what purpose? A. Mr. Goodfriend wanted me to get the team, which I understood they were trying to sell, and Mr. Lynch wanted me to come, as Mr. Dwyer was in this trou

quainted here, and there was some pretty bad talk being made.

S. E. McIntyre, called on behalf of the state, denied certain allegations in defendant's affidavit that he (McIntyre) had made any violent expressions concerning defendant, or that he had at any time solicited or encouraged the doing of any violence to defendant, or that any one invited or solicited him to engage in any unlawful act towards the defendant, or that he knew of any mobs for such purpose. Upon cross-examination the witness testified: "Q. The people thought he ought to be punished for committing the crime. That feeling was general? A. I should judge so. Q. It extends to every one you know around here? A. Yes, sir; I think most every one is of that opinion. Q. Entertains a feeling against the defendant? A. I don't know as it is against him. Q. I believe you said you thought he was guilty? A. A man is not guilty until he is proven so. Q. It is a general opinion that he is guilty? A. Yes, sir. Q. All it needs is the stamp of approval of the court and jury? A. Yes, sir; to be legally guilty. Q. That is the general feeling, is it not, here? A. As far as I know. Q. Don't you think that general feeling is going to influence any juror? A. No, sir: I don't know as it would. Q. Do you think that you could get two people out of Austin that would be free from that feeling? A. I think you could out of the county. Q. What part of the county? A. From different parts. Q. You do not know where there are enough people resiling to obtain a jury? A. No, sir.".

The state also introduced a number of affidavits denying portions of the defendant's affidavits wherein he charged the affiants as advocating violent measures against him, but which did not refer to the feeling generally in the county.

Upon the last renewal of the motion for a change of venue the defendant offered the following testimony:

Scott Hickey testified as follows: "Q. What was your occupation formerly? A. An officer. Q. In Nye county? A. Yes, sir. Q. How did you first happen to come to this county? With reference to the case now on trial? A. At the request of Mr. Lynch and a man named Goodfriend, who loaned a team to these boys that came in here. Q. For

Q. Where have you been, out of town, since that time? A. In Battle Mountain, Bullion, Tonabo, and here again. Q. During all of the several times that you have been in this county, and the several places you have been, have you conversed with many citizens of this county relative to the defendant? A. Yes, sir; I have conversed with quite a number. Q. Approximately how many would you say? A. I don't know. I have talked more or less every day, and with a great many different people. Q. Have you talked with a hundred people? people? A. Yes, sir. Q. In consideration of your talking with that number of people, what would you consider the feeling here is toward the defendant? * A. Against

him. Q. In what degree, mildly or strong? A. Strongly against him. Q. Angry and excited? A. Well, they speak very strongly against him, not in his favor by any means. There is no sympathy for him." Cross-examination: "Q. How long have you known the defendant? A. I think about a year and a half. Q. You are friendly disposed towards him? A. Yes; by meeting him and speaking to him."

George Watt testified concerning his informing Deputy Sheriff Oliver of an alleged attack on the jail as follows: "A. I believe it was a week ago yesterday. Henry Dyer telephoned up to me that he would like to see me, and I came down. I met him in the door of the saloon. He called me back and said he wanted to talk with me. He was pretty much under the influence of liquor at the time. He said: 'I have been thinking this matter over, and partly made up my mind to get that fellow if I can get some of the boys to go with me; but I don't want to do anything where I would have to hurt Al Oliver.' He asked me to ask Oliver how he felt about it. He said: 'I am a cripple for life, and he killed one of my best friends, and I am pretty much enraged over it.' I went to Al, and he said to tell the boys they had better not come. * Mr. Dyer was the only per son who spoke to me about it, and he mentioned no associates. IIe said he thought he could get some of the boys to go with him. I spoke to Henry the next morning, and he said he would say no more about it. Q. From your observation, knowledge, and intercourse with the people, what would you consider the state of public feeling against this defendant throughout the county? the time it happened it was pretty strong, but I believe right now I could try Mr. Dwyer. Q. You think you could try him, and give him what you believe he is entitled to? Yes, sir; and not. any more, either. Q. Don't you think it would take a good deal of ev

dence to make you turn him loose? A. I would surely turn him loose if he was innocent. Q. You say that you believe you are in a condition to try him. You believe you know the state of facts, and from that state of facts he deserves punishment? A. From my condition at present, it is hard to tell what I would do." Recross-examination by Mr. Maestretti: "Q. Isn't it what you mean to say that, if you were taken as a juror, if the state did not show you something in the way of evidence, you would not convict him? A. No, sir. Q. You believe Q. You believe now that, although you may have been somewhat excited at first, now you would be absolutely fair? A. Yes, sir. Q. Don't you believe that that is the statement of most of the people? A. It ought to be."

H. W. Dyer testified as follows: "A. What Mr. Watt said was true, except that I said I had made up my mind to get this fellow. I do not want to be understood as saying that I had made up my mind to get this defendant; but what Mr. Watt said was true in all other respects. ** Q. Was there anything further back of your declaration to Mr. Watt? Had you consulted anybody or taken any steps toward forming a mob? A. I just asked Mr. Watt's advice."

H. J. Plummer was called by the defense and testified that he had resided in Austin since the 21st of May preceding; that he had heard E. W. Hunt, one of the jurors selected to try defendant, remark concerning the defendant: "The - they ought to hang him." E. W. Hunt was subsequently examined, and denied that he had ever made such a remark.

The foregoing contains substantially all of the material evidence before the court upon the motion, excepting that shown by the examination of the various jurymen on their voir dire. With the exception of L. A. Weller, the justice of the peace, there is not a witness who expressed an opinion that he thought a jury could be obtained that would not be influenced by the public sentiment against the defendant. The sheriff thought it possible to get such a jury, but he would not say he thought it probable. George Watt was of the opinion that he had cooled down sufficiently so that he could give the defendant a fair trial, and he expressed an opinion to the effect that the sentiments of most of the people ought to be the same as his own; but he did not venture the opinion that he believed they were. One hundred and seventy-five jurymen were examined before the jury was finally obtained, and it appears that the available jurymen of the county were very nearly exhausted when the jury was secured. Of the talesmen examined, 143 were excused by the court for having formed or expressed unqualified opinions touching the guilt or innocence of the defendant, and, all things considered, there can be but little, if any, doubt that the opinion formed or expressed went to the guilt of

the accused. After deducting from the list those that were excused for other causes, it is safe to say that 85 per cent. of the jury lists had formed or expressed an unqualified opinion as to the guilt or innocence of the defendant. Of the jury that was finally secured to try the case, 5, who resided in or near the towns of Austin or Battle Mountain, had expressed qualified opinions touching the guilt or innocence of the defendant that they stated would take evidence to remove, and of the 5 it has been strenuously contended that 2, at least, were shown to have been disqualified, namely, L. A. Lemaire and E. W. Hunt.

L. A. Lemaire, after testifying, and showing satisfactorily, we think, that the opinion which he then had was a qualified one, testified as follows concerning the expression of an opinion: "Q. Have you expressed an opinion as to the guilt or innocence of the defendant? A. Yes, sir. Q. Was that opinion expressed with a qualification, or just an expressed opinion without a qualification? A. The opinion is from what I have heard and read of the matter. Q. Did you qualify it when you expressed it? A. I don't think I qualified it. * Q. You stated that you have expressed an opinion, and without any qualifications? A. Yes, sir." Upon examination by the district attorney the juror testified: "Q. Mr. Lemaire, if I understand you correctly, you say that the opinion you expressed was one you had formed from what you had heard and read? A. Yes, sir. Q. You based your opinion on that? A. Yes, sir. Q. You have not heard any of the proceedings in the case? A. No, sir. Q. You were not present at the coroner's inquest or the preliminary examination? A. No, sir. Q. Then you have not heard any opinion, except that which you formed on what you had heard and read? A. No, sir. Q. Is that the opinion you expressed? A. Yes, sir. Q. Did you, at the time you expressed that opinion, have in your mind the reservation that it was a qualified opinion, based on those things that you had heard and read? A. If I had not heard and read anything, I could not have formed any opinion. Q. Isn't your opinion something like this: If so and so is the case I believe so and so, or if matters I have heard are true I believe such and such a thing. Was that the nature of the expressions you made? A. I took what I heard and read to be the facts of the case, and expressed an opinion accordingly. Q. You had no reason to doubt what you had heard? A. No, sir. Q. It was on the strength of that that you expressed an opinion? A. Yes, sir." The court then examined the juryman as follows: "The Court: Do you know the difference between a qualified and an unqualified opinion? A. Yes, sir. Q. What opinion did you express? Was it qualified, or unqualified? A. I think it was a qualified opinion."

The expressing of an unqualified opinion

touching the guilt or innocence of the defendant, when such opinion is not based solely upon newspaper reports, is by statute made a disqualification of a juryman, regardless of what opinion the talesman may actually have at the time of his exmination. Criminal Practice Act, § 340 (Comp. Laws, § 4305); State v. Roberts, 27 Nev. 449, 77 Pac. 598. Mr. Lemaire, having been examined both as to the opinion which he then entertained and as to an expression of an opinion which he had previously made, must have confused the two propositions; for his answers given to the court and to counsel are in conflict. It is to be regretted that his attention was not called to this conflict, and the juryman given an opportunity to express himself so that there would be no possibility of a misunderstanding. From the examination of this juryman by counsel for the state, as well as the defendant, taken alone, we think the juryman would be disqualified. The answers given to the only two questions propounded by the court, taken alone, would show him to be a qualified juryman. Taking his whole examination upon the question of the character of opinion he expressed, and it is contradictory, if not utterly confusing; a condition which one or two questions from counsel would have easily cleared.

E. W. Hunt testified that he had both formed and expressed a qualified opinion touching the guilt or innocence of the defendant. During the course of his examination the following questions were propounded and answers given: "Q. Have you ever expressed the opinion that the defendant was guilty or ought to i hung? A. No, sir. Q. Have you ever expressed the opinion that he was guilty? A. I have. Q. You have expressed that opinion? A. Yes, sir. Q. Do you entertain that opinion at this time? A. Not of the indictment. Q. Do you in any sense? A. I do of the act; yes, sir." Prior to the foregoing the following questions and answers appear in the examination of this juryman: "Q. How many people have you talked with about this case? A. Quite a number. Q. Have you heard any expressions of a favorable opinion to the defendant? A. Yes, sir; one. Q. Outside of court? A. No, sir. Q. You have expressed your opinion a good many times? A. Yes, sir. Q. You have expressed it to the effect that the defendant was guilty, have you not? A. Not of the indictment; no, sir. Q. But he was guilty of the homicide? A. Yes, sir. Q. You have expressed the opinion that the defendant was guilty of the act? Is that what you said? A. I have never expressed that opinion, because it is not necessary. There is no opinion on such a thing. Q. He is guilty of the homicide; you know that? A. I believe that to be true. I do not know it. Q. You have expressed an opinion that far, have you not? A. Yes, sir. Q. Have you expressed an opinion any further than that?

1. I expressed a qualified opinion. Q. Fur

ther than the opinion that he committed the act? A. Yes, sir. Q. But it was a qualified opinion? A. Yes, sir. opinion? A. Yes, sir. Q. You qualified it, then? A. Yes, sir. Q. How did you qualify it? A. By the word if,"

While it is urged that, upon the testimony quoted, this juryman is disqualified, we will only consider his examination, the same as that of Mr. Lemaire, as a part of the case presented to the court upon a motion for a change of venue. change of venue. From all the facts and circumstances before the court, can it be said that it was an abuse of discretion to have denied defendant's motion for a change of venue? It must be apparent that the proper solution of the question here presented is of far greater importance than the mere question of the guilt or innocence of this defendant. The right of trial by a fair and impartial jury is one of the most valuable privileges guarantied by Constitution to the citizen. The law cannot be a respecter of persons, and say that this man shall be tried by a jury uninfluenced by public sentiment, and another man must take his chances with a jury that is subject to all the insidious forces that an almost universal public sentiment has time and again been demonstrated to wield. It is the glory of our judicial system that it throws the safeguards of protection from improper influences around the high and the low, the rich and the poor, alike. No matter how low a man may fall in the scale of human degradation, no matter how deep-dyed a criminal he may be, the law says he shall not be punished for his crimes, except upon a fair and impartial trial before an unprejudiced jury. If we are to say that the showing was in this case insufficient to warrant a change of venue, we have at least established a precedent that more of a showing than that here disclosed must be made before a change of venue can properly be had. But we do not believe such precedent should be established. It is shown here by overwhelming proof that it was almost the universal belief in the county of Lander that the defendant was guilty of the crime charged. The homicide was one which naturally would create a strong feeling of prejudice against the prisoner in a county of small population and where the person killed was very generally known, respected, and popular. Even if it were possible to procure a jury of 12 men from remote parts of the county who were not acquainted with the parties, and who had not heard the case discussed, and who could readily qualify, yet it would be hardly possible for such a jury not to become aware of the existence of such a general public sentiment; for the jurymen could not help but listen to the examination of the other talesmen, nearly nine-tenths of whom were disqualifying themselves because of their opinions, a circumstance to be considered, with others in the case, even though it alone might not be sufficient to warrant a change of venue. In this case, however, a

(29 Nev. 411)

SMITH v. WELLS ESTATE CO. (No. 1,714.) (Supreme Court of Nevada. Aug. 3, 1907.)

1. APPEAL-RECORD-SUFFICIENCY.

In the absence of a waiver of objection, appellant's affidavit setting out the proceedings of the trial court would be an insufficient transcript, since the methods of taking appeals are matters of purely statutory regulation, and only bills of exception properly settled and signed by the judge and records complying with the statute will be considered.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 3, Appeal and Error, § 2462.]

2. SAME-WAIVER OF OBJECTION-BRIEF.

Under Supreme Court Rule 11 (73 Pac. xiv), requiring respondent to file and serve his brief within 15 days after the service of appellant's brief, and making a failure by either party to file his brief within the time provided a waiver of the right to orally argue the case, or to recover certain costs, and under rule 8, providing that exceptions or objections to the statement or transcript must be taken at the first term after the transcript is filed, and must be noted in the written or printed points of respondent and filed at least one day before the argument, or they will not be regarded, where appellant filed his brief February 26th and on April 1st, without making any reservation respondent obtained an order allowing it 10 days to file its brief, and it failed to file a brief or make any motion to dismiss the appeal within 15 days after the filing of appellant's brief, it waived its right to object to an irregularity in the manner or form of certification of the order appealed from.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3. Appeal and Error, §§ 2791, 2795.] 3. SAME-STATUTES CONSTRUED.

Prac. Act, § 332 (Comp. Laws, § 3427), provides that when a party, who has a right of appeal, desires a statement of the case to be annexed to the record of the judgment or order. he should prepare and file such statement and serve a copy thereof on the adverse party, who may file proposed amendments thereto, which may be settled and certified by the judge. Section 337 (Comp. Laws, § 3432) provides that the five preceding sections "shall not apply to appeals taken from an order made upon affidavit filed but such affidavit shall be annexed to the order in the place of the statement mentioned in those sections." Held, that the language quoted was not intended to authorize the filing of records on appeal set out and supported by an affidavit made after the order of the lower court and filed in the Supreme Court for the purpose of showing its proceedings, but rather to allow a simple method for taking to the Supreme Court for review orders of the district court made upon affidavits filed therein previous to the making of such orders, by filing as the record on appeal copies of such orders attached to the affidavit on which they were based, supported by the proper certificate of the clerk. 4. PLEA DIN G-DEMURRERS SUSTAINED FOR MISJOINDER-RIGHT TO AMEND.

Under Prac. Act, § 68 (Comp. Laws. § 3163), providing that the court may in furtherance of justice amend any pleading or proceeding by adding or striking out the name of any party, and section 71, providing that the court shall in every stage of an action disregard any error in the pleadings or proceedings not affecting substantial rights. where plaintiff and others, several owners of different lots, sued for the diversion of water therefrom, and a demurrer for misjoinder of parties and causes of action was sustained. it was improper to strike plaintiff's amended complaint in which he sued alone; the allegations of the amended complaint relating only to property, acts, and matters set

out in the original complaint, and both demanding damages and general relief. Norcross, J., dissenting.

Appeal from District Court, Washoe County.

Action by G. M. Smith against the Wells Estate Company. From an order dismissing his amended complaint, plaintiff appeals, and defendant moves to dismiss the appeal. Motion denied, and order appealed from reversed.

O. H. Mack, for appellant. S. Summerfield, for respondent.

TALBOT, C. J. The motion to dismiss the appeal and the merits in this case may be more conveniently understood and considered together.

The appellant, G. M. Smith, with P. W. Nicholson, T. J. Pickett, and his wife, Mary M. Pickett, filed a complaint against the Wells Estate Company, a corporation, in the court below, alleging Smith to be the owner in fee of 10 lots, together with 11⁄2 miners' inches of water in the S. O. Wells ditch, in McCormick's addition to the city of Reno, and that he is in possession of these lots and entitled to the possession of this water: that Pickett and his wife were the owners in fee of 3 lots, and 1 miners' inch of water, in the S. O. Wells ditch, in said McCormick's addition, and were in the possession of these lots and entitled to the possession of this water; that Nicholson had purchased of the plaintiff's Pickett and wife the 3 lots and 1 miners' inch of water so owned by them, and had made partial payments therefor. There was an allegation that the water flowed, and that plaintiff Smith was entitled to an easement and right of way to have it flow, through the S. O. Wells ditch to his lands, and that he had long and continuously used it therein; that the defendant, through its agents and employés, disregarding the plaintiffs' rights, had filled up large portions of the ditch above the plaintiffs' lands and diverted all the water from their premises, to the damage of the plaintiff Smith in the sum of $800. There were special allegations that, by reason of such diversion, the grass, verdure, garden, trees, and shrubbery growing on Smith's lands had dried up and died, to his damage in the sum of $260, and that he had been compelled to pump and carry all the water for his live stock and poultry and for domestic purposes in his residence, to his damage in the sum of $240. There were separate allegations of diversion of the water from and damage to the lands of the other plaintiffs. The prayer in the complaint asked for an order of the court compelling the defendant to open, repair, and clean out the S. O. Wells ditch and to let the waters of the plaintiffs flow through it undisturbed to their lands, for damages to them in separate amounts and for general relief. A demurrer to this complaint on the grounds, among others, that there was