges that the venire for the panel of jurors hereby challenged has been delivered to the sheriff of Pierce county, Washington, for the purpose of having him summon the said panel of jurors, and some of the same have been so. summoned, and there is no. authority under the laws of the state of Washington for said sheriff to perform said duty, and the above panel of jurors so. drawn by said jury commissioners is void.

“4th. That chapter 97 of Laws, of Washington, 1901, being tbe laws of Washington in reference to the regulating the selection of jurors passed by the Senate March 4, 1901, and passed by the House March 13, 1901, and approved by the governor March 16, 1901, is unconstitutional and void.

“5th. That, the panel of jurors that wore drawn as aforesaid and the portion thereof which now remains subject to call for jury duty for tbis: term of court, are challenged for the reason, that, after said panel was so drawn, this court did on the 1st day of October, 1901, excuse a large number of said jurors without sufficient cause for so doing, whereby this defendant was, prejudiced in this, that said panel as it thus remains so. decreased and depleted will not furnish a, sufficient number to constitute a full, fair, impartial jury to try defendant for the offense of which he is charged in the above entitled cause.'

“Wherefore defendant challenges and excepts to said entire panel of jurors and that portion of the same yet remaining.”

This challenge is verified by Samuel F. MoAnally, to the effect that, “he, has knowledge of the things, therein contained, knows tha contents thereof and believes the same to he true.” The verification is, a, p'art of thei challenge. This challenge was served on the prosecuting attorney, and filed with the clerk of the court in the cause on the 12th of October, 1901. On the same day the journal entry shows the following order in the case:

“And now on this 12th day of October, A. D. 1901, this cause came on for hearing on the challenge of the defendant to the panel of the petit jurors and the same was submitted to, the court, the plaintiff appearing by Walter M. Harvey and Charles O. Bates, deputy prosecuting attorneys for Pierce county, and the defendant appearing by Samuel F. MoAnally and J. L. McMurray, his attorneys, and tha court, having heard the testimony and argument of counsel and being fully advised in the premises doth overrule and deny said challenge, to' which ruling the defendant excepts and exception is allowed by court”

The law requires that challenges to the panel shall he in writing and sworn to,. § 6933, Bal. Coda The challenge sought to he stricken was in writing and sworn to, and was served on the prosecuting attorney and filed. The challenge so verified was, as appears from the journal entry, submitted to, the court. The verification to the challenge was a pari: of the challenge. The certificate of the clerk shows tha:, the challenge is a part of the files in tha case. It is net necessary that such a paper he made a part of tha record by a bill of exceptions or a statement of facts. When filed it becomes part, of the record. The other parts of the transcript moved against are parts of the general records of the superior court of Pierce county, required under the act of 1901, supra, regulating the selection of jurors, and by virtue of their nature and purpose, when properly certified by the clerk of the lower court, will be taken notice of by this court, independent of any bill of exception or statement of facts. They are part of the record of each particular jury case tried by a jury organized under the jury act of 1901. The motion to strike is therefore denied.

The first error assigned is the overruling of the defendant’s motion for a continuance of the trial, to give the defendant proper and reasonable time to prepare for trial. The affidavit of Mr. McAnally in support of said motion is hereinbefore set out. Thera were no opposing affidavits. The record discloses that there were forty-one days between the commission of the offense and the commencement of the trial. The preliminary hearing was on September 9, 1901, more than thirty days before the case was called for trial. The offense was committed at the village of . Eatonville. The affidavit claims that the place “was not accessible by any rapid or convenient mode of travel.” This is a mere conclusion. The means of access to- the place, and whether or not it was upon a traveled road, and the character of the surrounding country were not set forth. The judge of the court is presumed to: be reasonably familiar with the villages ini the county where he presides, and the ordinary means- .of access to the same. The affidavit fails to- disclose when the affiant was employed as attorney for the appellant. The record discloses that, when the information was filed, the affiant was acting as the attorney for the appellant. This was on the 16th of September, 1901. The fair inference from the record, at the time the motion was made, is that the affiant acted as attorney for the appellant at the: time of the preliminary examination. In one of the affidavits, for a new trial, ■ it is shown that Mr. McAnally acted as attorney for appellant from September 3, 1901. From the time1 of the filing of the information to the time of trial was twenty-eight days. Eatonville is .thirty-five miles from the city of Tacoma. So far as its accessibility is concerned, that is about all that the affidavit discloses. There is no showing that the attorney, after' his employment, was not able to go to Eatonville, where the offense was committed. The character of the investigation, or whether or not he made any investigation at Eatonville, is not shown. It is not shown that the poverty of the defendant prevented the investigation, of the facts. Wherein the poverty of the appellant deprived his attorney of the facilities for investigation is not shown. The statements in the affidavit-in this respect are general in theán nature, and mere conclusions, unsupported by any showing of facts.

Section 6929, Bal. Code, provides.:

“A continuance may he granted in any. case on the ground of thei absence of evidence, on the motion of the defendant, supported by affidavit showing the materiality of the evidence expected to he obtained, and that due diligence has been used to procure it, and also the name and place of residence of the witness or witnesses, and the substance of the evidence expected to he obtained; and if the prosecuting attorney admit that su’ch evidence: would be ■given, and that it he considered as actually given on the trial, or offered and overruled as improper, the continuance shall not he granted.”

Hone of the provisions of this section are complied with in the affidavit for continuance. The names of the witnesses are not given, nor is it stated with any reliability that any witnesses could he procured; neither does it state . what said witnesses, would be expected to testify to, or, in fact, anything about what their testimony would be. There was 11a opportunity for the prosecuting attorney to admit that the evidence would he given, and it nowhere shows or intimates that if thei ease had been continued, any testimony could havei been procured that was not procured at the trial. It shows- that the attorney for defendant has made- strenuous efforts to find said witnesses, but, has been unable so to do; but it does- not show that there is any probability of his ever finding any other witnesses than those whom he at that time knew of. In a recent case, State v. Newton, ante, p. 373, in passing on a similar motion, we said:

“The record fails to show even an attempt to comply with the requirements- of this section of the statute, and, without some such showing as the statute requires, a trial court, is not compelled to grant a continuance.”

The affidavit for continuance is insufficient under all the, decisions. The affidavit for continuance- was filed on the 12th day of October, 1901, and it refers to, the fact that on the 10th day of October, 1901, -the state notified appellant, through his counsel, of their intention to indorse on the information t-hei names of two witnesses-, nameily, J. E. ISToel and William Buchanan, concerning whose testimony the appellant is not informed, and then states that it would be an injustice to the appellant to, allow the indorsement of said names at said time; hut no continuance is asked for on account of the indorsement of the said names. It appears, from the, supplemental transcript filed by the respondent that, on thei 10th day of October notice was- served upon counsel for appellant that the state Avould apply on the 14th day of October for permission to indorse upon the information, as A\7itnesses against the ap>pellant, the names of Hoel and Buchanan, and on said 14th cla,y of October, 1901, as shown by the affidavit of Charles O. Bates and Walter H. Harvey, found in thei suppler mental transcript, appellant’s attorney was notified of what the state expected to prove by said witnesses, so- that counsel for appellant had full notice and knowledge of what was expected to fee proved by these witnesses, and no objection was made to- their names being indorsed upon thei information, and appellant in his brief does not predicate any error upon tbe ruling o-f the court allowing these two witnesses- to- be indorsed.

Developments which transpired soon after the trial, as shown by the affidavits of Lena Tudsen, Alice McCabe, and Samuel F. MeAnally, made in support of a motion for a new trial, should not be considered in passing upon the errte now under consideration. These matters will be considered further on, in passing upon the error assigned in overruling and denying defendant’s motion for a new trial. It is claimed in appellant’s brief, however, that Mr. MeAnally, appellant’s attorney, during the pendency o-f thei trial, oras suffering from the effects of a surgical operation, and therefore incapacitated from working on the preparation of the case as effectually as he otherwise could and would have dona The affidavit states- simply that for the first twenty days of the preparation of the case Mr. MeAnally was suffering from the effects of a surgical operation in the throat, and thus was prevented from working as effectually as ha otherwise could and would have done; but the record fails'to disclose that the defendant was in any way prejudiced. The record discloses that Mr. MeAnally, at least from the 12th day of October, 1901, had the assistance of another attorney, in the person of Mr. J. L. MeMurray, and it does not appear that appellant was1 unable to secure such assistance prior to that date, and after the case, was set for trial. While it is true that sickness and consequent incapacity of counsel are in some instances sufficient ground for continuance, still, the authorities cited by appellant in his brief are not in point on the facts disclosed in the affidavit In Bice v. Melendy, 36 Iowa, 166, cited by the appellant, it was held that a continuance should be granted where it has shown that the main attorney in the case; who was alone conversant with the facts, and relied upon to try it, was confined to his bed by sickness; and much of the time delirious, and conversation with him upon business was prohibited by his physician; and it was further shown that it was, impossible for any other attorney to prepare for the trial of the cause at that term, owing to> its importance and complexity. In the case of Thompson v. Thornton, 41 Cal. 626, cited by appellant, it was held that a continuance should be granted where a party had stated his ease to his attorney, and ivas advised that he had a good defense on the merits, and his attorney was, unable to- attend the trial by reason of illness of two member’s of his family, so extreme in its character that, noi prudent man could think of leaving them for any length of time in the condition they were in, and the party first ascertained this on the morning of the day of trial, and was unable to, procure counsel who understood the facts. The other cases, cited have but little bearing upon the facts in this case. The granting or refusing of a motion for a continuance is a matter resting in the sound discretion of the court, and we are satisfied, from an examination of the affidavit and the facts set forth therein, that there has been noi abuse of such discretion by the lower* court in refusing to, grant the continuance.

The second error assigned is in overruling appellant’s objection to the jury panel from 'which the jurors who tried the case were taken. The act of 1901, supra, providing for and regulating the selection of jurors in- counties from the first to, the seventh classes, provides that, by an order made in open court, and entered of record, the court shall appoint as jury commissioners two electors of thei county chosen hy the court from four electors recommended hy the har of the county at a. meeting of thei bar called hy the court for that, purpose. When appointed, the commissioners shall appear in open court, and take jointly an oatíi in the: following form:

■ “You do solemnly swear (or affirm) that you will, during your term of office, perform the duties of jury commissioners faithfully and to the best of your ability; that in selecting persons to he drawn as jurors you will select none but persons whom you believe to he of good repute for intelligence and honesty; that you will select none that you have been or may be requested to select; and in all your selections you will endeavor to promote only the impartial administration of justice; so help you God.” Laws 1901, p. 204. § 1.

Within a certain, time', the commissioners are required to “select, the names of all the qualified jurors in the county so far as, they may ha able to ascertain the same from the latest tax rolls, and poll hooks of the county and deposit the same written on separate slips of paper of uniform size, shape, and color in a box to he furnished hy the clerk of the court for that purpose.” The law further expressly provides that in selecting and depositing such names the commissioners shall in all things observe their oath, and that they, in addition, shall not select- the name of any person who is to them known to- he: interested in any causa pending in the court. Id. § 3. From this box the trial jurors are to. he drawn in the manner pointed out. The general laws of the state prescribe the qualifications of jurors as follows:

“A person is. n.ot competent to; act- as- a, juror unless he be: ¡

1. An elector of the state of Washington.

2. A male inhabitant, of the county in which he is returned, and who has been an inhabitant thereof'for the year next preceding the time he is drawn or called'.

3. Over twenty-one years of age.

4. In the possession of his natural faculties and of sound mind.

5. A person who has been convicted of a felony is not competent to act as a juror.” § 4735, Bal. Code.

Under the act of 1901 tire commissioners are not required to place the names of all qualified jurors of the county in the box. They are to select from the qualified jurors, so- far as they may bei able to ascertain, such persons only as the jury commissioners shall believe are of good repute for intelligence and honesty. In making this selection great discretion is lodged with the commissioners, and that discretion should not be disturbed, unless manifest abuse is shown. The intention of the law is, not as argued by appellant’s attorney to prevent discrimination between qualified jurors, but to select from qualified jurors honest persons, having the capacity to- know and understand, and readiness to- comprehend, and who- are not interested in causes pending in court-, and who will act impartially in the discharge of their duties as jurors. The affidavit of the appellant’s attorney is to. the: effect that he believes the statements in his affidavit to- be true, no-t that they are true. The good faith and fairness of the commissioners in making the selection is not assailed. We are asked to- conclude that because there are on the tax rolls of the county 5,000 names of qualified jurors- over those interested in any case pending in court,, that in selecting but 960 names from this number the; jury commissioners must have disregarded the requirements of the law. The law constantly presumes that public officers- charged with the performance of official duty have not neglected the same, "but have duly performed it, at the proper' time, and in the proper manner. In the absence of evidence to' the contrary, this presumption will prevail, and, where the rights of the public require it, the presumption in favor ox .due performance is liberal, and evidence to overthrow it must be clear. The. law requires the challenge to' bei proved to the satisfaction of the court. § 6933, Bal. Coder The order of the court further shows that in passing upon the challenge the court heard testimony. This testimony is not before us. Tie presumption is that such testimony sustained the conclusion reached by the court. There is no merit in the first reason assigned for challenge to- the panel. The second reason assigned in the challenge is without merit. The supplemental record discloses that the statute as to comparison and cheeking of the names of the jurors was literally complied with. The, third reason assigned in the. challenge is not commented upon in the appellant’s brief. This objection is without merit. If the eourt has the right to cause thei names of the trial jurors to be drawn from the jury box, it has the right to issue to the sheriff of tire county its process to require the attendance upon the court of the persons so drawn, and the law requires the sheriff to execute the process and orders of the court. Under the fourth reason of the challenge the appellant contends, we now quote from his brief:

“That said act of 1901 providing for and regulating the selection of jurors is unconstitutional and void, for the reason that the jury commissioners provided for thereby do not, either by election or tbe method of their appointment, hold any official or representative position as to the people of the counoy legally authorizing them to act for, and as the representatives of the people of, the county in the matter of selecting citizens and voters of the county for jury service. The legislature has no right or authority to delegate to a given class, thei members of a certain profession, the exclusive right and power to select and designate a limited number of voters from whom the court must select thei jury commissioners. In law the people of a county are all and equally interested in the, selection of jurors to aid, by the exercise of their functions as jurors, in the enforcement and administration of the law, and under our system' of government, based upon the idea of equal rights, all thei voters of a county have equal rights and privileges in the matter of selecting jurors through some official occupying towards them, by virtue of their action in the premises, a representative position or capacity. Theoretically all are equally interested in the administration of the law, and are entitled to an equal voice in selecting the instrumentalities of its administration, and the members of no particular profession, trade or calling can be constitutionally invested with special or exclusive powers in the selection of such instrumentalities. Under this act the bar of the county recommends four electors of the county, two of whom are chosen by the court as the jury commissioners. This is, in substance, an election of thei jury commissioners by the bar, for the court is confined in its choice to* the four designated by that body, and. the fact that the bar designates four electors instead of two does not change the. principle involved. How, if the legislature had authority to vest this power of election or selection in the members of the legal profession of the county, it must be conceded that it would have equal authority to vest it in the members of any other class, calling, occupation or condition, as the members of the medical profession, the ministers of religion as a class, or the ministers of any particular religious denomination, or the mechanics of the county as a class, or mechanics following some particular trade, or men engaged in some particular line of business, as bankers, grocers, clothiers, hotel keepers, or men who are members of secret societies, or of some particular secret society or order; in short, the 'difieren!' classes and conditions of men equally entitled with- the lawyers to be invested by the legislature with this power in the selection of juries through their appointees might be indefinitely multiplied. Suppose that instead of investing the, lawyers with, this power the legislature bad conferred it upon some other class of citizens, as, for instance, the bankers, the bakers, or the blacksmiths of the different counties of the state, would it not be generally and correctly recognized and contended that tlie legislature thereby conferred upon that particular class, as a class, powers and privileges, not enjoyed by and belonging equally to other citizens of the state ? that the law was class legislation and violated the provisions of § 12 of article 1 of the state constitution, which reads: ‘ISTo law shall be passed granting to any citizen, class of citizens, or corporation, other than municipal, privileges or immunities which, upon the same: terms, shall not equally belong to all citizens or corporations V

“There seems to he no, good ground for distinguishing in this respect, between lawyers as a class and members of any other calling as a class. ISTo class to which the legislature attempted to exclusively delegate the power it has by this act attempted to, confer on the legal profession would bold or exercise such power, either by virtue of election or by authorized appointment, that- would constitute, such class the legal or official representative of the body of the people.

“The power- the, legislature by this, act attempted to confer on tlie members of the legal profession is in, its nature arbitrary and exclusive and in conflict with the fundamental rights of the body of the, people* of the underlying principle, of constitutional equality, which is one of the essential elements of a representative, democracy, such as our government is.

“If, as contended by appellant, the act under consideration is class legislation for the reason that it arbitrarily confers upon a certain class of citizens rights, powers, and privileges and deprives all other citizens and classes of citizens of the. same rights, powers, and privileges, and those rights, powers, and privileges are of a. public nature and should equally belong to all the voters of the different counties of the state-, and said act. is therefore unconstitutional and void, it follows that the act is not a law of the state, and that no. jury selected or organized pursuant to its provisions was a lawful jury, and m> verdict of such a jury is of force or effect and constitutes no warrant for any judgment or sentence based thereon.

“Hence the jury in the case at bar having been drawn and organized under the provisions of the jury act of 1901, if said act is unconstitutional, said trial was a nullity, it was not in accordance with due process of law, and the judgment and sentence based • thereon should he reversed and a new trial granted.”

Under the constitution of the state, the defendant was entitled to a, trial by an impartial jury of the county in which the offense was committed. The mode of the selection of jurors, and their qualification to sit as triers, limited only by the qualification that they shall be impartial, is left to the legislature. An honest and intelligent juror is more, apt to be impartial than a dishonest and ignorant one. So; far as the. act of 1901 aims to secure for jurors honest and intelligent men, it is in harmony with that provision of the constitution which guaranties to an accused person a trial by an impartial jury. There is no provision in thei constitution requiring that the selection of jurors shall he by officers elected by the people. Attorneys are sworn officers of the court, admitted as such by its order, under laws regulating their qualifications and admission. They were such officers when the constitution was adopted, and they remain such. They are required to maintain the respect due courts, of justice. They aid the court, and perform important functions in the administration of public justice and the- enforcement of the law of the land, and in this respect they differ from the hanker, the baker, and the blacksmith, referred to by appellant’s counsel, who, as citizens, have no such duties to' perform. Under the act, they in no- sense appoint the jury commissio-ners. They nominate, and to that extent are required to- aid the eo-urt in the selection of such commissioners. ISTo privilege o-r immunity, within the meaning of the constitution, has been granted to them under the act under consideration. The performance of a duty only has been imposed upon them as officers of the1 court. Just as if the legislature had imposed the duty of nominating such commissioners upon the clerk of the court and the sheriff. The right given to the members of the- bar to- simply recommend eligible persons for selection as commissioners is not the conferring of a privilege or immunity upon any citizen- or class of citizens, within the meaning of the constitutional prohibition. The privileges and immunities therein referred to- pertain alone to- those fundamental rights which belong to- the citizens of the state by reason of such citizenship-. These terms, as they are used in the constitution of the United States, secure in each state- to- the citizens of all states the right to- remove- to- and carry on business therein; the right, by usual modes, to acquire and ho-ld property, and to- protect and defend the same in the law; the rights to the usual remedies to- collect debts, and to- enforce other personal rights; and the right to- he exempt, in property or persons, from taxes or burdens which the property or persons of citizens of some other state axe exempt from. Cooley, Constitutional Limitations (6th ed.) 597. By analogy these words as used in the state constitution should receive a like» definition and interpretation as that applied to them when interpreting the federal constitution. The right simply of recommendation, which it might be said has been conferred by tire act under consideration, and by the order of the court made iu accordance with the provisions' of that act, is not, in its very nature, such a fundamental right of a citizen that it may he said to come within the prohibition of tbe constitution, or to have been had in mind by the framers of that organic law. A statute can be declared unconstitutional only where specific restrictions upon the power of the legislature can bft pointed out, and the: case shown to come within them, and not upon any general theory that the statute conflicts, noth a spirit supposed to' pervade the. constitution, but not expressed in words. Smith v. Seattle, 25 Wash. 300 (65 Pac. 612). We think the act, in the respect complained of, is constitutional.

The fifth reason assigned in the challenge is not commented upon in the appellant’s brief, and we have not discovered anything in the record sustaining the same.

The third assignment of error is in allowing the state to peremptorily challenge the jurors McBreen and Giblett after the: statutory number of peremptory challenges allowed to the state had been exhausted. In relation to these challenges the record shows this: Twelve jurors being in the box, and having been passed for cause by both the state and defendant, the court announced that it was the state’s, first peremptory challenge. The state exercised its first peremptory challenge. The defendant thereupon exercised two peremptory challenges. The state thereupon exercised a second peremptory challenge. The defendant thereupon exercised a third and fourth peremptory challenge.. The state thereupon exercised a, third peremptory challenge. The defendant thereupon exercised a fifth and sixth peremptory challenge. Whereupon the following took place: The court announced it was the state’s fourth peremptory challenge, whereupon Mr. Harvey, for the state, announced that the state was satisfied with the jury. Counsel for the state being asked by the court if they waived their challenge, replied that they did. Thereupon the court announced that it was the defendant’s seventh peremptory challenge. Whereupon the defendant exercised the seventh and eighth peremptory challenges. The following then took place: Thei court announced that it was the state’s fifth peremptory challenge. 'Whereupon Mr. Iiarvey, for the state, announced that the state waives its fifth peremptory challenge’, whereupon' the defendant exercised its ninth and tenth peremptory challenges,, and one J. W. Kendall was called as a juror, and passed for cause by both the state and the defendant, and thei court announced that it was .he state’s sixth peremptory challenge, whereupon the state, excused J. W. Kendall. Thereupon K. Giblett was called, and having been passed for cause, the court announced that it was the defendant’s eleventh peremptory challenge, which was exercised by the defendant. Thereupon Charles E. McBreen was called, and having been passed for cause by both the state and the defendant, the court announced that it was defendant’s twelfth and last peremptory challenge. Whereupon Mr. McMurray, for the defendant, announced that the defendant passed the jury. The following then took place: Whereupon the court inquired if the state desired to exercise any more challenges.

“Mr. Harvey: We will excuse Mr. McBreen. Mr. McMurray: Upon what grounds, ? The court: They have only exercised four of their peremptory challenges, and they have six. Mr. McMurray: They have waived it. The court: The statute* provides that their waiving to’ exercise a challenge does not prevent them from using it. Mr. McMurray: We, object, to their using it at this time. The court: The objection of counsel is* noted and exception allowed. The court: I desire to state that my ruling is that they can only exercise that challenge as to, those who have been called into, the jury box since they refused to exercise their challenge. They are limited to those jurors who, have been called in since they refused to exercise the challenge, and this, jrror having been called into thei box since the time’ they have exercised any challenge^ I hold that they are permitted to exercise the challenge to this juror. Mr. McMurray: I understand the court- to state that it was their sixth- challenge when they challenged Mr. Kendall. The court: It was not- a correct statement of the facts.” >

Whereupon E. E. Stinson was called as a juror, and having been passed for cause by both the state- and the defendant, the. court announced again that it was- the defendant’s twelfth and last peremptory challenge. Whereupon the defendant exercised tha,t challenge by excusing Mr. Stinson. Whereupon W. II. Pa-gei was called, and sworn to answer questions, and having been passed for cause by both the state and the defendant-, the court inquired if there were any further challenges. Whereupon the state excused Mr. Giblett-. Tbe- defendant then objected to the state excusing this juror, on the ground that the state, having waived their challenge1, should not- now he permitted to exercise it, and the court said: “Mr. Giblett having been called into' the box since the state passed a challenge, the challenge will be sustained.” To which exception was noted by the defendant. Mr. Giblett- was excused, and another juror called. Whereupon the court announced that the state and the defendant having both exercised the challenges provided by law, the clerk would now swear the jury to try the case. Whereupon the jury was sworn to try the case. It is contended by appellant that the court erred in allowing the challenge of the st-ate- to the jurors McBreen and Giblett, claiming that their peremptory challenges had been exhausted before the exercise of these two.

The statute in regard to the right of challenge is as follows :

“The jurors having been examined as to their qualifications1, first by the plaintiff and then by the defendant, and passed for cause, the peremptory challenges, shall he conducted as follows, towit: The plaintiff may challenge one, and then the defendant may challenge one, and so- alternately until the peremptory challenges shall he exhausted. The panel being filled and passed for cause, after said challenge shall have been made by either party, a refusal to challenge by either party in the said order of alternation shall not defeat the adverse party of his full number of challenges, hut snch refusal on the part of the plaintiff to exercise his challenge in proper turn shall conclude him as to the jurors once accepted by him, and if his right he not exhausted, h:is further challenges shall he confined, in his proper turn, to talesmen only.” § 4987, Bal. Oode.

Counsel for appellant in their brief contend that, the state waiving at the* time thei right to use two of the peremptory challenges allowed it exhausted its right to use these challenges. The statute above quoted, iu terms, gives the party refusing to exercise his challenge in proper turn the right to use these challenges upon jurors not in the box at the time of snch refusal, if his right be not exhausted. The waiver of the right to challenge by the prosecuting attorney when the court announced that it was the state’s fourth peremptory challenge and when the court announced that it was the state’s fifth peremptory challenge did not exhaust two peremptory challenges to which the state was entitled. The state by waiving these two challenges did not thereby lose the right to exercise them, afterwards on jurors not in the box when the challenges were waived. They simply relinquished their right to challenge the jurors then in the box. The situation after the defendant had exercised its fifth and sixth peremptory challenges was that the state was willing to take the twelve men as they ware then in the box as the jury to try the! case, and the announcement that the state was satisfied with the jury meant that the state was satisfied with the jury as it then stood, and that they waived their fourth peremptory challenge to the jury as it then stood. At that time, had the defendant’s counsel refused to- challenge further, under our statute the right of both parties- to- challenge would have been exhausted, because no- new jurymen were called into- the box after the waiver of their peremptory challenge. When the state announced that they waived the fourth peremptory challenge, the -only reasonable construction that can be placed upon that is that they waived this challenge as to- the jurors then in the box, but, if the personnel of that jury then in the box was changed by bringing in new. men, then they had a right to exercise these challenges as to the new jurors. It is undoubtedly the intention of the .legislature that the defendant and the state should have the right to actually exercise twelve and six peremptory challenge©, respectively, and, as nearly as possible, in making said challenges conform to the rule laid down in State v. Eddon, 8 Wash. 292 (36 Pac. 139); but the manner of exercising these peremptory challenges alternately is no absolute rule of right. That they shall preserve this alternation as far as practicable is all that the statute requires, or this court held in the case of State v. Eddon, supra. While, ordinarily, the state is to challenge one peremptorily, then the defense two, and so on, until the challenges are all exhausted, if, by conforming to- this rule as far as practicable, the state should happen to have the last peremptory challenge, it would not be error. The statute does not give as a right the last challenge to the defendant. It aims to- preserve to- the plaintiff the full number of six challenges by providing that the refusal of the plaintiff to exercise his challenge in proper time shall conclude him only as to jurors once accepted by him, and if his right is no-t exhausted when he refuses to exercise his challenge, his further challenges shall be confined to jurors that were not in the box when be refused to exercise bis. challenge, notwithstanding that the defendant may then have exhausted all his peremptory challenges.

Before passing on the remaining errors assigned, it is necessary toi malee a statement of the1 facts as disclosed by the evidence. For thirteen or fourteen years prior to the homicide charged in the information, the appellant lived at or near Eatonville., a small hamlet or village in. Pierce county, about thirty-four miles from Tacoma, For the last, five years of that time he lived in Eatonville, working as a, blacksmith and farming. The appellant is a married man, having a wife and two young children. Charles F. Franklin, the person alleged to have been murdered hy the defendant, at the time of the homicide was living, and had been living for fourteen year’s previous thereto’, with his family, consisting of his wife and eleven children, on a farm about two1 miles from Eatonville. Franklin was a man about fifty years of age, the appellant was about fifteen years younger. The appellant and the deceased had lived 'near together in the same neighborhood in Collin county, in the state of Texas, and were acquainted there. The time of their acquaintance covered a. period of about, twenty years. Many of their acquaintances around Eatonville testified that the personal relationship, between the deceased and the appellant were neighborly and friendly; one: witness testifying to this friendship as existing on the: 1st day of September, the day before the homicide:, when the deceased and the defendant “were talking to> one another and joking as usual.” Mrs. Franklin, the widow of the deceased, testified that she had been married to the de1ceased twenty-seven years, and that deceased never liked the appellant, Mr. Van Eaton testified to an intimate acquaintanceship wilh the deceased and the appellant, and knowledge of their social relations toward each other for twelve years; that before the public the deceased and the appellant got along very well, “hut both of them cordially hated the other;” that, they expressed it plainly to him; that two weeks before the homicide the appellant complained to. the witness about, the deceased interfering in certain road matters. Mr. Groe testified that once or twice during the summer the appellant told him that the deceased meddled with some of his matters, and that he didn’t like him. Mr. White testified that he heard the deceased and the appellant talk unfriendly in regard to each other. The testimony also discloses that. the. relationship existing between the deceased and one Herman Kendall at the time of the homicide, and for some, time prior thereto, was not friendly, and during the same time Kendall and the appellant Avere enemies. The testimony discloses. that there Avas some bitterness of feeling existing hetAveen the appellant and Van Eaton, Groe, Tomlin, and other’ principal, inhabitants of Eatonville. and vicinity, groAA'ing out. of his action and position relative to the erection of a school house and the improvement of roads, and that they Avere anxious to get the appellant out of the office of road supervisor, and to have him removed from Eaton-ville, and this the appellant had knowledge of. Mrs. Vance, the Avife of the appellant, testified that on the Monday preceding the homicide at Van Eaton’s store in EatonAdlle she. had a conversation Avith Charles Williams, a nepheAV of Van Eaton’s, and a. clerk in his store, in Avhich Williams, said to her: “I see you didn’t leave your husband on Saturday as you intended.” She Avas surprised, and asked him AAdrat- he meant. Ho ansAvered: “Ho. you mean to say that Herman Kendall hasn’t told you the Avay your husband has been carrying on Avith that girl ?” The Wednesday or Thursday folloAving that, corwersation, at a dance, Williams, in conversation AAdth her, referred' again to the matter, and said: “It looked as if I would be ashamed to live with him,” and ivanted to know if she was afraid to leave ker husband. That she answered that she did not know. Her husband might go away, and get desperate. Williams answered: “Let bim go away;” that was what they wanted. If he didn’t, there were three or four of them able to manage him all right. The testimony shows that she left her home without the knowledge of her husband on tbe Friday following this conversation, and went to her mother’s house, about five miles from Eatonville^ taking her children with her. That her husband was in Tacoma when, she left. That she returned the following Monday to' her home, to' get, some of her things, first stopping at Mrs. Van Eaton’s. The appellant came to his house while she was there. That she told him some things she heard. That she did not tell him the conversation with Williams. The court, on the objection of the state, did not permit her to state what the conversation was that took place between her and her husband at tbe house. She remained about ten or fifteen minutes. When she left, her husband did not aci natural. She never saw him as mad before as he was then. She testified that she supposed he wras mad, thinking of what trouble people bad caused botb of them. When she left she went to' Mrs. Groei’s hotel. This was after 12 o’clock. The appellant testified that in the conversation at the home his wife said something as to a conversation with Williams; that he tried to get her to tell him what Williams had said, hut she refused; that she left between 1 and 2 o’clock; that he remained after his wife left about ten minutes, thinking the¡ matter over; that after his wife left, Jimmie Franklin, the deceased’s little boy, came to' the gate, and said: “Father wants you to come over and shoe §, horse for him.” He answered: “I don’t feel like -work today. Tell your father I can’t do the work.” After the hoy left he thought, over the matter, and concluded to. go and open Ms shop; and then hunt Mr. Franklin up; and shoe his. horse. He went and opened his shop. After opening his shop, he says he went down to the hotel to. look for Mr. Franklin, and he also thought he would probably see his wife. Mr. White, the bartender at the Groe hotel, testified that a few minutes after 2 o’clock of the. day of the homicide the appellant came into1 the bar room of the hotel, called for a drink of brandy, and he gave it to him; that the appellant leaned over1 the baa*, close to the witness; and said: “I’m a widower.” He said his wife had left him. He struck down on the bar and said, “By -I will kill somebody before night” The witness said, “You’d better not, Alex. I wouldn’t.” The appellant answered: “By-I will. I will kill some--before night.” Then the appellant struck the bar several times. Then walked towards the door leading from the bar into the main hotel. One of Ms revolvers fell upon the floor. He kicked it and picked it up>, and said: “I have got a.--good notion to shoot all the bottles down from behind the' bar.” He stepped around and made several different threats. Finally he went towards the door again, and said: “-- - sons of-. I will kill them just as quick as I get in sight.” Then he came back, and started towards the north door, and says: “I will shoot the first-son of-that comes up before me,” or something just like that. The words any way, “That runs up against me.” “I will shoot the first--■ son of-that runs, up against me.” Then he went out. Charles Williams testifies that he and the deceased were sitting on the porch of Mr. Van Eaton’s store. That the appellant came out of the bar room of the hotel, and yelled about as loud as he could, — some of the witnesses sa.y let out a “whoop,”— and started to walk right over towards the store. That he came right up to the store porch, and said he could lick “any g — ■ d— man in Eatonville.” That he “conld lick and son-who stood in with Herman Kendall;” and he said next: “Charley — I can lick yon too.” That was gaid to the deceased. The deceased smiled, and said: “1 am not looking for a fight, hut if you lay those down I will try you a round.” The appellant had two revolvers in a holster on a belt around his waist. When the deceased told him to “lay those down,” he took the revolvers out, and threw them down on a chair sitting on the porch. The appellant then stepped towards the deceased. The deceased got up'. The appellant struck at him twice1. Then the deceased struck back. Then the appellant turned, and reached .for the revolvers, and got them,; the deceased in ihe meantime apparently advancing to take hold'of the appellant with both hands. The appellant turned around and fired. Then the deceased grabbed the appellant, and two more shots were fired immediately, and the deceased forced the appellant backward off the end of the porch, and they fell, the appellant lying underneath the deceased. The witness ran up and grabbed the appellant’s hands that the revolvers were in. The appellant made a move:, as if to* shoot, the witness The witness and a Mr. Potter- then grabbed the revolvere, and took them away from the appellant. The witnesses and others after tying the appellant, looked after the deceased, and found that he was shot, and in a, few minutes Ei-anklin died from the effects of the wound. The witnesses vary somewhat as to1 what was said when the appellant came up- to the store porch. The variance is not material. Three shots were fired. Thei evidence disclosed that three cartridges were gone out of the revolvers. The testimony of all the witnesses except the appellant is to-the effect- that when on the porch the appellant and the deceased arrived opposite to' the chair where the revolvers were lying, appellant grabbed for the revolvers, and that Franklin did not, hut that the deceased grabbed the appellant’s wrist or arms. The; appellant testified that both the; deceased and himself reached for the revolvers. The statement contains over nine hundred pages of testimony, but we have stated all the main facts. The opening statement as to the nature of the defense' is not in the record. It appears, however, from other parts of the record, that- the only defense attempted to be made was that the witness Williams tried to shoot Vance;, and in such attempt shot and killed the deceased. Evidence in support of this contention was introduced by the appellant. There can be no- doubt from the testimony that the appellant fired the fatal shot, and thei jury was justified in so finding.

The fourth error assigned is repeated rulings excluding evidence offered by the appellant for the purpose of showing that he had serious and distressing domestic trouble, and the conseqixent disturbed and abnormal condition of his mind at the time of the homicide, and immediately prior thereto. The fifth error assigned is in repeated rulings excluding evidence offered by the appellant for the-purpose of showing that immediately prior to the homicide he had serious and distressing domestic trouble, and thereby showing the condition of his mind at the time1 of the homicide, the conditions and circumstances by which he was then surrounded, influenced, and actuated, and the, true meaning and application of what he. said and did immediately before the homicide. We will consider these two assignments together. Thei following are a sample of the questions objected to- on which the- evidence; was excluded: “Mrs. Vance^ did yo-u and your husband or either of you have any difficulty at all in your domestic relations until up about the month of cMay last, ?” “On or about the month of May, 1901, late in the spring of this year did anything happen to- cause trouble on your account between you and Mr. Vance?” “I will ask you whether or not it is a fact that during the last two or three months information, reported information, came to- you from other* people, through Mr. Kendall, 'that had anything to do Avith causing trouble betAAre.en you and Mr. Vanee ?” “Please relate, Mrs. Vance; Avhat took place between you and your husband when you returned from Mr. Van Eaton’s doAvn to. your home on the day of the shooting?” “When you went on Friday preceding the shooting what did you do- Avith the children?” “Mr. Vance, I will ask you Avhat if anything occurred about the month of May of this year, if anything did occur to- disturb the domestic relations theretofore existing between yourself and your wife?” “What Avas the- condition of affairs existing between you and your Avife (on tbe day of the shooting) at the time she left the house- after this conversation ?” “Why didn’t yo-u feel like Avo-rk ?” Striking out an answer of Vance to a question to the effect “that his wife told him- the day of the shooting that she couldn’t stand the talk.” “What did you Avant to see her [his wife] for ?” “Why did yc-u say to WBiite that you had been left a widower?”

The counsel who- prosecutes this appeal for the appellant did not represent him in the court below, and had nothing to do- with presenting his case to- the jury. The appellant’s defense- was that he did not kill the deceased, but that Charles Williams fired the fatal shot which took away the life of Charles E. Eranklin. The- appellant’s counsel now claim that under the plea of not guilty any defense can he interposed, whether consistent or not. This, is true. But the proper inquiry in the case at bar is not what defense might have been interposed, but AAdiat defense Avas actually interposed. How could this testimony be at all relevant or material to the defense that was interposed? Learned counsel for the appellant does not contend that the testimony was pertinent to show that appellant did not fire the fatal shot, or to- show that some other person fired the shot. The trial court, when this class of testimony was first sought to be introduced, excluded it, upon the ground that the appellant’s defense was that he did not fire the shot, and for that reason the testimony was not relevant. We think the ruling of the trial court was right. The court has a right to require of a defendant in a criminal case that he shall point out, when .objection is raised to testimony sought to< be introduced by him, how and in what manner the evidence is material and relevant. Howhere during the progress of the trial ivas it intimated that the appellant was insane, or that his reason had become temporarily dethroned by reason of his domestic troubles at the time the shot was fired. This testimony might have been material to- show such a state of facts. But this' claim was not put forth by the appellant. He. claimed to> be rational and sane, and he went upon the witness stand, and testified to his acts and doingsi on that day. The testimony sought to be introduced was not part of the res gestae. The court was not inquiring into the marital troubles of the appellant and his wife. It was sufficiently shown by the evidence that the appellant, a short time before the homicide, was troubled and angered because his wife separated from him. This was all that was necessary. It was unnecessary to show in detail the cause for the separation, and when the trouble first originated leading up' to the separation. To permit this would be; to burden the case with multiplied issues, tending to confuse and mislead the jury.

The sixth error assigned is in giving the following instruction :

“If the intention upon committing a homicide was to take life the killing was done purposely; if the killing was accompanied by circumstances showing a. mind fully conscious of its purposes and if before the killing sufficient time ha,d elapsed to enable the mind to have considered the matter and to have formed a design to kill and said design had been formed, the killing was designed and premeditated ; even if you should find the malicious purpose and absence of excuse, cause or, provocation necessary to constitute murder in the first degree, but should entertain a reasonable doubt as to- whether there- was any premeditated design to kill, then you should find the defendant guilty of murder'-in the second degree.”

The seventh error assigned is in giving the following instruction:

“In this connection yon are instructed that malice as the word is used in defining criminal offenses denotes a criminal act done intentionally without just cause or excuse-. The intention is. an inference of law resulting from the doing of the act, except in rare instances where the. intention is expressly declared by the wrongdoer, and except, where the circumstances rebut the- presumption of its existence! Malice- is presumed where one person deliberately injures another'. It is the deliberation with which the act. is, performed that gives it a malicious character. It is the opposite of an act performed under sudden o-r uncontrollable passion which prevents the- deliberation of cool reflection in forming a purpose. Hence, if in this case- you should find that the act charged is not, when committed, accompanied by wrong intent and cool reflection, but was on tlie contrary the result of sudden and uncontrollable passion produced by adequate cause or provocation, then the de>fendant would he g.iilty of no higher degree than manslaughter.”

The eighth error assigned is in giving the following instruction :

“The law you will take from the court., but you are tlie so-le judges of the facts in this case. You will determine the facts from the testimony in the1 case a.nd render a true verdict upon the facts found by you regardless of all other considerations. While you are the sole judges of the facts, -the law has left the penalty to he, imposed with the court alone to determine, and this responsibility is with the judge after vour verdict has been found. It is your duty only to, determine the guilt or innocence, of the defendant.”

When the, co-urt had charged the jury, the, appellant, took sixteen exceptions to, the instructions and refusals, to give requested instructions, and caused them to be noted. On the. 24th day of October, 1901, the verdict was received, and the jury discharged. On. the 13th day of ^November, 1901, the appellant., through his present attorneys, filed additional exceptions to the instructions, and in these additional exceptions for the first time excepted to the instructions now complained of.

“Exceptions to, a charge, to a, jury, or to, a. refusal to give as a part of such charge instructions requested in writing, may "be taken by any party by stating to, the court, after the jury shall have retired to consider of their verdict, and, if practicable, before the verdict has been returned, that, such party excepts to the same, specifying by numbers of paragraphs or otherwise the parts, of thccharge, excepjted to^ and the requested instructions the refusal to give which, is excepted toq whereupon the judge shall note the exceptions in the minutes of the trial, or cause the stenographer (if one is in attendance) so to, note the same.” § 5053, Bal. Code.

The object of the statutory provisions is that, by compelling counsel for the. accused to take'their exceptions after the jury has retired, and while, they are deliberating, the attention of the trial court may be called to, the objections and exceptions made by counsel to the instructions given to the jury, and an opportunity be given of recalling the jury, and correcting any errors which ma.y have been made. If the practice now insisted upon in this case is to prevail, not only would the trial judge have no opportunity of correcting any misstatements of the law which lie may make to the jury, hut opportunities would he given to counsel for accused persons to urge on appeal many important questions which the trial court had never been called upon to determine'. This is not the policy' of the law. The courts uniformly hold that, where the statutes provide that an exception to> the giving or refusing of an instruction is to- he taken after the jury retire, and before the verdict is rendered, an exception taken, or attempted to' he taken, later is unavailable on appeal. But appellant contends that it was not practicable to take the exceptions at the time the sixteen exceptions were taken and noted, and that the statute contemplates that in such a case they may he taken afterwards. The record discloses to us that it was practicable to have "alien these exceptions after the jury retired. All that was incumbent upon the appellant's attorneys to do after the jury had retired, and before the rendition of the verdict, was simply to state, to' the court that they excepted to the instructions just as they did in the other sixteen instances, or, if there was not sufficient time before the rendition of the verdict they should have asked the court to extend the time to take their exceptions. Under the circumstances of this case, the affidavit of one of the attorneys who conducted the trial below, to the effect that it was not practicable to examine and consider intelligently the instructions, trill not he considered in face of the record.- We will not pass upon these assignments, or cxitically examine them, further than to say that we pxereeive no prejudicial, error in the instructions when taken in consideration with the other instructions and the facts in the case.

' The ninth assignment of error is the refusal of the court -to give instructions ISTos. 4, 5, 6, 8, 11, 13, 15, 16, 17, 21, 22, 23, 25, 26, 30. The only errors contended for hy the appellant in his brief is the refusal to- give instructions Ros. 5, 6, 11, and 30. Refusal to give instructions 5 and 6 requested hy defendant was not error. Instruction Ro. 5 requested hy defendant is as follows:

“A mutual combat is where two persons upon a sudden quarrel, mutually and upon equal terms, whether with or without weapons, enter into a fig’ht, and in such case, if one he killed, the crime is only manslaughter, no matter who provoked the fight or who struck the first blow.”

While this instruction may state correctly an abstract proposition of law, the evidence in this case does not justify the giving of this instruction. It presumes that the killing was done in a sudden quarrel, which was commenced and ended hy two persons on equal terms. This instruction might have misled the jury, in view of the testimony. This instruction, in any event, is covered hy the court’s instruction defining manslaughter, hereafter referred to. Instruction Ra 6 requested hy the defendant was as follows:

“If it appears from the evidence in this case that the defendant and the deceased entered into a mutual combat, and at the commencement of the fight attacked each other on equal terms, and on a sudden, without previous intention to kill the deceased the defendant in the course of the fight, in the heat, of passion, snatched up> a deadly weapon and killed the deceased, it is only manslaughter and your verdict should he such.”

The following instruction was given hy the court:

“If it appears from the evidence in this- case, that the defendant and the deceased entered into a mutual combat, and at the commencement of the fight attacked each other on equal terms, and on a sudden, without previous intention to kill the deceased, the defendant, in the course of the fight and in the- heat of passion, snatched up- a, deadly weapon and killed the deceased, it is- only manslaughter, but, if you believe from the testimony beyond a reasonable-doubt, that the defendant in the course of the fight snatched up the deadly weapons and purposely and of his deliberate and premeditated malice killed the deceased, then he would be guilty of murder in the first degree; or if from the evidence you are satisfied beyond a reasonable doubt, that in the course of the, fight the defendant snatched up the deadly wea,p,on and purposely and maliciously, but without deliberation and premeditation, killed the deceased, then he would he guilty of murder in the second degree.”

In this instruction the court again correctly defines the different- degrees of murder, and tells the jury what degree a person would h© guilty of under certain circumstances, and this instruction covers appellant’s requests 5 and 6.

Instruction. Ho. 11 requested by defendant is as follows :

“Should the jury believe from the evidence that Charles Franklin died from a mortal wound inflicted by a gunshot, and if the jury further find that some other person than the defendant, had the same opportunity to firei tire shot that inflicted said mortal wound, and that all the circumstances of the. affray point as clearly to some other person as having fired the fatal shot, as the defendant, then these facts are sufficient to raise a reasonable doubt in the mind of thei jury as to the, guilt of the defendant and the. jury should acquit him.”

The refusal of the court to give this instruction was not excepted to by the defendant until after the trial, and for the reasons hereinbefore stated this assignment of error should not now he considered. This instruction is -open to the criticism that it is a comment upon the testimony. The jury in this instruction are not told that if they should find that some; other person than the defendant had the same opportunity to- fire the shot that inflicted the said mortal wound, and that all the circumstances of the, affray point as clearly to some, other person as having fired the fatal shot as to the defendant, that they might take, these facts and circumstances into1 consideration in arriving at their verdict, or in arriving at whether or not it has been shown beyond a reasonable doubt that the defendant fired the fatal shot; but they are told that these facts, if found by them, are sufficient to raise a reasonable doubt; the instruction being, in effect, to. tell the. jury what facts would raise a reasonable doubt, and is clearly erroneous, and no error was committed in refusing to give it.

Instruction Ho. 22 requested by defendant, reads as follows:

“If there is a reasonable doubt whether the defendant fired the fatal shot that inflicted the: mortal wound of which Charles Franklin died, but that it may have been fired by another person than the defendant, then the defendant should be acquitted.”

Instruction Ho. 30 requested by the defendant reads as follows:

“Although the jury may believe from the evidence that Charles Franklin was killed at the time and in the manner mentioned in the information, and that the shot that caused his death was fired by Charles Williams or by the defendant, still, if the jury are unable from the evidence to determine by which of said persons the shot, was fired, then ihe jury should consider the case precisely the same as 1 hough it had been proved that some other person than the. defendant, fired the fatal shot. The jury are instructed that if they find from a consideration of all the evidence that it pointed as clearly to Charles Williams as the person who fired the. fatal shot as it, does to the defendant, or if after a fair and full consideration of all the evidence the jury entertain a reasonable doubt as to whether the said Charles Williams, or the defendant, fired the shot that killed the deceased party, then the jury should acquit the defendant.”

It was not erra: to refuse either of these instructions, because they had been covered fully by other instructions given by the court. The different degrees of murder were fully explained to the jury in the instructions. The jury were also fully instructed that before they could find the defendant guilty, they must be satisfied beyond a. reasonable doubt from al. the evidence of his guilt, and the court in one of its instructions said:

“The law presumes the defendant innocent of the crime of which he is charged, or any other crime, until he is proven guilty. The burden of proof in every material allegation of the information, as herein charged, is upon the state, and it must establish the defendant’s guilt beyond every reasonable doubt. Mere probability of defendant’s guilt is not sufficient.”

Then again, in another instruction given by the court, the jury is -told that, unless they are satisfied beyond a reasonable doubt of the defendant’s guilt, they must acquit the defendant; and the court further instructed the jury as follows:

“You will pay no attention to the statements of counsel except in as far as they are borne out and supported by the evidence. If you have such a doubt as I have before explained to you, a reasonable doubt based upon the evidence or the lade of evidence, as to the guilt of the defendant of the crime charged, or as to whether under all the circumstances defendant acted in’self defense, or as to whether defendant fired the shot that killed deceased, then you should acquit him, but if you have an abiding conviction of the truth of 'he charge, then you should convict.”

It will be noticed that in this instruction the jury are told that if they have any reasonable doubt as to whether defendant fired the shot that killed the deceased, then they should acquit the defendant.

In State v. Carey, 15 Wash. 553 (46 Pac. 1051), this court uses the following language:

“It- is urged that the court committed error in refusing to instruct the jury as requested by the defendant upon the subject of the corpus delicti. Counsel argues that there was evidence tending to show that death was occasioned by a severe fall which the deceased had sustained on the night in question, and not by the means charged in the information, and that it was defendant’s right to have the jury instructed upon any theory of the case having evidence in its support. Conceding the fact and the law to1 be as contended for by counsel, we think that no- error was committed in refusing the particular instruction requested, because the subject matter was included in and covered by the general charge in which the jury were told that if it wás ‘possible to account for the death of the deceased upon any reasonable hypothesis other than that of guilt of the, defendant,’ then it became their duty to- so account for and find the defendant not guilty. Also1, that, ‘if the jury entertained any reasonable doubt upon any single fact or element necessary to constitute the offense,’ it was their duty to acquit him.”

In the case at bar the appellant argues that there was testimony tending to show that Charles Williams, or some other person than defendant, fired the shot that caused Franklin’s death, and that the instructions numbers 22 and 30 requested by defendant should have been given to support this theory; but this refusal was not error, under State v. Garey, supra, because the subject matter was included in and covered by the general charge given by the court, and also in other instructions requested by the appellant and given by the court as follows:

“That in cases and trials of this kind the jury must not weigh the testimony and decide upon a mere preponderance thereof, or the. number of witnesses, but it is your positive and solemn duty to consider the whole evidence, in the case with all the attending circumstances before them, and in so, doing, if they entertain a reasonable doubt arising from the, evidence, or want of evidence1, as to any material fact, as to the guilt of the defendant, either as to murder in the first or second degree, or manslaughter, it is their duty to acquit”

“The court instructs the jury, that in this case-, the law raises no. presumption against the defendant, hut every presumption of the law is in favor,of his innocence; and in order to convict him of the crime alleged in the information, or of any lesser crime included in it, every material fact necessary to constitute such crime, must be proved beyond a reasonable doubt, and if the jury entertain any reasonable doubt upon any single fact or element, necessary to constitute, the crime, it is. their duty to give the prisoner the benefit of such doubt and acquit him.”

“It is incumbent on the prosecution to prove every allegation of the information, as therein charged. Nothing is to be1 presumed or taken by implication against tlie de^ fendant”

“The, jury are instructed as a matter of law, that where a conviction is sought in a criminal cause, the state must, not only show' a preponderance of evidence that, the alleged facts and circumstances are true; but they must be such facts and circumstances as are absolutely incompatible upon every reasonable hypothesis with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than the guilt of the defendant, and in this case; if all the facts and circumstances relied on by the state for conviction can be reasonably accounted for upon any theory consistent with the innocence of the defendant, then, the_ jury should acquit him.”

The instructions given by the court fully cover the matters contained in requests 22 and 30, and for that reason there was no error in refusing them, it being a well established rule of law in this state, that it. will not be error to refuse requests for instructions that have been covered by, the- instructions given by the court. The instructions given by tlie court, taken as a whole, fairly stated the law to the jury on the facts disclosed by the testimony, and we cannot discover, after a critical examination of the entire charge, any substantial or prejudicial error.

The tenth error assigned is in overruling and denying appellant’s amended motion for a new trial. The motion is on the grounds of newly discovered evidence; error of law occurring at the trial and excepted to; and because the verdict is contrary to the law and the evidence. Lena Tudson and Alice MeO'abe make an affidavit, in which they state that at the time of the homicide they were working as employees in Grroe’s hotel at Eatonville; that the kitchen in the hotel is a room in the saloon building immediately adjoining the bar room, being divided from the bar room by a light and thin partition of cedar shakes, the joints of which are not closely matched; that this partition constitutes an indifferent obstruction to the transmission of sound between the bar room and the kitchen; and that a conversation carried on in the bar room in an ordinary conversational tone is clearly and distinctly audible in the kitchen; that affiants were familiar with the voice of appellant, which was habitually loud, and clear and positive; that they were in the kitchen when the appellant entered the bar room on September 2, 1901, just befor&the homicide; and remained there all the time; that they verily believed they heard and understood all that was then said by the appellant; and that if appellant said anything that was not heard by them, it must have been in a lower tone of voice; and much lower than appellant’s usual bone of voice. They further say:

“That during the time defendant was in said bar room as aforesaid, although his voice ivas clear and distinct, and clearly and distinctly heard by affiants, it was not noisy, aggressive, violent or boisterous, that he did not then or there indulge in any filthy, beastly or obscene expressions; that defendant did not then or there state or threaten that he would shoot, kill, or in any way harm or injure anyone, or that it was his purpose, desire, or intention'to shoot, kill, or in any way harm or injure any one. That the only improper statements or expressions at that time made or indulged in by the defendant were some profane expressions net noticeably differing from those used by a largd percentage of the visitors, and frequenters of said bar room. That whilst defendant was then in said bar room affiants did not hear any noise therein as of a pistol, revolver, or any similar object, or of any object at all, either falling to or being thrown to the floor, or being kicked or tossed about upon the floor of said bar room, and aver that if any such occurrence then and there took place they could and would have heard the same.

“Affiants further aver that, as far as they could and did understand from what iliey heard said, and stated by defendant in said bar room at the time in question, his conduct at that time was not unusual or exceptional and did not in any material respect substantially differ from that of the average frequenter of said place.

“Affiants further aver that by reason of their inexperience in litigation of any kind they were unaware of the fact that their testimony above outlined and set forth would or could be material or relevant in said case, and that they therefore did not at any time before the trial of said case advise or inform any one in any way connected with the defense thereof of their knowledge of said^facts dr what their testimony would be if they were called to testify in said case. And affiants further aver that they are not in any way related to defendant and, beyond a desire to see exact justice done in conformity with the exact facts ■of the ease, they are entirely disinterested in the premises, and that if called as witnesses in said case their evidence will be substantially as. hereinbefore set forth.”

The affidavit of S. E. McAnally is to the effect:

“That on or about September 3, 1901, affiant was retained by said defendant as his attorney in said case, and that he was the only attorney in any way retained or employed in said case on defendant’s behalf until on or about October Y, 1901, upon which latter date J. L. McMurray, Esq., was employed as an attorney therein on behalf of defendant to assist affiant in the trial thereof, and the preparation immediately incident to said trial, which trial began October 14, 1901.

“That the services of said MoMurray in said case consisted in examining the law pertaining to said case, the preparation of instructions to the jury to' he requested on behalf of defendant, and participation in the trial and argument of the case.

“That, excepting said McMurray, the affiant was the only attorney engaged by, or working in the interest of, defendant during the pendency of said case or its trial. That said Eatonville where said homicide occurred is thirty-four miles distant from the city of Tacoma, which is the county seat of said county, the place of residence of affiant and the place: where the trial of said action occurred. That at all times since the date of said homicide until said trial of defendant therefor, the means of travel between said city of Tacoma and Eatonville was either by private conveyance or by electric car to' Spanaway, ten miles distant from Tacoma, and thence to Eatonville by stage, a distance of twenty-four miles, or by Tacoma Eastern Railway to1 Waldron, and thence by stage eighteen miles. That between the date of said homicide and the trial, of said cause affiant went five different times from said .city of Tacoma to Eatonville on business connected with said cause and the trial thereof and for the purpose of ascertaining as fully, completely, and thoroughly as possible all the facts in said case, as well as all the collateral facts and circumstances having any relevancy thereto, and all the witnesses for the defense and the facts, circumstances, and conditions hearing on said cause and the defense therein, and within their knowledge. That on each of the five different occasions that affiant so- visited Eatonville in connection with said case as aforesaid he spent from two to five days at Eatonville, and in its vicinity, investigating, said cause and in interviewing and conversing with everyone who affiant supposed might have any knowledge or information regarding the facts of said cause, or collateral facts hearing thereon, for the purpose of acquainting himself as fully as possible with such facts as a preparation for properly and intelligently defending said action upon the tidal thereof.

“That affiant traveled more than 600 miles by various modes of travel, and as he verily believes interviewed more than 100 peisons, in preparing for the defense of said action. That defendant is a poor man, with very limited means, has been confined in prison ever since Said homicide, and has been unable to- render any substantial or material assistance in the matter of preparing his defense in said action. That during all the times between the date of said homicide and defendant’s trial therefor, affiant used his best efforts and exercised all possible diligence on bis p-art to- fully and properly prepiare for the defense of said action on the trial thereof. That it appeal’s- from the evidence introduced on the trial of said cause that the homicide in question occurred at or about two o’clock in the afternoon of September -2, 1901, immediately in front of a store then owned and conducted by one Van Eaton, at said town of Eatonville. That on said September 2, 1901, one Groe was running a hotel at said Eatonville, which hotel was about- 200 feet from said store, and in connection with, said hotel a bar room or saloon, which saloon was in a building immediately adjoining said hotel and constituting an annex thereto.

“That upon the trial of said action the following named ■witnesses, to-wit: E. R. White, T. O. Yan Eaton, Lydia Manchester, testified for the prosecution and against the defendant, substantially as follows, to-wit:

“That immediately before the said homicide the defendant entered said room or bar room and remained there- about ten minutes; that whilst then in said bar room defendant-indulged in extremely violent, abusive, obscene, and profane language, and spoke during all the time he was then in said bar room in a very loud tone- of voice, and that- during all the time he was- then and there in said bar room that his conduct was noisy, offensive, rough, and boisterous. That he dropped or threw upon the floor a revolver that he had in a belt- strapped around bis waist; that upon said revolver striking the floor he kicked said revolver around the floor of the bar room, and then declared in a very loud and threatening voice that he would kill the first man that crossed his path, or stood up against him, or words to that effect. Affiant further deposes and says that the prosecution, upon the argument and submission of said case to 'the jury, laid great stress upon and attached great importance to said testimony, and especially to> that certain portion thereof relating to said alleged threat, as proving that the; homicide in question was committed by defendant pursuant to1 a homicidal intent, existing in defendant’s mind at the time said witnesses testified that he made said threat; and affiant further says he believes said testimony, and the argument of counsel for the prosecution based thereon, exercised a strong and dominating influence on the minds of the jury in rendering the verdict of murder" in the first degree in said case.

“Affiant further deposes and says that the kitchen of said hotel is immediately in the rear of and adjoining said bar room, and separated therefrom only by a very light partition, made of the material known as cedar shakes and which consists of thin strips of cedar timber split from the log by hand; that, like all cedar shakes or strips of which this partition are made are not, exactly true either" on the edges or sides, but vary in and out, from, a true line more or less according to the grain of the log from which they are split, and that the joints between said strips are therefore loose and open. That said strips or shakes are thin and the cedar timber out of which they are made is very light and porous, and that, by reason of said strips being so thin and imperfect and said cedar tree so light and porous as aforesaid, said partition constitutes but a, very slight and indifferent obstruction to the transmission of sound from said bar room to said kitchen, and that said obstruction is so slight that a conversation carried on in said bar room in an ordinary conversational tone can be distinctly heard and understood in said kitchen. . . . Affiant, further deposes and says that since the close of the tidal of said action and the return of the. verdict, therein, and for the first time that he ever heard or learned the same, he has learned that at and during all the time immediately preceding the homicide here in question tie defendant was in said bar room as hereinbefore referred to, and during which time said witnesses hereinbefore named testified that said defendant indulged in said loud, obscene*, and profane language, and noisy and boisterous conduct, and made said threat, there were in said kitchen adjoining' said bar room two> persons, to-wit: One Lena Tudsen, aged 19 years, and one Alice McCabe, aged 1Y years, who were then employed in said hotel, and who are now living in the* city of Tacoma, Pierce county, Washington.

“Affiant further deposes and says that, notwithstanding his best and most earnest efforts and diligence as aforesaid to secure all important available evidence on defendant’s behalf for use on said trial of said action, ha never before said trial knew or learned from any source or any person that either said Len a Tudsen or Alice McCabe were present at the time of said bar room conversation, or had any knowledge of said case or any facts bearing thereon dr in any way relating thereto or connected therewith, and he further avers that to* the best of his knowledge, information, and belief no friend of the defendant or any person' interested in his defense had any knowledge or information regarding the testimony that, if known, could and would be given on the trial of said case by said Lena Tudsen and Alice McCabe. That as affiant is now informed said Lena Tudsen and Alice McCabe remained at Eaton-ville about three weeks after the time of said homicide, but were during all of said time employed in said hotel, and that said witness Groe, his wife, and bartender, the witness White, all testified adversely to defendant on the trial of said case, and were during the pendency of said trial as well as throughout the same unfriendly in their attitude towards defendant, and, if they or either of them knew how said Lena Tudsen and Alice McCabe would testify if witnesses in said case, they failed and neglected to disclose the same either to affiant or to any friend of defendant, although they well knew during all'of said time that affiant was defendant’s attorney in said case.”

The witness, White, whose testimony we have quoted in the statement, was corroborated by Miss Manchester, a school teacher, who was near the door of the hotel, and Mr. Van Eaton, the post master, who was near the same place, as to the loud, boisterous, and vile talk and threatening language used by appellant in the bar room just before the homicdde. It may be conceded that, under the circumstances, the evidence of Lena Tudsen and Alice McOabe was material for the defense, but that is not sufficient to warrant the granting of a new trial. The law further requires that the evidence could not with reasonable diligence have been discovered and produced at the trial.

Mr. Vance testified that he believed White knew his (Vance’s) wife was in thehotel, because White went back and forth into the kitchen, and he knew the situation of the kitchen. Mrs. Vance testified that she loent to Mrs. Groe at the hotel, and ivas there when she heard the shots. Mrs. Kendall, a witness for the appellant, and a sister of Mrs. Vance, was at Groe’s hotel at the time the homicide occurred. Mrs. Groe on rebuttal testified that she heard conversation in the bar room at about the time Vance was there, but on objections of the appellant she was not allowed to; state its character, and that it was loud. The nature of the partition between the bar room and kitchen and the surroundings of the hotel were apparent to Mr. McAnally when he went to- Eatonville five times to examine into the evidence and ascertain the facts. On each occasion he spent from two to five days at Eatonville investigating. lie interviewed over one hundred persons, but never interviewed the servants about the hotel, or the witnesses who were there, as to- the other persons about the hotel; at least, this is not shown by his affidavit. The two girls were there employed in the hotel for three weeks after the homicide. There was nothing to prevent the •appellant’s attorney from, interviewing them. The law requires the utmost diligence to be used by the defendant and his counsel, and by those connected with and interested in the defense of the case. We think that the provision of the statute with reference to- the exercise of due diligence has not been complied with by the appellant or his counsel in this case. State v. Power, 24 Wash. 34 (63 Pac. 1112). In that case we said:

“It is next objected that the court erred in refusing to grant the appellant’s motion for a new trial. This motion was based on the ground of newly discovered evidence. This consists of the statement, shown by the affidavit of a nurse, to the effect that the deceased immediately preceding her death, had made declarations to the nurse tending to exonerate the appellant. It appears from the record that the nurse was employed to- wait upon the deceased by the defendant himself; and, while he states- in his affidavit that he had noi knowledge at the time of the trial that she would testify that the deceased had made these declarations, it would be too- much to- say that he could not, by reasonable diligence, have discovered that fact. He was at all times-, prior to- his conviction, at liberty on bail, and had every opportunity to- prepare for his defense. He knew the whereabouts of the nurse, yet it appears that she was- never questioned as to her knowledge concerning the matters that would be subject to inquiry at the trial. This was not the exercise o-f that reasonable diligence which the Code requires as- a prerequisite to the granting of a new trial on this- ground.”

This statement of law is peculiarly applicable to the facts in the ease at bar. While the appellant was confined in jail, he had the assistance of two lawyers as his counsel, and his wife was aiding and assisting him in the preparation of his defense, and it is too much to- say that this evidence could not have been discovered and produced at the trial by the exercise of that diligence which the law requires. The appellant’s wife must have known who was in the kitchen' of Groe’s hotel on the day of the tragedy. Mrs. Groe certainly knew, and if the appellant’s counsel had used the diligence that we have referred to in the preparation of their case for trial, and had deemed the testimony of these witnesses material, and important for the appellant’s defense, such evidence could have been produced before the jury in this case. The matter of granting a new trial is within the discretion of the trial court, and the presumption is that the trial court, in denying a new tidal on the ground of newly discovered evidence, properly exercised his discretion. We think this evidence could have been discovered, if the attorney of the appellant had investigated and interviewed the persons who were in and about Groe’s hotel -on the day of the homicide. That prudence and ordinary experience would suggest the interviewing of such persons for the facts connected with the presence of the appellant at the hotel. There is no showing that this was done. Reasonable diligence has not been shown to discover the evidence of the two girls.

The eleventh error assigned is in overruling defendant’s motion in arrest of judgment, and the twelfth is in rendering judgment on the verdict because contrary to law and against the evidence. The threats made by the defendant in the bar room, as testified to by Mr. White, were admitted in evidence without objection. They were properly admitted, to show general malice, and a purpose to- kill or injure some one. State v. Larkins (Idaho), 47 Pac. 945; Benedict v. State, 14 Wis. 423; Brooks v. Commonwealth, 100 Ky. 194 (37 S. W. 1043); State v. Hymer, 15 Nev. 49. The appellant had murder in his heart. Prom the conduct of the appellant, the jury might well believe that the remark of the deceased to the appellant when he came up to the porch, “I thought, you were sick, Alex.,” turned the anger of the appellant to' the deceased, and that the appellant then made up his mind to provoke, a quarrel with the deceased, irrespective of consequences. He immediately declares that he can lick any “g— d— man in Eatonville.” He can lick any “s— of a b— who stood in with Herman Kendall.55 “Charlie, [meaning the deceased] g— d — ■ you, I can lick you:55 What happens? Mr. Eranklin smiled, and said, “I am not- looking for a fight, hut if you will lay your revolvers down I will try you a round.” Does he lay off his. revolvers where they cannot, be reached? Ho. He takes particular pains to ' lay off his revolvers on a chair, between which chair and the deceased he took great pains to keep himself. Having a right to. believe that a blow would be returned if made, after laying off the two revolvers, he approaches Mr. Eranklin, and makes two strikes at him. Mr. Eranklin rises, and attempts to push him back. He goes, back until opposite the chair where the two> revolvers are lying. He immediately grabs 1liem, and commences shooting, as the jury might- well beli eve1, with deliberate and premeditated malice. The result of that shooting is the killing of an old and defenseless man, without any cause or provocation.

The ends of justice do not require us to disturb the findings of the jury in this case. The judgment of the court, below on the verdict ought, to be, and the same is, affirmed.

Reavis, O'. J., and Mount, Anders, Dunbar, and Hadley, JJ., concur.