State v. Mortensen. that this alleged revelation does not refer to any contested or disputed question in the case, as it is conceded that the body of Hay was in fact found and dug up in the vicinity and near the defendant's premises, I fail to see how it was possible for defendant to be prejudiced by the testimony referred to. I therefore concur in the foregoing opinion prepared by Mr. Justice BARTCH in this case. ON REHEARING. (Sept. 17, 1903.) MCCARTY, J.-A petition for a rehearing has been filed in this case. The principal ground upon which the motion is based is that the court below overruled a motion to permit the defendant to introduce oral testimony in support of an allegation in the motion of misconduct on the part of the jury while viewing the premises of the defendant and those where the body of the deceased was found. The record shows that at the conclusion of the reading of the affidavits filed by defendant in support of the motion and counter affidavits filed by the State the court ruled that the affidavits in support of the motion were insufficient to authorize the court to permit the introduction of oral testimony in support of it, whereupon the counsel for defendant stated orally to the court that Royal B. Young, one of the officers in charge of the jury, while viewing the aforesaid premises, pointed out to the jury where certain blood stains were found, and that the same officer, while escorting the jury over the premises of defendant, was asked certain questions about the condition in which said premises were in at the time the body of the deceased was discovered, and talked about other matters that had been brought out in evidence on the trial of the case. Counsel for the defendant further stated to the court that the officer, Royal B. Young, who was present in court at the time, refused to make affidavit as to what State v. Mortensen. he knew respecting the conduct of the jurors on that occasion. Counsel, in concluding his remarks, said as follows: "That is what I desire to prove, and desire to take an exception to the ruling of the court. The Court: The court has not ruled yet. Do you desire an objection, Mr. Eichnor (addressing the attorney for the State)? Mr. Eichnor: The State objects to it because it is not in proper form, and there is nothing in the original motion of that kind. The Court: The court will take an adjournment to permit you to get the affidavit of Mr. Young. I take it, if Mr. Young, as an officer of this court, has any facts, he will make an affidavit. The statute provides these matters must be by affidavit. We will take a recess until 2 o'clock. Mr. Eichnor: I understand Mr. Young refuses to make an affidavit, and there is no power to compel him to make an affidavit. The Court: The court will take a recess until 2 o'clock. In the meantime you may apply to Mr. Young to make an affidavit, and, if he does not then make an affidavit, the court will then decide the question. Mr. Eichnor: The court does not order Mr. Young to make an affidavit. The Court: No, the court has made no order. Mr. Eichnor: If Mr. Young refuses to make an affidavit, he has that right. Mr. B. J. Stewart: If the court please, we have asked Mr. Young to make an affidavit. The Court: The court has made a ruling on this matter, and has adjourned until 2 o'clock. You may apply to Mr. Young to make an affidavit, and, if he refuses, at that time you may apply to the court for further order. (Recess at 11 a. m. until 2 p. m.)" The record shows that at 2 o'clock p. m. the matter was again taken up, and the following occurred: "The Court: Anything further to offer? Mr. B. J. Stewart: Nothing further to offer. The Court: No authorities to present? Mr. B. J. Stewart: No authorities. The Court: The motion of the defendant will be denied." It will thus be observed that the court, in the presence and hearing of Mr. Young, in effect stated that it would be proper for Mr. Young to make State v. Mortensen. an affidavit of any facts that he was in possession of respecting the matter in issue, and thereupon adjourned court for the purpose of enabling counsel to see Mr. Young and procure his affidavit, and, should he refuse, that they might again bring the matter to the attention of the court, and an order would be made as the facts and circumstances warranted; that later on counsel came into court, and announced that they had nothing further to offer, and the court denied the motion to introduce oral testimony as originally made. What effort, if any, counsel for defendant made during the time of adjournment to get an affidavit from Mr. Young does not appear. For aught there is in the record, they may have seen Mr. Young, and on further inquiry and investigation decided that they 'did not want his affidavit. Under these circumstances the court did not err in overruling the motion. After a lengthy and somewhat vigorous discussion of this question in the motion for rehearing, counsel for defendant say: "We respectfully submit, with all due deference to this court, that the defendant and the bar of this State are entitled to know under what circumstances, if any, oral evidence may be introduced in support of a motion for a new trial on the grounds of misconduct on the part of the jury." It is not necessary for this court to determine in this case under what circumstances, if any, a court will be authorized to permit the introduction of oral testimony in support of a motion for a new trial, as it is plain that the court in this case did not err in its ruling on this point. I therefore join with my Brethren in overruling the motion for a rehearing. Anderson v. Mammoth Min. Co. FRANK ANDERSON, Respondent, v. THE MAMMOTH MINING COMPANY, a Corporation, Appellant. No. 1475. (73 Pac. 412.) 1. Personal Injuries: Physician: Evidence: Striking Out: Harmless Error. Where, in an action for injuries, a physician who examined plaintiff was subsequently permitted, without objection, to state that by reason of plaintiff's manner during his physical examination the physicians were largely handicapped in making the same, and that plaintiff resisted to such an extent that a satisfactory examination could not be made, defendant was no prejudiced by the court's striking out a nonresponsive answer of the witness that plaintiff was supersensitive and was rather petulant. 2. Action: Prejudice of Community: New Trial. Under Revised Statutes 1898, section 3292, prescribing the grounds for a new trial, a new trial can not be granted on the ground of prejudice of the people of the county where the action was tried to such extent that an impartial jury could not be obtained. 3. Same: Change of Venue: Application After Trial: Unavailable. Where an application for a change of venue on the ground of prejudice of the inhabitants of the county where the case was to be tried, authorized by Revised Statutes 1898, section 2934, subdivision 2, was not made before trial, such objection was unavailable. (Decided August 12, 1903.) Appeal from the Fifth District Court, Juab County.— Hon. Thomas Marioneaux, Judge. Action to recover damages for personal injuries alleged to have been sustained by the plaintiff through Anderson v. Mammoth Min. Co. the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed. AFFIRMED. Andrew Howat, Esq., for appellant. Messrs. Powers, Straup & Lippman for respondent. BASKIN, C. J.-This suit was brought by Frank Anderson against the Mammoth Mining Company for damages for injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. The complaint alleges the employment of the plaintiff, the negligence of the defendant, and the injuries to the plaintiff resulting therefrom. The defendant, in its answer, admits the employment of the plaintiff, and denies that defendant was guilty of negligence, and denies that the plaintiff suffered any injury or sustained any damages. The plaintiff recovered a verdict and judgment for $6,000. From the judgment this appeal is prosecuted. The two assignments of error upon which the appellant relies are, first, that the trial court erred in striking out certain testimony of Dr. Wright, and, second, in denying its motion for a new trial. 1 1. The plaintiff having submitted himself to a physical examination, Dr. Wright, who was one of the physicians who made the examination, in answer to the question, "Just detail to the jury what examination you made of him," stated: "We endeavored to ascertain as best we could the condition of his hearing, and the cause of any defect, if it existed at the present time; also to locate the sensitive areas over the spine that the patient had complained of. I would like to explain, if you will permit me. He was rather supersensitive about our efforts and was rather petulant." The last portion of this statement was stricken out on the objection of plaintiff's attorney, and the de |