made in the proceeding, whether it con- It cannot be said, we think, that the orders of June 12th, supra, were void. They were made after notice and hearing, and if the court committed error in making the same, the error could only be corrected by appeal or other direct attack. The receiver did not attempt in any way open to him to have the orders set aside and, hence, he is bound by them. Had the receiver obeyed these orders, and paid out the money to the creditors as directed, the orders would have been a protection to him in the event other creditors or parties to the proceeding sought to compel him to account to them for the money so paid out. Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888. [5] As the receiver is bound by these orders, so is the surety on his bond. Deegan v. Deegan, supra; Treweek v. Howard, 105 Cal. 434, 39 Pac. 20; Douglass v. Ferris, 138 N. Y. 192, 33 N. E. 1041, 34 Am. St. Rep. 435. Other questions presented by the record it is unnecessary to consider. It follows that the judgments should be affirmed. It is so ordered. in the county where the indictment is pending, it must appear that the prejudice against accused is so great as to prevent a fair trial, and it is not sufficient merely to show that great prejudice exists against him. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. § 126.*] 4. CRIMINAL LAW (§ 126*)-CHANGE OF VENUE PREJUDICE AGAINST ACCUSED. Where there was great feeling against accused in the town where the offense was committed, but that feeling did not permeate the entire county, which contained between four and five thousand possible jurors, and many of the jurors were drawn from portions of the county where the victim of accused was unknown, and where the crime was hardly known of or discussed, the refusal to grant a change of venue on the ground of the prejudice against accused was not erroneous. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. § 126.*] 5. CRIMINAL LAW (§ 121*)-CHANGE OF VENUE-DISCRETION OF TRIAL COURT. A motion for a change of venue is addressed to the sound discretion of the trial court, and where it is possible to secure an impartial jury the denial of the motion is within the court's discretion. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 241; Dec. Dig. § 121.*] 6. JURY (§ 133*)-QUALIFICATIONS OF Jurors -EXAMINATION ON VOIR DIRE. In determining the condition of a juror's mind as to his qualifications, all of his examination on voir dire should be considered and doubts as to his qualification resolved in favor of accused. Dig. §§ 586-598; Dec. Dig. § 133.*] 7. JURY (§ 99*)-QUALIFICATIONS-OPINION. A challenge to a juror, who on voir dire testified that he entertained an opinion which he could lay aside without any evidence, and that he could determine the case according to the evidence and the instructions, and that he SWEENEY, C. J., and TALBOT, J., con- had not expressed any opinion, but that he had cur. (34 Nev. 154) STATE v. CASEY.† (Supreme Court of Nevada. July 1, 1911.) 1. INDICTMENT AND INFORMATION (§ 140*)MOTION TO QUASH-DISQUALIFICATION OF GRAND JURORS-HEARING ON AFFIDAVITS. Where accused, in support of his motion to quash the indictment for nonresidence of a grand juror, presented an affidavit on information and belief averring that fact, he could not complain of the presentation by the state of an affidavit of the juror averring his residence and the disposition by the court of the motion on the affidavits, and accused, if desiring the presence of the grand juror, should have subpoenaed him, or taken his testimony by deposition. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 475; Dec. Dig. § 140.*] 2. GRAND JURY (§ 3*)-Number of Jurors. Twelve qualified grand jurors are a legal body, and may return an indictment. [Ed. Note. For other cases, see Grand Jury, Cent. Dig. §§ 3-6; Dec. Dig. § 3.*] 3. CRIMINAL LAW (§ 126*)-CHANGE OF VEN on UE-PREJUDICE AGAINST ACCUSED. at the present time some belief on the guilt or innocence of accused, based on what he had heard, was properly denied. [Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 438-448; Dec. Dig. § 99.*] 8. JURY (§ 97*)—QUALIFICATIONS-PREJUDICE. A challenge to a juror, who on voir dire admitted that he entertained a prejudice against the defense of hereditary insanity and acute alcoholic insanity, and did not believe in their existence, but who stated that if legal insanity was shown by the evidence and the instructions he would give proper credit to the defense, was properly denied. [Ed. Note. For other cases, see Jury, Cent. Dig. §§ 431-437; Dec. Dig. § 97.*] 9. CRIMINAL LAW ( 740*)—INSANITY — DEFENSE QUESTION FOR JURY. Where a defense of insanity is interposed for accused, it becomes a matter of evidence, the admissibility of which must first be passed on by the court to determine the form of insanity, and it then becomes a question of law for the court whether the form of insanity attempted to be proved is a legal defense, and if recognized the defense must be submitted to the jury by proper instructions. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 740.*] 10. JURY ($ 99*)-DISQUALIFICATION OF JURORS ABSTRACT OPINION. To require a change of venue under Comp. Laws, 4271, providing for a change of venue The existence of a mere abstract opinion of the ground that a fair trial cannot be had a juror, in which no element of malice or unFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes † Rehearing denied August 2, 1911 necessary prejudice enters, does not form a just [stantly turned, faced Mrs. Heslip, leveled his ground for the rejection of the juror, though he gun, and fired a bullet into the head of the admits that the defense of insanity, owing to lady, causing her almost instantaneous death. its abuse, raises a feeling of hostility to accused, and where the evidence shows that, not- The defendant then turned out into the withstanding his feeling against the defense. street and, pretending to place the gun to his the juror will be guided by the testimony, un-head, fired the fourth shot, making a superinfluenced by any bias, he is competent. [Ed. Note. For other cases, see Jury, Cent. Dig. §§ 438-448; Dec. Dig. § 99.*] 11. JURY (§ 133*)-IMPANELING JURORS TRIERS-DEMAND. It is not error to fail to appoint triers to determine a challenge for actual bias, where there has been no demand for the appointment of triers. ficial wound in his own head. The defendant then strolled leisurely down the street, his pistol openly in his hand, and when overtaken at Hall street by Mr. Dunn, who at once disarmed him, the defendant drew a carving knife and struck Dunn in the shoulder. When cries of "lynch him" were heard by the defendant, although feigning to be dead drunk, he had sufficient presence of 12. CRIMINAL LAW (§ 1166%*) HARMLESS mind to hastily request Officer Sullivan to ERROR IMPANELING JURORS-TRIERS-DE- protect and hurry him to the jail, and inWhere a juror, on voir dire, disclosed bias quire of Officer Sullivan, before being arreston the ground of hereditary insanity, but show-ed, "Are you an officer?" ed no bias to the legal defense of insanity, the refusal to appoint triers to determine his bias on the ground of hereditary insanity was not prejudicial. [Ed. Note.-For other cases, see Jury, Cent. Dig. § 587; Dec. Dig. § 133.*] MAND. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3115; Dec. Dig. § 11662.*] 13. CRIMINAL LAW (§ 404*)-DEMONSTRATIVE EVIDENCE-ADMISSIBILITY. Where accused shot decedent and resisted an immediate arrest by a citizen by stabbing him with a knife, and the defense relied on drunkenness and insanity, the court properly admitted the knife in evidence. The motive for the crime asserted by the prosecution was for revenge against Mrs. Mann for repudiating him, and against Mrs. Heslip for interfering with his desires. In support of the motive for the defendant's crime, and his preparation for a defense thereto, it appears that the defendant, four months before the commission of this murder, took up his residence in Goldfield and lived with one Jack Murray, who owned a cabin within a few feet of the home of Mrs. Alice Mann, one of the women shot on the night of this homicide. That Mrs. Mann reAppeal from District Court, Esmeralda sided with her husband for at least two County; Peter J. Sumers, Judge. months during the time the defendant residPatrick C. Casey was convicted of murdered with Murray, and that the ordinary neighin the first degree, and he appeals. Affirmed. M. A. Diskin and John F. Kunz, for appellant. R. C. Stoddard, Atty. Gen., and L. B. Fowler, Deputy Atty. Gen., for respondent. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 891; Dec. Dig. § 404.*] borly and friendly courtesies existed between the four. When Mr. Mann, out of employment in Goldfield, left for San Francisco to secure employment, the defendant began to attempt to force his attentions on Mrs. Mann SWEENEY, C. J. The defendant, under and to attempt to assume a too familiar the assumed name of Patrick C. Casey, was friendly relation, until he progressed to the indicted by the grand jury of Esmeralda | extent of insulting Mrs. Mann with improper county, state of Nevada, for the crime of proposals, which Mrs. Mann indignantly remurder in the first degree, for willfully, fel-pelled and rebuked the defendant for his atoniously, and with malice aforethought inflicting a mortal wound on Mrs. Lucy Heslip with a loaded pistol, from which she died on the 16th day of August, 1909. tentions, and gave all of her social time to visiting the Heslips. This action on the part of Mrs. Mann and her refusal to have anything to do with the defendant aroused his It appears from the record that on the unwarranted jealousy, and it appears he be16th day of August, 1909, at about 7 o'clock came greatly incensed at the Heslips for enin the evening, the defendant shot and killed tertaining and protecting Mrs. Mann, in the Mrs. Lucy Heslip and wounded her compan- absence of her husband, against the attemption, Mrs. Alice Mann, at Goldfield, Nev., ed attentions of the defendant towards Mrs. while these ladies, with another, were seat- Mann. Nowithstanding Mrs. Mann repulsed ed in front of the Heslip home. It appears the attentions attempted to be forced on her that on the evening of the tragedy the victim by the defendant, the defendant seemed to of the accused, Mrs. Lucy Heslip, and Mrs. believe himself privileged in his jealous rage Alice Mann and Miss Leury, while engaged to reprove her for keeping so much compain neighborly conversation, were panic strick-ny with the Heslips, and he was apparently en by the defendant, who, after coming up jealous of the time she spent away from her the street to the Heslip residence, stopped, home in company with the Heslips, for whom pulled and leveled his gun, and fired a cou- the defendant acquired a deep hatred and ple of shots, striking Mrs. Mann; and, when anger for some two weeks prior to the Mrs. Heslip, in a half rising position, scream- tragedy. ed, "What do you mean?" the defendant in Between 9 and 11 o'clock on the morning *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes came a resident of California. This affidavit was met by a counter affidavit by the grand juror Champion, disputing the fact set forth in the affidavit of the defendant, and alleging that he was at all times during the time he was a grand juror and for three years prior thereto a resident of Goldfield, Nev., and had never taken up his residence outside of the state, or had ever formed any intention of so changing his residence. The direct, personal counter affidavit of Champion thoroughly covered the affidavit of the defendant, which was made upon information and belief. of the day of the homicide, the defendant, | fendant, had moved from Nevada and beafter borrowing $1.50 from Murray, told him he was going to get drunk. Between 4 and 6 o'clock of the same day, Murray met the defendant in the Turf saloon and asked the defendant to have a drink. The defendant, who had apparently been drinking, but who was not very drunk, accepted Murray's invitation to have a drink, saying to Murray, "Jack, this will make nine that I have had." Whereupon Murray told him he had enough, and that he had better go to bed. The defendant replied, "No; I am going to get good and drunk." After attempting to borrow a gun from Hildebrandt, one of the proprietors of the saloon wherein the defendant and [1] The defendant was in no position to Murray had taken this drink, the defendant complain of the method of bringing this fact asked Hildebrandt to loan him a gun, which of residence to the attention of the court by Hildebrandt refused to do. The defendant affidavit, when the attack upon the grand then entered into a discussion with Hilde- juror was made by the defendant by affibrandt and others on the subject of the de- davit upon information and belief. If the fense of insanity, saying, among other things, defendant desired the presence of the grand in effect to Hildebrandt that, "if a man juror, he should have issued a subpoena for shoots another and then attempts suicide, him; or if he desired his testimony taken that will be conclusive evidence of insanity; that will be a conclusive defense of insanity for the shooting." That upon his failure to secure the gun from Hildebrandt, the defendant went home and got Murray's pistol, and immediately came down to the Heslip home for the purpose of killing Mrs. Mann and the Heslips, but succeeded only in part in carrying out his preconceived murderous plan in the killing of Mrs. Heslip. The defendant was tried on the 26th day of October, 1909, in the district court of the Seventh judicial district, in Esmeralda county, Nev., before a jury, found guilty of murder in the first degree, and sentenced by the court to be hanged by the neck until he be dead. A motion for a new trial was made and denied, and, from the order denying the motion for a new trial, defendant seeks relief in this court to avoid the execution of the judgment. (1) The defendant moved to quash the indictment upon the ground that Frank Champion, who was a member of the grand jury who found the indictment, was a nonresident of the state. Both the defendant and his counsel, prior to this attack upon the indictment on this ground, waived in open court all challenges and objections they had to the panel of the grand jury and to the qualifications of each individual juror thereof. See Transcript, pages 6 and 7. Conceding, for the purpose of considering this assigned error, that counsel for defendant could renew their attack upon the grand jury when both defendant and his counsel had previously waived all objections to the panel and to each individual juror thereof, even then we can see no merit in the motion to quash the indictment. The attack upon the grand jury was made by an affidavit on information and belief, stating that F. W. Champion, one of the grand jurors who brought in the indictment against the de by deposition he should have made application therefor. No such action was taken by counsel for defendant, and it was too late for him to raise this objection at the time the case was about to go to trial. As was said in volume 1 of Ency. of Evidence, page 736: "The principal service of an affidavit as evidence is to bring to the knowledge of the court facts not appearing by the record, when such facts are necessary to be shown as a basis for some preliminary or interlocutory action, or in proof of matters which are auxiliary to the trial of the cause." The presentation of affidavits on the part of the state to overcome this affirmative affidavit attack of defendant to the qualifications of this certain grand juror was in pursuance of a long-established method in this state of presenting the matter to the court, and no application having been made for the personal presence of the grand juror, or for the purpose of taking his deposition, he was in no position to complain. The court had the question of fact at issue directly presented to it by affidavit and was in position to pass upon the matter presented, and being satisfied that there was no merit in the attack, which was made just as the case was to go to trial, very properly overruled the motion to quash upon this ground. [2] (2) There is no merit in defendant's further motion to quash the indictment interposed upon the ground that no more than 12 grand jurors considered or voted on the indictment returned against the defendant. This court has recently had occasion to pass upon this point adversely to appellant's contention, and we have held that where 12 qualified grand jurors consider and vote upon an indictment that such a body of 12 grand jurors is a legal body, and can return See, State v. Williams, a valid indictment. 31 Nev. 360, 102 Pac. 974; State v. Weber, 31 Nev. 390, 103 Pac. 411. In the state of California, where the statute on the formation of grand juries and their powers is identical with our own on these matters, the Supreme Court of that state has likewise held that an indictment returned by 12 grand jurors who have considered and voted on an indictment is sufficient. People v. Roberts, 6 Cal. 214; People v. Hunter, 54 Cal. 65. [3] (3) Defendant assigns as error the ruling of the lower court, denying appellant's motion for a change of venue. This motion was made under section 306 of the Criminal Practice Act (Cutting's Compiled Laws, § 4271), which reads as follows: "A criminal action, prosecuted by indictment, may be removed from the court in which it is pending, on the application of the defendant or state, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending." The Supreme Court of Nevada, in the case of State v. Millain, 3 Nev. 432, said: "There are few cases that present themselves to appellate courts where it is more difficult to determine upon any settled principles or rule of action than in these cases relating to a change of venue. By all it is admitted that there is a broad discretionary power allowed the court of original jurisdiction. But, whilst that court has such discretion, it is still a judicial and not an arbitrary discretion. If that discretion is used in an arbitrary and oppressive manner, an appellate court is bound to correct the error. But to distinguish between what is and what is not an abuse of that discretion is often a very nice and difficult question. There are two circumstances, the existence of either of which should entitle the defendant to a change of venue. The one is the impossibility of obtaining an impartial jury. The other is such a state of public excitement against the defendant that even an impartial jury would be likely to be intimidated and overawed by public demonstrations against the accused." Again this court, in the case of State v. McLane, 15 Nev. 372, said: "On the whole, we think the application in this case for a change of venue was not materially stronger than that in the Case of Millain (3 Nev. 433), where the order overruling the motion was affirmed by this court. It is not shown in this case, any more than in that, that the parties threatening violence to the defendant were either numerous or influential; and we do not understand that the mere prevalence of a belief in the guilt of a prisoner, however widely diffused, is a circumstance from which it must be inferred that a jury would be intimidated or overawed." Again, in the case of State v. Gray, 19 Nev. 215, 8 Pac. 457, this court said: "Defendant applied for a change of venue on the ground of prejudice existing against him in the county where the indictment was pending, which would prevent him from hay ing a fair and impartial trial. The application was based upon affidavits tending to establish the fact alleged, and resisted by counter affidavits. It is unnecessary to consider the contents of the affidavits. The district court overruled the motion for the time being, until it could be shown by an examination of a sufficient number of jurors that a fair and impartial jury could not be obtained. After examining 81 persons, a jury was impaneled. The statute authorizing a change of venue in criminal cases provides that, before granting the order, the court shall be satisfied that the representations of the moving party are true. The question whether a fair and impartial jury could be obtained depended largely upon the opinions of witnesses. Opinions differed widely, and the court adopted a very satisfactory test to ascertain the fact. The practice pursued was approved in State v. Millain, 3 Nev. 433, and by the Supreme Court of California, in People v. Plummer, 9 Cal. 299, and in People v. Mahoney, 18 Cal. 181." In the case of State v. Dwyer, 29 Nev. 427, 91 Pac. 305, this court observed: "Outside of the fact that every case where a change of venue is sought must come within certain broad principles, each case must be determined upon its own particular facts." It was represented on a motion for a change of venue that intense feeling of malice and indignation was aroused against the defendant in the community by reason of the commission of the crime for which he was indicted, and that the defendant had to be removed from the county of Esmeralda to the adjoining county for safety of his life, and to avoid violence at the hands of a crowd congregated for the purpose of lynching him. It is alleged that the feeling of bias and prejudice which existed against the defendant was such that defendant would be precluded from having a fair and impartial trial in the community in which this atrocious crime was committed, and that the court abused its discretion in not granting the motion for a change of venue. port of this position, affidavits of the defendant and of M. A. Diskin, Esq., his attorney, were introduced. In sup The rule is well settled "that it is not sufficient merely to show that great prejudice exists against the accused. It must appear that the prejudice against him is so great as to prevent him from receiving a fair and impartial trial, and where evidence before the court is conflicting its decision will not be reversed upon appeal." 12 Cyc. 244, and cases cited. [4] It appears from the evidence, in the county of Esmeralda where this crime was committed, there were between four and five thousand possible jurors, and that after an examination of 76 talesmen a jury was obtained. The revolting character of the offense, for which defendant was indicted and convict An (4) It is contended by the appellant that the challenges interposed by the defendant for implied bias to talesmen Charles Sands and M. Hicks, on the ground that they had previously formed and expressed an unqualified opinion as to the guilt or innocence of the defendant, should have been allowed. We believe that a thorough examination of the record discloses that the jurymen Sands and Hicks, contrary to the contentions of appellant, did not testify on their voir dire examinations that they possessed and expressed unqualified opinions. ed, is such that it is not strange that public in denying the motion for a change of venue, sentiment should have been aroused against the accused. In fact, it would be strange if any one hearing of the cowardly and unwarranted assault could entertain sentiment otherwise. This fact in itself, however, is not sufficient to warrant a change of venue, unless it affirmatively appears that the defendant could not secure a fair and impartial trial before a fair and impartial jury. examination of the record discloses, however, that the prejudice was not such that the court was unable to secure 12 impartial jurors from a comparatively small proportion of the venire summoned within a very short time, to determine the guilt or innocence of the accused, and that while, generally speaking, there was great feeling against the defendant in the town of Goldfield, yet that feeling did not permeate the entire population of the large county from where many of the jurors were drawn, and where the victims of the defendant were unknown, and where the crime was hardly known of at all, or discussed or considered but little. Again, the trial court was in a better position to judge as to whether or not the prejudice aroused against the defendant by his act had not had time to be allayed, and public sentiment calmed to the extent of allowing the defendant a fair and impartial trial before a fair and impartial jury. [6] The law is well settled that in determining the condition of a juror's mind as to his qualifications to sit as a juror, all of his examination on his voir dire should be considered, and doubts as to this qualification should be resolved in favor of the accused, as in other matters, to the end that he may be tried by a fair and unbiased jury. State v. Buralli, 27 Nev. 41, 71 Pac. 532; State v. Williams, 28 Nev. 409, 82 Pac. 353. If trial courts will always keep in mind this rule and keep in check our young and overzealous district and other prosecuting attorneys, who sometimes tread too close to the line of getting disqualified jurors in their desire for a conviction, rather than to giving the accused his every right, fewer reversals for this common character of invasion of a defendant's rights will be necessitated and great cost to the county and state saved, and the public given less well-grounded cause for criticism for the law's delay. [7] In the record, in the examination of Sands, among others, the following questions and answers were given by the juryman Sands to questions put to him by the assistant district attorney, counsel for the defendant, and the court: [5] A motion for a change of venue is addressed to the sound discretion of the trial court, and where it appears from the showing made in support of or against the application that it is possible to secure a fair and impartial jury, and the trial court has not abused its discretion, the order denying the motion for a change of venue will be affirmed. State v. Gray, 19 Nev. 212, 8 Pac. 456; State v. Millain, 3 Nev. 409; State v. McLane, 15 Nev. 371; People v. McCauley, 1 Cal. 383; People v. Goldenson, 76 Cal. 328, 19 Pac. 161; People v. Mahoney, 18 Cal. 180; People v. Congleton, 44 Cal. 92; Gitchell v. People, 146 Ill. 175, 33 N. E. 757, 37 Am. St. Rep. 147; Hickan v. People, 137 Ill. 75, 27 N. E. 88; State v. Williams, 115 Iowa, 97, 88 N. W. 194; State v. Edgerton, 100 Iowa, 63, 69 N. W. 280; State v. Weems, 96 Iowa, 426, 65 N. W. 387; State v. Daugherty, 63 Kan. 476, 65 Pac. 695; Dilger v. Commonwealth, 88 Ky. 550, 11 S. W. 651; Peo-aside, would it? A. Well, it would, to lay it ple v. Sammis, 3 Hun (N. Y.) 560; State v. Russell, 13 Mont. 164, 32 Pac. 854; Goldsberry v. State, 66 Neb. 312, 92 N. W. 906; Pallis v. State, 123 Ala. 12, 26 South, 339, 82 Am. St. Rep. 106; Hawes v. State, 88 Ala. 37, 7 South. 302; Rains v. State, 88 Ala. 91, 7 South. 315; Territory v. Barth, 2 Ariz. 319, 15 Pac. 673; 4 Am. & Eng. Ency. Pl. & Pr. 398. "Mr. Liechti: Q. The opinion that you now entertain, is it a fixed and firm opinion that would amount to a conviction? A. Well, no, sir; I can't say that. Q. Could you lay that opinion aside and give the defendant a fair trial? A. I think I could. Q. Then the opinion that you have at the present time amounts to nothing more than a suspicion. Is that correct? A. Well, you might call it that. Q. It would require the introduction of evidence in order to enable you to lay it aside, certainly. Q. If you were accepted as a juror, you could lay it aside to begin with, could you not? A. I think so; yes. Q. It would not require any evidence to enable you to do that, would it? A. No. sir. Mr. Liechti: We traverse the challenge. The Court: Q. You understand, of course, the difference between a qualified opinion and an, unqualified opinion? Did you ever express or did We have carefully examined the affidavits you ever entertain an unqualified opinion as in support of the motion for a change of ven- to the guilt or innocence of the defendant? ue and find nothing therein which convinces Or, to make it plainer, did your opinion deus that the lower court abused its discretion | pend on other things which might be true or |