SCOTT, J. This is the second appeal in this cause. See 9 Wash. 142, 37 Pac. 287, and 38 Pac. 80, where it was reversed upon an appeal by the plaintiff, and was sent back for a new trial. Judgment was rendered for the plaintiff, and appealed from by the defendant.

The first point urged is that the defendant had no authority to issue the note in question, and it is claimed that the former Judgment of this court does not conclude the defendant from raising the point upon this appeal. But this question is immaterial, for the complaint stated a cause of action upon the original contract for the purchase of the engine,-the action being to recover the balance due, prior payments having been made thereon,-and we held that the complaint was sufficient.

It is next urged that the claim had never been allowed by the council, but we regard this as untenable, since the entire claim had been previously before the council. Part of it had been paid, and the note in question issued for the balance; and the issuance of this note was a sufficient allowance of the claim, whether valid as a note, or not, conceding that its formal presentment had not been waived. Affirmed.

HOYT, C. J., and DUNBAR, ANDERS, and GORDON, JJ., concur.

(11 Wash. 210)

DEWEY et al. v. SOUTH SIDE LAND CO. et al.

(Supreme Court of Washington. Feb. 15, 1895.)

NOTICE OF APPEAL-RECord.

1. Where notice of appeal required by Laws 1893, p. 122, to be served on all parties in the action in case the notice is not given at the time judgment is rendered, was not served by a judgment defendant on his codefendants, the appeal will be dismissed, though all the defendants were represented by the same attor

ney.

2. A paper filed after the record was sent up, purporting to be a supplementary record, if not certified as such, cannot be considered as part of the record.

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by O. B. Dewey and another against the South Side Land Company, the Westminster Presbyterian Church, and others, to foreclose a mechanic's lien. Judgment for plaintiff Dewey, and defendant the Westminster Presbyterian Church appeals. Appeal dismissed.

G. C. Britton and C. P. Bennett, for appellant. Law & Crandall, for respondent.

ANDERS, J. This action was instituted by the respondent and one Fenton to establish and foreclose alleged mechanics' liens on a church building. There were seven different parties defendant, all of whom, except the South Side Land Company, appear

ed and defended in the court below. Fenton's case was not prosecuted, as his claim had been settled or assigned prior to the time of the trial. From a judgment in favor of the respondent, the Westminster Presbyterian Church alone appealed. None of the other defendants joined in the appeal, nor does it appear that the notice of appeal was ever served on any of them. For this reason the respondent moves to dismiss this appeal.

The notice of appeal was not given at the time the judgment was rendered, and in such cases the law under which the appeal was taken provides that the notice of appeal shall be served upon all parties who have appeared in the action or proceeding. Laws 1893, p. 122. This provision of the present statute in respect to the serving of notices of appeal is substantially the same as that contained in former statutes, under which this court has many times held that a failure to give the required notice entitles the respondent to a dismissal of the appeal upon motion. Bellingham Bay Nat. Bank v. Central Hotel Co., 4 Wash. 642, 30 Pac. 671, and cases cited; Bank v. Bokien, 5 Wash. 777, 32 Pac. 744.

The appellant, however, contends that, inasmuch as the same attorneys appeared for all of the defendants, it was not necessary to serve the notice upon them, as they already possessed all the information which the service of notice would have imparted. But we held in Bank v. Bokien, supra, that the fact that the attorney for appellant was also the attorney for one of the other defendants was no excuse for not serving such a defendant with notice of the appeal; and we perceive no reason for overruling the decision there made.

It is also claimed by appellant that service of the notice of appeal in this case was waived by all of the defendants not served; and, in order to show such waiver, appellant caused to be filed in this court, long after the record had been sent up, what counsel call a "supplementary record." But as this paper is not certified as required by law, or at all, we cannot consider it as a part of the record on this appeal.

The motion to dismiss must be granted.

Appeal from superior court, King county; T. J. Humes, Judge.

William Wilcox was convicted of manslaughter, and appeals. Reversed.

Frank B. Ingersoll and Melvin G. Winstock, for appellant. John F. Miller and A. G. McBride, for the State.

DUNBAR, J. In this case the defendant was informed against for murder in the first degree. The case proceeded to trial, and the defendant was convicted of manslaughter. Motion for a new trial and in arrest of judg ment was duly made and overruled by the court, and defendant sentenced to 20 years' imprisonment in the state penitentiary. From such judgment this appeal is prosecuted.

The first error assigned by the appellant was the ruling of the court in permitting a Juror, Charles Kellogg, to serve, over the objection of the defendant, who challenged him for cause, on the ground of actual bias. The testimony of the juror on his voir dire was substantially as follows: "Question. Have you formed or expressed any opinion touching the guilt or innocence of the defendant? Answer. I think I have. Q. You think you have? A. Well, I know I have. Q. Have you talked with any one who professed to know the facts of this case? A. Yes, sir. Q. How long since? A. I think it has been about a month ago. Q. Did the parties to whom you talked profess to know the facts of the case? A. I believe not. Q. Did you ever make any personal investigation of the matter? A. No, sir; only through the papers. Q. That is all the investigation you have made, is it? A. Well, I could not exactly say it is all the investigation I made, because there is a party I talked with quite frequently, an acquaintance of mine, that I believe was subpoenaed as a witness in the lower court. Q. Did that party with whom you talked profess to know the facts? Did he give the facts to you? A. No, sir; only what he knew about it. Q. Well, from the newspaper articles that you read, did you form in your mind a determined, fixed, and absolute opinion in this matter? A. No, sir. Q. Mr. Kellogg, could you lay aside what impressions or opinions you have formed, and try this case solely upon the eviCence, under the instructions of the court? A. I think I could, without doubt. Q. Could you try it with the same degree of impartiality that you could if you had not read these articles in the newspapers,-lay aside that for the time being, and try the case upon its merits? A. I don't know whether I could or not. The conversation that I have had and the impressions that I have formed is to a certain extent I don't know what the testimony would amount to. Would not like to say exactly what I could do. Q. What I am trying to get at is the condition your mind is in now regarding the material facts of this case,— whether or not you could, if you were selected here as a juror, try this case, lay aside what impressions you have formed, and try this V.39P.no.3-24

case solely upon the evidence, under the instructions of the court. A. I believe I could." Witness testified that he did not know either the defendant or the person murdered, and his further testimony in chief was a repetition of what we have above cited. The crossexamination was substantially as follows: "Q. Mr. Kellogg, you said, in response to a question put by Mr. Miller, that a witness did detail to you such facts as he (the witness) knew? A. He did; yes, sir. Q. What was his name? A. His name was George Griffin. Q. He is a friend of yours, is he? A. Yes, sir. Q. You talked with him about the case during the preliminary hearing here? A. I don't remember exactly whether it was at the preliminary hearing or a little before. I know that I saw him afterwards, and I know that I talked with him the time he was held here before the preliminary hearing. Q. And he told you at that time the facts relating to this case, so far as he knew them? A. I suppose he did; yes, sir. I don't know that he knew or not. Q. Well, he told you what he was subpoenaed to testify to didn't. he? A. Yes, sir. Q. Then you read about the matter in the newspapers? A. Yes, sir. Q. Now, have you formed the opinion that you gave from the newspapers or from what Mr. Griffin told you? A. I have formed it partially through what I have heard from him, and through the newspapers, and in conversation with other people, one way and another. Q. Now, Mr. Kellogg, you said you had an opinion now about the merits of this case? Yes, sir. Q. And it would take evidence to remove or change that opinion? A. Yes, sir. Q. Then you feel that if you went into the trial of this case, that, unless there were evidence to remove your opinion that you now have, you would have to act upon the opinion that you have? A. I surely would. Q. Then, if it would take evidence to remove that opinion, you could not be an impartial juror, could you? A. I think I could be guided solely by evidence. I didn't know that the opinion which I already have would have any weight. I suppose it would take contrary evidence to change my opinion. Q. Well, then, if it would take evidence to change your opinion, you would start in the case with your opinion already formed? A. Yes; so far as I know the circumstances of the case, I have formed an opinion. Q. When counsel asked you if you had a fixed and abiding opinion in the case, and you said, 'No,' you meant by that, did you, that it is not such an opinion but what could be changed by evidence? That's exactly what I meant. Q. Mr. Kellogg, suppose you were the defendant here in the place of Mr. Wilcox, and was accused of the crime of murder in the first degree, would you be willing to go to trial with a jury of twelve jurors with their mind in the same condition that yours is now? A. I don't believe I would. Q. You don't think you would? A. No, sir." Here the defense challenged the juror for cause, and the court took him in

A.

A.

hand, and finally elicited from him the statement that he could try and determine the cause with the same degree of impartiality as he could if he had never heard anything about it, and that he would be able to disregard the opinion that he already entertained. It seems to us that this case falls squarely within the rule laid down by this court in State v. Murphy, 9 Wash. 204, 37 Pac. 420. There, after an examination of the authorities, and a somewhat extended presentation of the reason for the conclusion reached by the court, it was decided that the court erred in admitting to the jury box a juror who answered substantially as the juror in this case has answered.

Reading reports of the commission of crime in newspapers cannot, of course, in this day of almost universal reading, be regarded as a ground of challenge to a juror, or even casual talk that one may hear on the street or elsewhere concerning the commission of a crime; for people who read or mingle with their fellow men during the excitement that pervades a community when a crime has been committed are almost sure to read newspaper accounts of the commission of the crime, and to hear people talking of the circumstances of its commission. If any juror should swear that if the reports which he had heard were true, whether the reports came from newspapers or from individuals, he believed the defendant guilty or innocent, or that he had made up his mind as to his guilt or innocence, that would be one proposition; but where he answers, in substance, that he has read these reports, and that he has heard this talk, and that he does believe them to be true or untrue, as the case may be, that is altogether another proposition; and that is what this witness substantially testified to, either that he believed them to be true or untrue. If, as he said, he had talked with a friend of his who had been subpoenaed as a witness in the primary examination, and that friend related to him the facts concerning the crime, and from such relation he formed an opinion as to the guilt or innocence of the defendant, and if it is true, as he said, that, if he went into the trial of this case, unless there were evidence to remove that opinion he would have to act upon the opinion which he already entertained, then, certainly, he was not an impartial juror; and if the opinion was that the defendant was guilty, and the testimony of the state and the defense balanced, his verdict, according to his statement, would have to be that of guilty. In other words, the defendant would be deprived of the right which he has to be proven guilty beyond a reasonable doubt. He would not even have the benefit of the rule in a civil action of a preponderance of the testimony, but he would have the burden thrust upon him of proving himself innocent. And that is the logical result of that condition of mind in a juror which is exhibited by the expression

that it would take evidence to remove the opinion which he already entertains.

The court in this case, as usual in such cases, finally elicited the statement from the juror that he thought he could lay this opinion aside, and try the case upon the evidence produced at the trial; but we do not think that this question of capability should be submitted to a juror who has already stated that he has an opinion, and such an opinion as it would take evidence to remove. He may be honest enough in making the statement that he can lay such opinion aside, or his pride may prevent him from admitting that he cannot; but, when once he has shown the condition of mind that this juror evinced by his answers, his judgment, so far as trying the case upon the testimony produced at the trial is concerned, is not to be relied upon, for the human mind is so constituted that it is not conscious of its own weakness. If it were, its frailties would be corrected, or, more logically, would not exist. In fact, this juror's statements are contradictory, and the final declaration that he could so try the case without reference to his opinion was not only a flat contradiction of a former assertion, but was simply the statement of a conclusion, and not of a fact; while the assertion by him that he had formed an opinion which it would take some evidence to remove was the statement of a fact, and from such facts the court is better able to deduce conclusions than the juror himself. If reading reports of the commission of crime in newspapers produces the impression on minds of jurors that this juror declared it did on his, and such jurors are pronounced by the courts to be competent, then the practical result will be that men will be tried and convicted by the newspapers, instead of by the testimony which is adduced in court, under the rules of law prescribed for such trials. If a juror has heard a statement concerning the facts in a case from a friend in whom he has confidence, and that statement made such an impression on bis mind that it created an opinion as to the guilt or innocence of the defendant, it is very doubtful if he would be able to entirely separate that information from the testimony which he may listen to during the progress of the trial; and the effect of such testimony is liable to be colored by what he knows, or thinks he knows, about the case from the prior information which he has obtained. The result is that just to the extent that he is influenced by this outside information are the defendant's rights determined by the testimony of a witness whom he is not able to meet face to face or to examine.

Courts always are and should be loath to disturb the verdicts of juries for errors of this kind, but it is the constitutional right of every citizen to be tried by an impartial jury, and, when that right is denied, he must have redress. There was no occasion in this

case for imposing this juror upon the defendant. He was the last juror called. The defendant had exhausted all his peremptory challenges. Eleven other jurors had been impaneled who disclaimed any opinion as to the guilt or innocence of this defendant, and, no doubt, hundreds of men could have been readily obtained who would have been competent jurors beyond any question. It is not necessary at all to go to the other extreme, and hold that a man must either possess so little intelligence or energy or learning that he has not heard of the commission of the particular crime, or the detailing of the circumstances through the ordinary avenues for the dissemination of alleged information of this kind. But this witness, we think, showed either that he did not have sufficient intelligence to understand the force of his own language, or else that he actually did have such a fixed opinion in the case as ought to preclude him from acting as a juror.

This defendant was charged with an atrocious crime, committed in a brutal, heartless, fiendish manner, and the community doubtless was justly excited, incensed, and outraged; but these features of the case furnish the strongest reason for according him a trial by an impartial and unprejudiced jury, totally uninfluenced by public sentiment, a jury every member of which could without question pass upon his guilt or innocence solely and exclusively from the testimony presented at the trial.

Other errors are alleged by the appellant, but, as they are not liable to occur upon a new trial, we will not notice them. For the error above discussed, the cause will be reversed, with instructions to grant a new trial.

ANDERS and GORDON, JJ., concur.

HOYT, C. J. (dissenting). I am unable to find anything in the record which satisfies me that the trial court abused its discretion in denying the challenge for cause interposed by the defendant to the juror Kellogg. In my opinion, the examination of the juror disclosed an entirely different state of mind from that disclosed by the examination in the case of State v. Murphy (Wash.) 37 Pac. 420, referred to in the foregoing opinion. In that case facts were made to appear which might well induce the belief that the juror was in such a state of mind as would disqualify him. His answers to some of the questions showed such a want of frankness as to warrant the belief that he did not fully realize the importance of the examination. It was therefore competent for this court to find that the juror was in fact disqualified, and that the court committed error in coming to a contrary conclusion. But, in my opinion, the facts of that case none too well authorized an interference with the discretion vested by law in the trial court, and the doctrine therein announced

should not be extended. The facts disclosed by the examination in the case at bar satisfy me that the juror was a fair-minded man; that he appreciated the object of the examination, and with the utmost frankness laid bare his mind, that the court might form an intelligent conclusion as to whether or not it was in such a state as to disqualify him from sitting as a juror. The distinction sought to be drawn by the cases relied upon by the appellant between an impression and an opinion is to my mind without force. I can see no distinction between them except one of degree. If one has an impression as to a fact, he has an opinion in regard thereto; and, if it requires evidence to change an opinion, it will also require evidence to do away with an impression. It seems to me that the majority of the court, following other courts who have passed upon like questions, have made a mistake in assuming that, because a juror has an impression or an opinion, he will necessarily act upon it, unless it is removed by evidence. In my opinion, a fair-minded man will do no such thing. He may have an opinion founded upon information not obtained during the progress of the trial, and yet be able to comply with his oath as a juror, and decide the case solely upon the evidence introduced at such trial. The rule announced, if carried to its logical conclusion, will prevent any person sitting as a juror who has heard anything of the purported facts relating to the issue to be determined upon the trial. If he has heard anything of the kind, his mind must necessarily have received some impression therefrom, and, if it has, such impression will remain until something is brought to his attention which will remove it; and, if it is to be assumed that the impression will influence his decision, it will, in every such case, require evidence to put his mind in such a state that he is qualified to sit as a juror. If a juror has an impression at all, he cannot honestly otherwise answer the question as to whether or not it will require evidence to remove it than to say that it will. But it does not follow that such impression must be removed to enable him to decide the case upon the evidence introduced at the trial. If he is an honest man, he will try to disregard any such impression or opinion, and decide the case upon the evidence so introduced; and, if our statute means anything, it means that it is the duty of the trial court thereunder to determine whether or not he can do his duty in that regard. If it is assumed that the impression or opinion must be removed by evidence, then one having an opinion of any kind, or even an impression, is disqualified. Such a holding entirely negatives our statute, which provides that the fact that the juror has an opinion shall not disqualify him if the trial court finds that he can fairly try the case, Under such statute, the trial court finds a

fact upon evidence introduced before it, and such finding should not be set aside by the appellate court, unless it is clearly wrong. Such is the general rule as to the force to be given to findings of fact by the trial court; and where, as in this case, the fact to be determined is as to the state of mind of a person examined before such court, it should be applied to the fullest extent. In such a case the bearing and appearance of the person examined furnish more information than what he says. In my opinion, the judgment and sentence should be affirmed.

(11 Wash. 128)

ACKLEY v. BURCHARD. (Supreme Court of Washington.

1895.)

Feb. 8,

DIVORCE-CUSTODY OF CHILDREN · EVIDENCE AS TO STIPULATION.

In habeas corpus proceedings by a divorced wife to get possession of her children, it appeared that, after the decree of divorce, which gave her the custody of the children, a stipulation, afterwards lost, was entered into in regard to their custody, which, the husband claimed, provided that he should have the sole custody of them, but which, the wife claimed, gave them to him only temporarily. The testimony of the husband's attorneys, who drew up the stipulation, was so contradictory as to be worthless. The testimony of the person who married the wife after her divorce, which supported the wife's claim, was contradicted by two letters written to another daughter of the husband, in regard to the children, after the time the wife claimed the husband was to surrender them. Held, that a finding that the stipulation gave the sole custody of the children to the husband was proper.

Appeal from superior court, Kittitas county; Carroll B. Graves, Judge.

In the matter of the application for a writ of habeas corpus by Laura J. Ackley against Clinton A. Burchard. From a judgment denying the writ, petitioner appeals. Affirmed.

Mires & Warner and Herren & Hubbell, for appellant. Reynolds & Stewart, for respondent.

DUNBAR, J. On May 18, 1891, the petitioner and Clinton A. Burchard, the respondent, were divorced by decree of the superior court, and in said decree the care and custody of the minor children, Mary Ella Burchard and Mattie Eva Burchard, who are the subjects of this petition, were awarded to appellant, petitioner herein. The appellant afterwards married one H. C. Ackley, and sues out this writ in the name of Laura J. Ackley. On May 4, 1893, the respondent, who lives in Lewis county, went to Ellensburgh, and employed Pruyn & Ready, a firm of lawyers, to obtain an order nunc pro tunc in the case of Burchard v. Burchard,the case above referred to,-modifying the original decree therein to the extent of giving the custody and control of said children to respondent, Burchard. It seems that

Pruyn & Ready had been appellant's attorneys in the divorce proceedings, and expressed some doubts as to the propriety of an employment to attempt to disturb the decree in that case. They, however, resolved the doubt in favor of the employment, and told the respondent that in some recent case to which appellant was a party such damaging testimony had been elicited against her that they were satisfied a modification of the decree could be obtained. In fact, they. thought that appellant, rather than have the testimony reproduced, would consent to relinquish the possession of the children. At all events, they received a fee of $40 from respondent, and Ready went to see the appellant, and brought her down to the office of Pruyn & Ready for a conference. The 1esult of said conference was that an agreement in writing was executed, whereby the custody of the minor children was to be given to respondent. The respondent then took charge of the children, and took them to his home in Lewis county, where they remained in his undisputed possession until about a year afterwards, when petitioner clandestinely took them from the possession of the respondent. An arrest for kidnapping followed. The respondent again obtained possession of the children, and this writ was sued out to obtain their possession. Respondent, answering, set up the agreement, which it was alleged had been lost or misplaced through the negligence or carelessness of Attorneys Pruyn & Ready, or through their collusion with the appellant; and the court, upon the trial, refused to make an order modifying the decree, but, finding that the custody of the children was rightfully in the father, refused the writ; and from this order of the court this appeal is taken.

There is some conflict in the testimony in this case, the respondent swearing positively that the agreement executed was to the effect that he was to have the permanent care and custody of the children, while the appellant and her husband swear that he was to have the care and custody of the children until the next July. While the testimony of Pruyn & Ready on their direct examination rather tends to strengthen the contention of the appellant, their crossexamination shows that it must have been their understanding of the contract which was executed that the permanent custody of the children was given to the respondent. Ready swears that he does not think that they would have charged the respondent $40 simply for bringing about the conference which was brought about through his instrumentality. Pruyn's testimony is to the effect that he remembers of some kind of a stipulation made and entered into between the appellant and the respondent, and that he does not know where the paper is at the present time, although he has made due and diligent search for the same; that to the best of his recollection the contents were that the decree