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Opinion of the Court.

having formed or expressed an opinion upon the matter or cause to be submitted to such jury [juror], founded upon public rumor, statements in public journals, or common notoriety; provided it appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters submitted to him. The challenge may be oral, but must be entered in the minutes of the court or of the phonographic reporter." (Laws 1884, p. 124.)

The juror Gabott, challenged for both actual and implied bias, testified on his direct examination, in substance, as follows: that he had heard of the case through the newspapers, and read what was represented to be the evidence; that he had talked about it since that time; that he did not think he had ever expressed an opinion on the case, but that he had formed a qualified opinion; that is, if the evidence were true, or the reports were true; that he had an opinion touching the guilt or innocence of the accused which it would take evidence to remove; but that he thought he could go into the jurybox and sit as if he had never heard of the case, and that what he had heard would not make the least difference. On his cross-examination, he testified that he knew nothing about the case, except what he had read from time to time in the public press; that, if what he had heard turned out to be the facts in the case, he had an opinion, otherwise not; that is, his opinion was a qualified one, and that, according to his present state of mind, he could sit on the jury and determine the case without reference to anything he had heard; that he was not conscious of any bias or prejudice that might prevent him from dealing with the defendant impartially; and that he thought he could try the case according to the law and the evidence given in court. On his reëxamination he further stated that he would be guided by the evidence altogether, without being influenced by any opinion he might then have, or may have previously formed.

The court held that the juror was competent. By the express terms of the statute of 1884 he could not be disqualified as a juror for an opinion formed or expressed upon statements

Opinion of the Court.

in public journals, if it appear to the court, upon his declaration under oath or otherwise, that he could and would, notwithstanding such an opinion, act impartially and fairly upon the matters submitted to him. We think that evidence, or what purports to be evidence, printed in a newspaper is a "statement in a public journal" within the meaning of the statute; and that the judgment of the court upon the competency of the juror in such cases is conclusive.

The juror Winchester, who was also challenged for actual and implied bias, testified that he had heard of the case through the papers; that he had heard it talked of some years ago; that he believed he had heard what purported to be the evidence as given in the newspapers on previous trials, and believed he had formed and expressed an opinion as to the guilt or innocence of the accused, and though it was an unqualified opinion, it was not a fixed or settled one; that at the time he read the papers, he had formed such an opinion as would have required testimony to remove it from his mind, and if his memory was refreshed as to the testimony there would probably be a renewal of the opinion he had formed; that he had not talked with any one, and could hardly tell the circumstances now; that he believed that his mind was free from any impression, and that he could sit on the jury and try the case precisely as if he had never heard of it or read of any of the facts. To inquiries of the court, the juror repeated, in substance, what he had previously said, that he thought he could sit in the jury-box and try the case according to the evidence without reference to any opinion he may then or theretofore have formed; that he could try defendant impartially according to the evidence, and that he would do so. The court thereupon held that he was competent, and the challenge was disallowed. This, ruling disposed of the challenge, and the judgment of the court, for the reasons stated, was conclusive under the statute of March, 1884. The defendant thereupon peremptorily challenged the juror, and he was excused.

The fourth juror, Harker, who was challenged for actual and implied bias by the defendant, was examined on his voir

Opinion of the Court.

dire, but after hearing his testimony the challenge was disallowed; and thereupon the district attorney peremptorily challenged him, and he was excused.

The challenges for implied bias fell, as there was no specification of the grounds for such challenges, as required by § 242 of the act of 1878.

In capital cases in Utah, the government and the accused are each allowed fifteen peremptory challenges. (Laws of Utah of 1884, c. 48, § 24.) Notwithstanding the peremptory challenges made by the defendant to two of the jurors, he had several such challenges which had not been used when the jury was completed. If, therefore, the ruling of the court in disallowing the challenges to the two for bias, actual or implied, was erroneous, no injury to the defendant followed.

Those jurors were not on the jury, and impartial and competent jurors were obtained in their place, to whom no objection was made. Hayes v. Missouri, ante, 68; Mimms v. The State, 16 Ohio St. 221; Erwin v. The State, 29 Ohio St. 186, 190. It is therefore only the ruling on the challenge to the juror Gabott which can properly be assigned as error here; and, for the reasons stated, that ruling was in our judgment correct.

2d. The deceased came to his death from a blow inflicted upon the left side of his head, which crushed his skull. A postmortem examination of the body was made by a physician, who was allowed, against the objection of the defendant, to give his opinion as to the direction from which the blow was delivered, after he had stated that his examination of the body had enabled him to form an intelligent opinion upon that point. The ground of the objection was that the direction in which the blow was delivered was not a matter for the opinion of an expert, but one which should be left to the jury. The court overruled the objection, and the defendant excepted. The witness stated, as his opinion, that the blow was delivered from behind and above the head of the person struck, and from the left toward the right. This testimony was supposed to have some bearing upon the case when considered in connection with the fact that the accused was a left-handed man. On the following morning, counsel on behalf of the prosecu

Opinion of the Court.

tion moved that this evidence should be stricken from the record, and the jury be instructed to disregard it. The counsel for the defendant did not object to that, but he wished the record to show that the application was made on the following morning. The court thereupon instructed the jury that the evidence was stricken out, and that they were not to consider it at all. The defendant now contends that it was error to admit the evidence, and that the error was not cured by striking it out and the instruction to the jury. To this the answer is, 1st, that the evidence was admissible; and, 2d, that, if not admissible, the error was cured by the evidence being stricken out with the accompanying instruction.

The opinions of witnesses are constantly taken as to the result of their observations on a great variety of subjects. All that is required in such cases is that the witnesses should be able to properly make the observations, the result of which they give; and the confidence bestowed on their conclusions will depend upon the extent and completeness of their examination, and the ability with which it is made. The court below, after observing that every person is competent to express an opinion on a question of identity, as applied to persons in his family or to handwriting, and to give his judgment in regard to the size, color, and weight of objects, and to make an estimate as to time and distance, cited a great number of cases illustrative of this doctrine. We quote a passage containing them. "He, may state his opinion," says the court, "with regard to sounds, their character, from what they proceed, and the direction from which they seem to come. State v. Shinborn, 46 N. H. 497; Commonwealth v. Pope, 103 Mass. 440; Commonwealth v. Dorsey, 103 Mass. 412. Non-experts have been allowed to testify whether certain hairs were human, Commonwealth v. Dorsey, 103 Mass. 412; that one person appeared to be sincerely attached to another, McKee v. Nelson, 4 Cowen, 355 [S. C. 15 Am. Dec. 384]; as to whether another was intoxicated, People v. Eastwood, 14 N. Y. 562; as to whether a person's conduct was insulting, Raisler v. Springer, 38 Ala. 703 [S. C. 82 Am. Dec. 736]; as to resemblance of foot-tracks, Hotchkiss v. Germania Ins. Co., 5

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Opinion of the Court.

Hun, 90; as to value of property, when competent, Brown v. Hoburger, 52 Barb. 15; Bank v. Mudgett, 44 N. Y. 514; Bedell v. Long Island Railroad, 44 N. Y. 367; Swan v. Middlesex Co., 101 Mass. 173; Synder v. Western Union Tel. Co., 25 Wis. 60; Brackett v. Edgerton, 14 Minn. 174; as to market value of cattle derived from newspapers, Cleveland, &c., Railroad v. Perkins, 17 Mich. 296; whether there was hard pan in an excavation, Currier v. Boston & Maine Railroad, 34 N. H. 498; whether one acted as if she felt sad, Culver v. Dwight, 6 Gray, 444; as to rate of speed of a railroad train on a certain occasion, Detroit, &c., Railroad v. Von Steinburg, 17 Mich. 99; as to whether noisome odors render a dwelling uncomfortable, Kearney v. Farrell, 28 Conn. 317 [S. C. 73 Ám. Dec. 677]; whether the witness noticed any change in the intelligence or understanding or any want of coherence in the remark of another, Barker v. Comins, 110 Mass. 477; Nash V. Hunt, 116 Mass. 237."

Upon the same principle, the testimony of the physician as to the direction from which the blow was delivered was admissible. It was a conclusion of fact which he would naturally draw from the examination of the wound. It was not expert testimony in the strict sense of the term, but a statement of a conclusion of fact, such as men who use their senses constantly draw from what they see and hear in the daily concerns of life. Conn. Life Ins. Co. v. Lathrop, 111 U. S. 612, 620. But, independently of this consideration, as to the admissibility of the evidence, if it was erroneously admitted, its subsequent withdrawal from the case, with the accompanying instruction, cured the error. It is true, in some instances, there may be such strong impressions made upon the minds of a jury by illegal and improper testimony, that its subsequent withdrawal will not remove the effect caused by its admission; and in that case the original objection may avail on appeal or writ of error. But such instances are exceptional. The trial of a case is not to be suspended, the jury discharged, a new one summoned, and the evidence retaken, when an error in the admission of testimony can be corrected by its withdrawal with proper instructions from the court to disregard it. We think the present

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