of acquittal, the same proceedings must be had thereon, in relation to the custody of the defendant, his bail, or money deposited in lieu thereof, as are prescribed in section 1362. [L. 1864; D. Cd. § 151; H. C. § 1350.]

§ 1386. Trial Jury, How Formed.

In criminal actions, the trial jury is formed in the manner prescribed in chapter II of title II of the code of civil procedure, except as otherwise expressly provided in this chapter. [L. 1864; D. Cd. § 152; H. C. § 1351.]

§ 1387. Challenge for Implied Bias, for What May be Taken.

A challenge for implied bias may be taken for any of the following causes, and for no other:

1. Consanguinity or affinity, within the fourth degree, to the person alleged to be injured by the crime charged in the indictment, or the person indorsed thereon as the prosecutor, or to the defendant;

2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, with the defendant, or the person alleged to be injured by the crime charged in the indictment, or indorsed thereon as prosecutor, or being a member of the family, a partner in business with, or in the employment on wages for either of such persons, or being surety or bail in the action or otherwise for the defendant;

3. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment;

4. Having been one of a jury formerly sworn in the same action, and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it;

5. Having served as a juror in a civil action, suit, or proceeding brought against the defendant for substantially the same act charged as a crime;

6. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude a person from finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror. [L. 1864; D. Cd. § 153; H. C. § 1352.]

§ 1388. Challenges, Several Defendants, Either May Challenge, but can not Sever Therein.

All challenges, whether peremptory or for cause, may be taken by the state or defendant, but when several defendants are tried together, they can not sever their challenges, but must join therein. [L. 1864; D. Cd. § 154; H. C. § 1353.]

§ 1389. Peremptory Challenges, Number Of.

If the crime charged in the indictment be punishable with death or imprisonment in the penitentiary for life, the defendant shall be entitled to twelve and the state to six peremptory challenges, and no more; and if

the crime be punishable otherwise, the defendant shall be entitled to six and the state to only three such challenges. [L. 1864; D. Cd. § 155; L. 1865, p. 23, § 3; H. C. § 1354.]

See note to § 122, ante.

§ 1390. Provisions not Applicable in Criminal Actions.

Sections 122 and 125 of the code of civil procedure shall not apply to the formation of the trial jury in criminal actions. [L. 1864; D. Cd. § 156; H. C. § 1355.]

§ 1391. Conduct of Trial.

Chapter III of title II of the code of civil procedure shall apply to and regulate the conduct of the trial of criminal actions. [L. 1864; D. Cd. § 157; H. C. § 1356.]

§ 1392. Presumption of Innocence.

A defendant in a criminal action is presumed to be innocent until the contrary be proven; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to be acquitted. [L. 1864; D. Cd. § 203; D. & L. § 158; H. C. § 1357.]

As to presumption of innocence, see § 788, ante, and note.

As to definitions and instructions upon reasonable doubt, see State v. Glass, 5 Or. 73; State v. Ah Lee, 7 Or. 237; State v.

$1393. Insanity Must be Proven.

Conally, 3 Or. 73; State v. Morey, 25 Or. 255, 35 Pac. 655; State v. Roberts, 15 Or. 187, 13 Pac. 896; State v. Ching Ling, 16 Or. 427, 18 Pac. 844.

When the commission of the act charged as a crime is proven, and the defense sought to be established is the insanity of the defendant, the same must be proven beyond a reasonable doubt; and no act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition; but whenever the actual existence of any particular motive, purpose, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the defendant was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act. [L. 1864; D. Cd. § 204; D. & L. § 159; H. C. § 1358.]

Drunkenness does not excuse the defendant in a criminal action, but may be considered by the jury in determining the purpose, motive or intent with which he committed the crime, in order to fix the degree of his guilt: State v. Zorn, 22 Or. 600, 30 Pac. 317.

Where the existence of a particular motive, purpose, or intent is necessary to constitute a particular species or degree of crime, and intoxication is an element of the defense, the intent is the test of criminal liability, regardless of motive or purpose: State v. Hansen, 25 Or. 405, 35 Pac. 976.

The omission of the word "intent" in a charge otherwise substantially in the language of the statute. is not reversible error, where the defendant was charged with assault with intent to kill, and was convicted only of assault with a deadly weapon; a conviction of such degree eliminating the

VOL. I.-36.

question of intent to kill: State v. Lavery, 35 Or. 408, 58 Pac. 107.

In determining whether a killing was done with deliberation or premeditation the jury may consider voluntary intoxication of defendant in connection with the facts generally, but voluntarily intoxication can not reduce a killing to manslaughter: State v. Weaver. 35 Or. 417, 58 Pac. 109.

The defense of insanity must fail, if it appear that the accused had reason sufficient to enable him to distinguish right and wrong, and it appear that he knew the act was wrong and criminal, and that he would suffer punishment therefor: State v. Murray, 11 Ór. 413, 5 Pac. 55.

Where a defense is insanity, the burden of proof is always with the defendant to establish such insanity: State v. Hansen, 25 Or. 411, 35 Pac. 976, 36 Pac. 296.

When the jury finds on a defense of insanity, its findings can not be disturbed: State v. Hansen, 25 Or. 410, 35 Pac. 976.

§ 1394. In Case of Doubt, Conviction for Lowest Degree.

When it appears that the defendant has committed a crime, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only. [L. 1864; D. Cd. § 205; D. & L. § 160; H. C. § 1359.]

A person charged with murder in the first degree may be convicted under such indictment of murder in the second degree, or of manslaughter. On the trial of such case, the degree of guilt as well as the guilt itself should be left to the determination of the jury, and not assumed by the court: State v. Grant, 7 Or. 422.

It is the duty of the trial court to instruct the jury in a criminal prosecution where the offense charged necessarily includes a lesser offense, that they have the right to find the accused guilty of the latter where there is a doubt of his guilt of the former, and where it appears from the record that the instruction was not given in such a case, it is held to be error which the accused could take advantage of upon appeal without having interposed an exception. Such an instruction is the duty of the trial court of its own motion, and

the defendant does not waive his objection by failing to call the court's attention to it at the time: State v. Cody, 18 Or. 519, 23 Pac. 891.

Defendant may be convicted of petty larceny under an indictment for larceny from a store, where the value of the property is alleged, and under such circumstances it is the duty of the court to instruct the jury to that effect: State v. Hanlon, 32 Or. 102, 48 Pac. 353.

One charged with murder in the first degree by poisoning is not entitled as a matter of law to have the jury instructed to convict as charged or acquit. If there is any evidence tending to raise a doubt as to the intent with which the act was committed, the conviction should be for the lower degree only, and evidence of good reputation is sufficient for that purpose: State v. Ellsworth, 30 Or. 161, 47 Pac. 199.

§ 1395. Separate Trials, Defendants Entitled to, When.

When two or more defendants are jointly indicted for a felony, any defendant requiring it must be tried separately; but in other cases, defendants jointly indicted may be tried separately or jointly, in the discretion of the court. [L. 1864; D. Cd. § 206; D. & L. § 161; H. C. § 1360.]

§ 1396. Discharge of One Defendant for Witness, when Ordered.

When two or more persons are charged in the same indictment, the court may, at any time before the defendant has gone into his defense, on the application of the district attorney, direct any defendant to be discharged from the indictment, so that he may be a witness for the state. D. Cd. § 207 ; D. & L. § 162 ; H. C. § 1361.]

One who is jointly indicted with the defendant on trial, but who has entered a plea of guilty, is a competent witness for the state, nor is he rendered incompetent by promise of a mitigation of his punishment, or a pardon; such fact affects merely

[L. 1864;

the weight of his testimony: State v. Magone, 32 Or. 206, 51 Pac. 453.

An objection that a codefendant is not a competent witness is waived unless made at the trial; it can not be urged for the first time on appeal: State v. Steeves, 29 Or. 98, 43 Pac. 947.

§ 1397. Discharge of a Defendant to Testify for Codefendant, when Ordered. When two or more persons are charged in the same indictment, and the court is of opinion that, in regard to a particular defendant, there is not sufficient evidence to put him on his defense, it must, if requested by another defendant then on trial, order him to be discharged from the indictment, before the evidence is closed, that he may be a witness for his codefendant. {L. 1864; D. Cd. § 208; D. & L. §163; H. C. § 1362.]

Where several are jointly indicted, one is not a competent witness for the other until acquitted, or convicted, or discharged, under this section: Latshaw v. Territory, 1 Or. 141.

§ 1398. Effect of Such Discharge, and Order Therefor.

The order provided for in the last two sections, when made, must state

the reasons for making it; and it is an acquittal of the defendant discharged, and a bar to another prosecution for the same crime. [L. 1864; D. Cd. § 209; D. & L. § 164; H. C. § 1363.]

§ 1399. Law of Evidence in Criminal Actions.

The law of evidence in civil actions is also the law of evidence in criminal actions and proceedings, except as otherwise specially provided in this code. [L. 1864; D. Cd. § 210; D. & L. § 165; H. C. § 1364.]

EVIDENCE IN CRIMINAL ACTIONS, GENERALLY.-It is better for courts in criminal actions to adopt the liberal than the rigid or technical rule in the admission of evidence for the defendant, for any error, however slight, in this regard, affecting the defendant's right, is a ground for reversal: State v. O'Neil, 13 Ör. 183, 9 Pac. 284; and, therefore, testimony for the defendant having any possible bearing on his case should not be excluded: State v. Mah Jim, 13 Or. 235, 10 Pac. 306.

The state on a criminal trial need do no more than prove substantially the charge made: Howell v. State, 1 Or. 241. ADMISSIONS AND CONFESSIONS.— See note to § 718, ante, and also note to § 1403, in regard to confessions in criminal actions. RES GESTAE: See note to § 698. PRESUMPTION OF INNOCENCE: note to 788.

REASONABLE

§ 1392. ante.

livered of a child a short time before the trial is admissible in connection with evidence that she was under the age of consent at the time of the trial, as tending to prove the corpus delicti: State v. Robinson, 32 Or. 49, 48 Pac. 357.

FLIGHT AS EVIDENCE OF GUILT.— The flight of a person suspected of a crime is a circumstance to be weighed by the jury, as tending in some degree to prove consciousness of guilt: State v. Garrand, 5 Or. 216.

POSSESSION OF STOLEN PROPERTY is merely a circumstance from which guilt may be inferred; it does not raise a presumption of law as to guilt: State v. Hale, 12 Or. 352, 7 Pac. 523.

THE GOOD REPUTATION AND CHARACTER OF DEFENDANT may always be shown in criminal cases, and such proof See must be taken into consideration by the jury, and weighed with the other evidence in the case, in determining the question of guilt or innocence: State v. Garrand, 5 Or. 156; State v. Porter, 32 Or. 158, 49 Pac. 964.

DOUBT: See note to

DYING DECLARATIONS: See note to § 718.

CORPUS DELICTI.-Evidence that the prosecutrix upon a trial for rape was de

As to manner of impeaching character, see note to §§ 853 and 854.

$1400. Defendant May Testify in His Own Behalf.

In the trial of or examination upon all indictments, complaints, information, and other proceedings before any court, magistrate, jury, grand jury, or other tribunal, against persons accused or charged with the commission of crimes or offenses, the person so charged or accused shall, at his own request, but not otherwise, be deemed a competent witness, the credit to be given to his testimony being left solely to the jury, under the instructions of the court, or to the discrimination of the magitsrate, grand jury, or other tribunal before which such testimony may be given: Provided, his waiver of said right shall not create any presumption against him; that such defendant or accused, when offering his testimony as a witness in his own behalf, shall be deemed to have given to the prosecution a right to cross-examination upon all facts to which he has testified, tending to his conviction or acquittal. [L. 1864; D. Cd. § 211; D. & L. § 166; L. 1880, p. 28; H. C. § 1365.]

The failure of the defendant to testify furnishes no inference of guilt or innocence, nor can unfavorable comment be made thereon by counsel, and, if made, and an objection to such action of counsel is overruled, it will be ground for reversal: State v. Anderson, 10 Or. 448.

Where the defendant does not take the witness stand, the court is not required of its own motion to instruct the jury that there is no presumption of guilt from such fact. but if requested so to instruct, it is its duty to do so: State v. Magers, 36 Or. 51, 58 Pac. 892.

This statute strictly confines the right to cross-examine a defendant to the facts testified to in chief, and it is error to require the defendant on cross-examination to write his own name or that of another person. when he has not testified in reference thereto in his direct examination: State v. Lurch, 12 Or. 102, 6 Pac. 411.

A defendant as a witness in his own behalf, can not be asked whether or not he has killed a man some other time, and other questions not testified to in his direct testimony: State v. Saunders, 14 Or. 308, 12 Pac. 441.

The case of State v. Abrams, 11 Or. 169, 8 Pac. 327, holds that when a defendant offers himself as a witness he subjects himself to the ordinary rules of crossexamination.

These three cases last cited are the subject of discussion in State v. Bartmess, 33 Or. 121, 54 Pac. 167, where it is held that the case of State v. Abrams is a little broad in that a defendant may not be interrogated as to any other criminal acts he may have committed, in which respect he differs from other witnesses, but that, when he offers himself as a witness, he may be asked as to statements he has made, as a foundation for impeaching his testimony by contradictory statements, and may be cross-examined as to all matters germane to his testimony in chief. See, also, State v. Gallo, 18 Or. 423, 23 Pac. 264. Where the defendant has undertaken on his direct examination to give a general account of the occurrences preceding the commission of the alleged offense, he may be asked on cross-examination as to de

tails that he does not give: State v. Weaver, 35 Or. 416, 58 Pac. 109.

The allowing of a question on examination outside the proper limit, where such question and answer are immaterial, is not ground for reversal: State v. Moore, 32 Or. 79, 48 Pac. 468.

The instruction to a jury that the defendant is "permitted" to be a witness in his own behalf, does not express an idea antagonistic to the absolute right which the statute guarantees him in this respect, and is not erroneous: State v. Porter, 32 Or. 156, 49 Pac. 694.

A jury has a right to take into consideration the interest of the defendant in the case, and it is to be the exclusive judge of his credibility, but the jury have no right, because the witness is also the party accused, to disregard his evidence: State v. Clements, 15 Or. 250, 14 Pac. 410. This section did not remove the disqualification as to codefendants: State v. Drake, 11 Or. 396, 4 Pac. 1204.

§ 1401. When Husband and Wife May Testify for or Against Each Other. In all criminal actions, where the husband is the party accused, the wife shall be a competent witness, and when the wife is the party accused, the husband shall be a competent witness; but neither husband nor wife, in such cases, shall be compelled or allowed to testify in such case unless by consent of both of them: Provided, that in all cases of personal violence upon either by the other, the injured party, husband or wife, shall be allowed to testify against the other. [L. 1864; D. Cd. § 212; D. & L. § 167; L. 1880, p. 29, § 2; H. C. § 1366.]

The law in regard to husband and wife testifying for or against each other in the criminal code is complete in itself, and the law in that regard applicable to civil actions has no bearing: State v. McGrath, 35 Or. 111, 57 Pac. 321.

Argument by the prosecuting attorney on a prosecution for homicide, allowed over the objection of the accused, to the effect that the failure to call the wife of the accused, who was present at the homicide, was proof of the fact that she would have testified adversely to him if called, con

stitutes reversible error, since the wife can not be compelled to become a witness for her husband, and the record was silent as to whether she had given her consent or not: State v. Hatcher. 29 Or. 309, 44 Pac. 584.

The consent of one spouse to the testimony of the other can not be implied from the fact that the defendant, who is one spouse, has taken the stand in his own behalf, as in civil actions, but such consent must be an active consent: State v. MeGrath, 35 Or. 112, 57 Pac. 321.

§ 1402. Evidence in Criminal Actions to be Given Orally, Except.

In a criminal action, the testimony of a witness must be given orally, in the presence of the court and jury, except in the case of a witness whose testimony is taken by deposition, by order of the court in pursuance of the consent of the parties, as provided in sections 1379 to 1385, inclusive, of this code. [L. 1864; D. Cd. § 213; D. & L. § 168; H. C. § 1367.]

The provision of the Oregon Constitution, does it apply to such documentary eviArt. I, § 4. that in all criminal prosecutions dence to show collateral facts as would be the accused shall have the right to meet admissible under the rules of the common the witnesses face to face, does not prohibit law in other cases: State v. Saunders, 14 the admission of dying declarations, nor Or. 300, 12 Pac. 441.

§ 1403. Confession of Defendant, when Evidence, and Its Effect.

A confession of a defendant, whether in the court of judicial proceedings or to a private person, can not be given in evidence against him, when made under the influence of fear produced by threats; nor is a confession. only sufficient to warrant his conviction, without some other proof that the