Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-21

din v. McGinn, 20 Or. 15. In State v.
Eddon, s Wash 292, 300, the supreme
court of that state construed their
statute from which section 1876, L. O..
L., was taken, to mean that the per-
emptory challenges should be used
first by one party and then by the
other in proportion to the number
allotted to each, working out as a
result that where the defendant was
allowed IL and the state six, the for
mer should use two to the states one
of such challenges. Similar statutes
have received like construction in
Idaho and Montana, State v.
Browne, Idaho, 723; State V. Sloan,
% Mont. 29S.
In our judgment, however, it is
not necessary to rely on this con-
struction of the law. The code of
civil procedure has its origin in the
act of the legislative assembly Of
October IL, 1862, while the code of
criminal procedure is embodied in
the act of October 10, 1864, and
amendments thereto. Deady's Code,
PIP. 1879, AL. They are independent
acts having no relation to each 9TH
er except as provided by references
from the latter to the former. In the
formation Of the jury the criminal
code declares that 'in criminal ac-
tons, the trial jury is formed in the
manner prescribed in Chapter II of
Title II. of the code of civil proce-
dure, except as otherwise expressly
provided in this chapter" L. o. L.
Sec. 1920. The criminal code in the
same chapter excludes the civil chal-
lenge for implied bias (Sec 1872, SUI
pra) and substitutes one Of its own.
IL. 0. L. Sec 1921 besides dispens-
ing with the equality in the number
of peremptory challenges designated
in Sec. 1876, supra, and allowing the
/ defendant in criminal actions double
the number apportioned to the state,
In these respects the criminal code
itself provides otherwise than the
civil code. Section 1920, supra, must
be construed to be a reference to the
civil code as it was at the date of
the enactment of the criminal code. 1t
is as if Chapter II. of Title II. of the
act of October II, 1862, except Sec
tions 1872 and 1875, were reprinted in
the criminal code as part of the lat
| ter. 1t is a rule of statutory con-
struCtion in this state that where the
provisions of one statute are incor-
porated into another by mere refer
ence subsequent change in the
former will not disturb the terms of
the latter. Tillamook City " Tilla-
nook county 1O7 Pac. 4S2; Ska "
C. & N. w. Ry. Co., 21 Wis. 975; Peo-
pie ex rel v Webster, 2S N. Y. Supp.
SAG; Shull V. Barton, 5S Neb. TAI;
Schwenke v. Union Depot, etc, Z
Colo. 512; Ex parte Grow Dog, 1O9
U. S. 556; Wick V. Ft. Plain Ry. Co.,
so N. Y. Supp. 479. We conclude
that the legislative assembly in
amending section 1876 in 1909 must
have had in mind the autonomy Of
the criminal code as separate act;
that it was otherwise provided there
in about the peremptory challenges;
and that on account of the disparity
between the number allowed to each
party in criminal cases it would be
impracticable to have them alternate
one by one. Thus the criminal code
was left intact Strictly speaking,
the court could have required all
challenges to be taken by both par
ties as to each juror before another
was drawn from the box( but they
were INDUCED by the court in making
their peremptory challenges to par
ticular jurors after the others were
examined. The defendants rights
were not abused. He was not de-
prived of any of the means by which
the law allows him to exclude jur-
ors from the panel. The trial jury
was legally and properly selected.
It is impossible within the limits
of an ordinary opinion to notice in
detail each one of the IA assignments
of error noted in the bill Of excep-
tions. The principal contention of
the defendant is that the court erred
in admitting testimony about the ac-
tions and private conferences be-
tween the defendants Shields, Green
and Caseday in Monument and Ham
ilton the evening before the killing
of Snyder and of the declarations and
threats of Shields and his conduct In
trying to get different parties to help
hang Snyder. This theory Of objec-
ton runs throughout the case and Is
the foundation Of most of the excep-
tions to the charge of the court. 1t
is rare that criminal conspiracy
can be proven by direct and positive
testimony. Most generally the pros
ecution is compelled to rely on cir
cumstantial evidence. 1t is within
the discretion of the court not only
by virtue of our statute but also in