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p. 122.

SCOTT, J. This is the second appeal in ed and defended in the court below. Fenthis cause. See 9 Wash. 142, 37 Pac. 287, ton's case was not prosecuted, as his claim and 38 Pac. 80, where it was reversed upon had been settled or assigned prior to the an appeal by the plaintiff, and was sent time of the trial. From a judgment in faback for a new trial. Judgment was ren- vor of the respondent, the Westminster Presdered for the plaintiff, and appealed from byterian Church alone appealed. None of by the defendant.

the other defendants joined in the appeal, The first point urged is that the defendant nor does it appear that the notice of appeal had no authority to issue the note in ques. was ever served on any of them. For this tion, and it is claimed that the former reason the respondent moves to dismiss this Judgment of this court does not conclude the appeal. defendant from raising the point upon this The notice of appeal was not given at the appeal. But this question is immaterial, time the judgment was rendered, and in such for the complaint stated a cause of action cases the law under which the appeal was upon the original contract for the purchase taken provides that the notice of appeal shall of the engine,-the action being to recover be served upon all parties who have appearthe balance due, prior payments having ed in the action or proceeding. Laws 1893, been made thereon,-and we held that the

This provision of the present statcomplaint was sufficient.

ute in respect to the serving of notices of It is next urged that the claim had never appeal is substantially the same as that conbeen allowed by the council, but we regard tained in former statutes, under which this this as untenable, since the entire claim court has many times held that a failure to had been previously before the council. give the required notice entitles the respondPart of it had been paid, and the note in ent to a dismissal of the appeal upon moquestion issued for the balance; and the is- tion. Bellingham Bay Nat. Bank v. Central suance of this note was a sufficient allow- Hotel Co., 4 Wash, 612, 30 Pac. 671, and ance of the claim, whether valid as a note, cases cited; Bank v. Bokien, 5 Wash. 777, or not, conceding that its formal present- 32 Pac. 744. ment had not been waived. Affirmed.

The appellant, however, contends that, in

asmuch as the same attorneys appeared for HOYT, C. J., and DUNBAR, ANDERS, all of the defendants, it was not necessary and GORDON, JJ., concur.

to serve the notice upon them, as they already possessed all the information which the serv

ice of notice would have imparted. But we (11 Wash. 210)

held in Bank v. Bokien, supra, that the fact DEWEY et al. v. SOUTH SIDE LAND CO. that the attorney for appellant was also the et al.

attorney for one of the other defendants was (Supreme Court of Washington. Feb. 15, no excuse for not serving such a defendant 1895.)

with notice of the appeal; and we perceive NOTICE OF APPEAL-RECORD.

no reason for overruling the decision there 1. Where notice of appeal required by made. Laws 1893, p. 122, to be served on all parties It is also claimed by appellant that service in the action in case the notice is not given at the time judgment is rendered, was not served

of the notice of appeal in this case was wair. by a judgment defendant on his codefendants, ed by all of the defendants not served; and, the appeal will be dismissed, though all the de- in order to show such waiver, appellant causfendants were represented by the same attor

ed to be filed in this court, long after the recney. 2. A paper filed after the record was sent

ord had been sent up, wbat counsel call a up, purporting to be a supplementary record, if "supplementary record.” But as this paper not certified as such, cannot be considered as is not certified as required by law, or at all, part of the record.

we cannot consider it as a part of the record Appeal from superior court, Pierce county; on this appeal. W. H. Pritchard, Judge.

The motion to dismiss must be granted. Action by 0. B. Dewey and another against the South Side Land Company, the West- HOYT, C. J., and DUNBAR and SCOTT, minster Presbyterian Church, and others, to JJ., concur. foreclose a mechanic's lien. Judgment for plaintiff Dewey, and defendant the Westminster Presbyterian Church appeals. Ap

(11 Wash. 215) peal dismissed.

STATE v. WILCOX. G. C. Britton and C. P. Bennett, for ap

(Supreme Court of Washington. Feb. 18,

1895.) pellant. Law & Crandall, for respondent.

JUROR-CHALLENGE FOR CAUSE-OPINION.

A challenge for cause to a juror who tesANDERS, J. This action was instituted

tified on his voir dire that he had formed an by the respondent and one Fenton to estab- opinion as to defendant's guilt which it would lish and foreclose alleged mechanics' liens require evidence to remove should have been on a church building. There were seven dif

allowed, though he also testifies that he thought

he could lay the opinion aside, and try the case ferent parties defendant, all of whom, ex

on the evidence produced. Hoyt, C. J., discept the South Side Land Company, appear- senting.

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. Win. stock, 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 judgment 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.

Tbe 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 cour.. 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. We'i, frora 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? Å. I think I could, without doubt. Q. Could you try it with the same degree of inpartiality that you could if you had not read these articles in the newspapers,-layaside 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 bere as a juror, try this case, lay aside what impressions you bave formed, and try this

7.39p.20.3-24

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 Gritfin. 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. be? 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. Gritfin 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 opin. ion now about the merits of this case? A. 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 evi. dence 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? A. 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 be lieve 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

hand, and finally elicited from him the state- that it would take evidence to remove the ment that he could try and determine the opinion which he already entertains. cause with the same degree of impartiality The court in this case, as usual in such as he could if he had never heard anything cases, finally elicited the statement from the about it, and that he would be able to dis- juror that he thought he could lay this opinregard the opinion that he already entertain- ion aside, and try the case upon the evidence ed. It seems to us that this case falls square- produced at the trial; but we do not think ly within the rule laid down by this court in that this question of capability should be State v. Murphy, 9 Wash. 204, 37 Pac. 420. submitted to a juror who has already stated There, after an examination of the author- that he has an opinion, and such an opinion ities, and a somewhat extended presentation as it would take evidence to remove. He of the reason for the conclusion reached by may be honest enough in making the statethe court, it was decided that the court erred ment that he can lay such opinion aside, or in admitting to the jury box a juror who an- his pride may prevent him from admitting swered substantially as the juror in this case that he cannot; but, when once he has has answered.

shown the condition of mind that this juReading reports of the commission of crime ror evinced by his answers, his judgment, in newspapers cannot, of course, in this day so far as trying the case upon the testimony of almost universal reading, be regarded as produced at the trial is concerned, is not to a ground of challenge to a juror, or even be relied upon, for the human mind is so casual talk that one may hear on the street constituted that it is not conscious of its own or elsewhere concerning the commission of a weakness. If it were, its frailties would be crime; for people who read or mingle with corrected, or, more logically, would not extheir fellow men during the excitement that ist. In fact, this juror's stateinents are conpervades a community when a crime has tradictory, and the final declaration that he been committed are almost sure to read could so try the case without reference to newspaper accounts of the commission of his opinion was not only a flat contradiction the crime, and to hear people talking of the of a former assertion, but was simply the circumstances of its commission. If any ju- statement of a conclusion, and not of a fact; ror should swear that if the reports which while the assertion by him that he had he had heard were true, whether the reports formed an opinion which it would take some came from newspapers or from individuals, evidence to remove was the statement of a be believed the defendant guilty or inno- fact, and from such facts the court is betcent, or that he had made up his mind as ter able to deduce conclusions than the juror to his guilt or innocence, that would be one himself. If reading reports of the commisproposition; but where he answers, in sub- sion of crime in newspapers produces the stance, that he has read these reports, and impression on minds of jurors that this juror that he has heard this talk, and that he does declared it did on his, and such jurors are believe them to be true or untrue, as the case pronounced by the courts to be competent, may be, that is altogether another proposi- then the practical result will be that men tion; and that is what this witness substan- will be tried and convicted by the newstially testified to, either that he believed papers, instead of by the testimony wbich is them to be true or untrue. If, as he said, adduced in court, under the rules of law prehe had talked with a friend of his who had scribed for such trials. If a juror has heard been subpoenaed as a witness in the primary a statement concerning the facts in a case examination, and that friend related to him from a friend in whom he has confidence, the facts concerning the crime, and from and that statement made such an impres. such relation he formed an opinion as to the sion on bis mind that it created an opinion guilt or innocence of the defendant, and if as to the guilt or innocence of the defendant, it is true, as he said, that, if he went into it is very doubtful if he would be able to the trial of this case, unless there were evi. entirely separate that information from the dence to remove that opinion he would have testimony which he may listen to during the to act upon the opinion which he already progress of the trial; and the effect of such entertained, then, certainly, he was not an testimony is liable to be colored by what impartial juror; and if the opinion was that he knows, or thinks he knows, about the the defendant was guilty, and the testimony case from the prior information which he of the state and the defense balanced, his has obtained. The result is that just to the verdict, according to his statement, would extent that he is influenced by this outside have to be that of guilty. In other words, information are the defendant's rights dethe defendant would be deprived of the right termined by the testimony of a witness which he has to be proven guilty beyond a whom he is not able to meet face to face reasonable doubt. He would not even have or to examine. the benefit of the rule in a civil action of a Courts always are and should be loath to preponderance of the testimony, but he disturb the verdicts of juries for errors of would have the burden thrust upon him of this kind, but it is the constitutional right proving himself innocent. And that is the of every citizen to be tried by an impartial logical result of that condition of mind in a jury, and, when that right is denied, he must juror which is exhibited by the expression have redress. There was no occasion in this case for imposing this juror upon the defend- should not be extended. The facts disciosed ant. He was the last juror called. The de- by the examination in the case at bar satfendant had exhausted all his peremptory isfy me that the juror was a fair-minded challenges. Eleven other jurors had been man; that he appreciated the object of the impaneled who disclaimed any opinion as to examination, and with the utmost frankthe guilt or innocence of this defendant, and, ness laid bare his mind, that the court might no doubt, hundreds of men could have been form an intelligent conclusion as to whether readily obtained who would have been compe- or not it was in such a state as to disqualify tent jurors beyond any question. It is not him from sitting as a juror. The distincnecessary at all to go to the other extreme, tion sought to be drawn by the cases relied and hold that a man must either possess so upon by the appellant between an impreslittle intelligence or energy or learning that he sion and an opinion is to my mind without has not heard of the commission of the par- force.

I can

see no distinction between ticular crime, or the detailing of the circum- them except one of degree. If one has an stances through the ordinary avenues for impression as to a fact, he has an opinion the dissemination of alleged information of in regard thereto; and, if it requires evithis kind. But this witness, we think, dence to change an opinion, it will also reshowed either that he did not have sufli. quire evidence to do away with an imprescient intelligence to understand the force of sion. It seems to me that the majority of his own language, or else that he actually the court, following other courts who have did have such a fixed opinion in the case as passed upon like questions, have made a ought to preclude him from acting as a juror. mistake in assuming that, because a juror

This defendant was charged with an atro- has an impression or an opinion, he will neccious crime, committed in a brutal, heartless, essarily act upon it, uniess it is removed fiendish manner, and the community doubt- by evidence. In my opinion, a fair-minded less was justly excited, incensed, and out- man will do no such thing. He may have raged; but these features of the case fur- an opinion founded upon information not nish the strongest reason for according him obtained during the progress of the trial, a trial by an impartial and unprejudiced and yet be able to comply with his oath as a jury, totally uninfluenced by public senti- | juror, and decide the case solely upon the ment,-a jury every member of which could evidence introduced at such trial. The rule without question pass upon his guilt or inno announced, if carried to its logical conclucenee solely and exclusively from the testi. sion, will prevent any person sitting as a jumony presented at the trial.

ror who has heard anything of the purported Other errors are alleged by the appellant, facts relating to the issue to be determined but, as they are not liable to occur upon a upon the trial. If he has heard anything of new trial, we will not notice them. For the the kind, his mind must necessarily have error above discussed, the cause will be re- received some impression therefrom, and, versed, with instructions to grant a new if it has, such impression will remain until trial.

something is brought to his attention which

will remove it; and, if it is to be assumed ANDERS and GORDON, JJ., concur. that the impression will influence his deci.

sion, it will, in every such case, require eviHOYT, C. J. (dissenting). I am unable to dence to put his mind in such a state that find anything in the record which satisfies he is qualified to sit as a juror. If a juror me that the trial court abused its discretion has an impression at all, he cannot honestly in denying the challenge for cause inter- otherwise answer the question as to whethposed by the defendant to the juror Kellogg. er or not it will require evidence to remove In my opinion, the examination of the juror it than to say that it will. But it does disclosed an entirely different state of mind not follow that such impression must be refrom that disclosed by the examination in moved to enable him to decide the case the case of State v. Murphy (Wash.) 37 Pac. upon the evidence introduced at the trial. If 420, referred to in the foregoing opinion. he is an honest man, he will try to disreIn that case facts were made to appear gard any such impression or opinion, and which might well induce the belief that the decide the case upon the evidence so injuror was in such a state of mind as would troduced; and, if our statute means any. disqualify him. His answers to some of thing, it means that it is the duty of the the questions showed such a want of frank- trial court thereunder to determine whether ness as to warrant the belief that he did not or not he can do his duty in that regard. fully realize the importance of the examina- | If it is assumed that the impression or opintion. It was therefore competent for this ion must be removed by evidence, then one court to find that the juror was in fact dis- having an opinion of any kind, or even an qualified, and that the court committed er- impression, is disqualified. Such a holding ror in coming to a contrary conclusion. But, entirely negatives our statute, which proin my opinion, the facts of that case none vides that the fact that the juror has an too well authorized an interference with opinion shall not disqualify him if the trial the discretion vested by law in the trial court finds that he can fairly try the case, court, and the doctrine therein announced Under such statute, the trial court finds a

H

fact upon evidence introduced before it, and Pruyn & Ready had been appellant's attorsuch finding should not be set aside by the neys in the divorce proceedings, and exappellate court, uniess it is clearly wrong. pressed some doubts as to the propriety of Such is the general rule as to the force to an employment to attempt to disturb the debe given to findings of fact by the trial cree in that case. They, however, resolved court; and where, as in this case, the fact the doubt in favor of the employment, and to be determined is as to the state of mind told the respondent that in some recent case of a person examined before such court, it to which appellant was a party such damshould be applied to the fullest extent. In aging testimony had been elicited against her such a case the bearing and appearance of that they were satisfied a modification of the person examined furnish more informa- the decree could be obtained. In fact, they. tion than what he says. In my opinion, the thought that appellant, rather than have the judgment and sentence should be affirmed. testimony reproduced, would consent to re

linquish the possession of the children. At

all events, they received a fee of $10 from (11 Wash. 128)

respondent, and Ready went to see the apACKLEY v. BURCHARD.

pellant, and brought her down to the office

of Pruyn & Ready for a conference. The le(Supreme Court of Washington. Feb. 8,

sult of said conference was that an agree1895.)

ment in writing was executed, whereby the DIVORCE —CUSTODY OF CHILDREN EVIDENCE AS custody of the minor children was to be TO STIPULATION.

given to respondent. The respondent then In habeas corpus proceedings by a di- took charge of the children, and took them to vorced wife to get possession of her children. it

his home in Lewis county, where they reappeared that, after the decree of divorce, which gave her the custody of the children, a stipu

mained in his undisputed possession until lation, afterwards lost, was entered into in re- about a year afterwards, when petitioner gard to their custody, which, the husband claim

clandestinely took them from the possession ed, provided that he should have the sole custody of them, but which, the wife claimed, gave

of the respondent. An arrest for kidnapping them to him only temporarily. The testimony

followed. The respondent again obtained of the busband's attorneys, who drew up the possession of the children, and this writ was stipulation, was so contradictory as to be worth

sued out to obtain their possession. Reless. The testimony of the person who married the wife after her divorce, which supported

spondent, answering, set up the agreement, the wife's claim, was contradicted by two let- which it was alleged had been lost or misters written to another daughter of the husband, placed through the negligence or carelessin regard to the children, after the time the

ness of Attorneys Pruyn & Ready, or through wife claimed the husband was to surrender them. Held, that a finding that the stipulation

their collusion with the appellant; and the gave the sole custody of the children to the hus- court, upon the trial, refused to make an band was proper.

order modifying the decree, but, finding that Appeal from superior court, Kittitas coun

the custody of the children was rightfully in ty; Carroll B. Graves, Judge.

the father, refused the writ; and from this In the matter of the application for a writ

order of the court this appeal is taken. of habeas corpus by Laura J. Ackley against

There is some conflict in the testimony in Clinton A. Burchard. From a judgment de

this case, the respondent swearing positively nying the writ, petitioner appeals. Affirmed.

that the agreement executed was to the

effect that he was to have the permanent Mires & Warner and Herren & Hubbell,

care and custody of the children, while the for appellant. Reynolds & Stewart, for re

appellant and her husband swear that he spondent.

was to have the care and custody of the

children until the next July. While the testiDUNBAR, J. On May 18, 1891, the peti. mony of Pruyn & Ready on their direct extioner and Clinton A. Burchard, the respond- amination rather tends to strengthen the ent, were divorced by decree of the superior contention of the appellant, their crosscourt, and in said decree the care and cus- examination shows that it must have been tody of the minor children, Mary Ella Burch- their understanding of the contract which ard and Mattie Eva Burchard, who are the was executed that the permanent custody of subjects of this petition, were awarded to the children was given to the respondent. appellant, petitioner herein. The appellant Ready swears that he does not think that afterwards married one H. C. Ackley, and they would have charged the respondent $10 sues out this writ in the name of Laura J. simply for bringing about the conference Ackley. On May 4, 1893, the respondent, which was brought about through his instruwho lives in Lewis county, went to Ellens. mentality. Pruyn's testimony is to the effect burgh, and employed Pruyn & Ready, a that he remembers of some kind of a stipulafirm of lawyers, to obtain an order nunc pro tion made and entered into between the aptunc in the case of Burchard v. Burchard, - pellant and the respondent, and that he does the case above referred to,--modifying the not know where the paper is at the present original decree therein to the extent of giv- time, although he has made due and diligent ing the custody and control of said children search for the same; that to the best of his to respondent, Burchard. It seems that recollection the contents were that the deeree

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