Mount . Chapman.

the plaintiff had made any promise to pay the balance in question."

It will be seen that that case differs in one very material respect from this. There was, in that case, no promise to pay the balance; while in this it was agreed in advance that the amount should be applied as a payment upon the note. It is true, that the parties had several conferences, and made several attempts to settle the partnership business, and that they never did come to a complete settlement. The sum of three hundred and ninetysix dollars was admitted by both parties to have been received by Murphy; and the dispute between them was as to a greater amount, Chapman insisting that the credit should be for more than the three hundred and ninety-six dollars, and Murphy contending it should be for that sum and no more. But the fact that the parties had not mutually agreed as to the whole amount received by Murphy before the commencement of the suit, does not defeat the right of the defendant to insist upon a credit for the amount he can show was received by Murphy, under the partnership agreement. The fact that when the partnership was formed it was expressly agreed between the parties that the share of defendant should be applied as a credit upon the note, and that this stipulation entered into and formed a part of the partnership contract itself, would not permit Murphy to defeat this understanding by asigning the note after due. It is competent for parties to make such a stipulation; and this stipulation will be carried out, notwithstanding the general rule of law, that partners cannot sue each other at law, except upon an ascertained balance, and a promise to pay. Under our system, where legal and equitable remedies are administered by the same Court, and often in the same case, there would seem to be no objection to the enforcement of such a contract in a suit upon the note. The objection to the decree, that the interest upon the note was included with the principal, and that the whole amount was allowed to draw the same rate of interest as that stated in the note, is not well taken. This point has been expressly decided by this Court in Guy v. Franklin, (5 Cal. Rep., 416;) Emeric v. Tams, (6 Cal. Rep., 155.)

The second section of the act of March 13th, 1850, to regulate the interest on money, provides that a judgment rendered upon a contract to pay a specified rate of interest shall conform to the contract, and shall bear the interest agreed upon by the parties; and that this rate shall be specified in the judgment. The interest already accrued must constitute a part of the judgment, and, therefore, must draw the same rate of interest as the other part of the judgment. The whole judgment under the provisions of the statute must draw the same rate of interest.

Our conclusion is that the decree be modified by allowing the defendant a credit for the sum of three hundred and ninety-six

People v. Plummer.

dollars, the amount clearly established as having been received by Murphy. The defendant will be entitled to his costs on appeal.

THE PEOPLE v. PLUMMER.

It is not error in the Court, on a trial for murder, to postpone the consideration of a motion on the part of the defendant, for a change of venue, until an attempt is made to empannel a jury.

Where a motion is thus postponed, and counsel for prisoner afterwards declines, on the intimation of the Court, to renew the motion, he cannot take advantage, on appeal, of the failure of the Court to order a change of venue.

The declaration of a juror, before trial, that "the people ought to take prisoner out of jail and hang him," renders him incompetent to try the case, and where a verdict of guilty has been found by such juror, the Court should grant a new trial.

APPEAL from the District Court of the Fourteenth Judicial District, County of Nevada.

The defendant was indicted and convicted of the crime of murder, in the second degree. After the defendant was arraigned and plead, his counsel moved the Court for a change of venue. This motion was based on the ground that a fair and impartial trial could not be had in the county, owing to the prejudice and feeling existing against the defendant, and was supported by a number of affidavits. The motion was argued, and taken under advisement by the Court. The Court then adjourned until the next day. On the opening of the Court the next day an order was made overruling the motion for a change of venue "until such time as an effort shall have been made to empannel a jury, with leave of defendant's counsel to renew the motion, if it shall then appear that an impartial jury cannot be found." One hundred persons were examined as jurors, and only seven were found qualified to serve. The Court thereupon asked the counsel for the defendant if they wished to renew the motion for a change of venue, to which they replied in the negative. Other persons were summoned, and subsequently a jury was obtained.

The defendant, after the verdict of the jury, moved the Court for a new trial, and on such motion produced, and read in evidence, certain affidavits, together with the testimony of a number of witnesses, showing that two of the jurors had formed and expressed an opinion against the defendant previous to the trial. One of the jurors had said, in the presence of a number of persons, and in a public place, that "the people of Nevada ought to take Henry Plummer out of jail and hang him." Another of the jurors said "that Plummer ought to be hung, and that if he was at the Bay he would be hung before night.' Another witness

People v. Plummer.

heard this same juror (Denny) say, at a different time and place, "if Plummer got his dues, they would hang him." Witness testified that the juror, Denny, "seemed down on all men who were situated as Plummer." The Court below refused to grant a new trial, and the defendant appealed to this Court.

McConnell & Niles for Appellant.

The Court ought to have awarded a new trial upon defendant's motion.

The grounds upon which we predicate our claim to a new trial may all be reduced to three heads, viz. :

1. The verdict is not the result of a fair expression of opinion on the part of all the jurors.

2. It is contrary to the law and the evidence.

3. The Court erred in matters of law to the prejudice of the defendant.

Upon referring to the section of our criminal practice in regard to new trials the Court will observe that certain grounds are specified upon which a new trial may be granted. See § 440 Crim. Prac. Act, Wood's Dig., p. 304.

We were in some doubt at first, whether our objection to the jurors Getchel, Denny, and Jameison, came within any of the grounds there mentioned. But upon reflecting that the only mode by which we could avail ourselves of the objection, was by motion for a new trial-and that such was the universal practice elsewhere, we became convinced that though not distinctly expressed by the statute as an independent ground for a new trial-still it was by a fair construction of the law included within those grounds which are expressed.

The three jurors mentioned above, (Getchel, Denny, and Jameison,) at the time of the empannelment of the jury, each qualified himself by swearing that he had not formed or expressed an opinion as to the guilt or innocence of the defendant, and that he had no bias against him.

After the trial, however, it became known that each of them had not only formed but expressed a most decided opinion that the defendant was guilty of the crime with which he stood charged.

Having incorporated this as one of our grounds for a new trial, we filed affidavits to substantiate the fact.

In regard to the juror Getchel, we introduced the affidavits of Wm. F. Pulse and of Calvin Hall.

In regard to Denny, we introduced the affidavits of S. E. Southwick.

In regard to Jameison, the affidavit of F. M. Worsham.

Two of the accused jurors, (Getchel and Denny,) made affidavits denying the statements contained in the affidavits presented on the part of the defendant. These affidavits, together with

People v. Plummer.

one from the defendant himself, denying his previous knowledge of the sentiments of the three jurors, are incorporated in the

statement for a new trial.

But witnesses were also called to the same matters, and their evidence reduced to writing, was also adopted, and now forms part of the statement.

These witnesses were Pulse, John Avery, S. E. Southwick, Robert Smith, E. C. Dixon, and Alexander Frazier.

The evidence of these different persons is very distinct and pointed.

Pulse and Hall swear most positively-in affidavits, and as witnesses that the juror Getchel had expressed a most decided and unqualified opinion of the guilt of the defendant. According to their evidence, this just-minded juror and humane man had publicly avowed the opinion that "the people of Nevada ought to take Henry Plummer out of jail and hang him."

His friend Avery, in his oral testimony, admits that he made use of the same, or very similar expressions.

It is true, Getchel himself denies that he made such statements-but his affidavit is entitled to no greater respect than his answers to defendant's counsel, when examined by them as to his competency to serve as a juror. He then swore that he had neither formed nor expressed an opinion as to the guilt or innocence of defendant, and his affidavit is a simple rehash of the same statement.

We prove the charge against him by three witnesses: Pulse, Hall, and Avery. Had there been but one, there might have been a pretext for saying, that as there was merely the oath of one man against the oath of another, the presumption would be in favor of the juror's competency. But even in that case, we think the law in favorum vita would believe the witness, and disregard the declaration of the juror.

But here there were more witnesses than would be necessary by law to convict the juror of perjury, had he been indicted for that crime. Surely then, there were enough in a case where a human life was in actual jeopardy, to convince the Court of the truth of the charge imputed to the juror. In all of the cases to which we shall refer the Court, it will be found that the Court disregarded the oath of the impeached juror.

The juror Denny stated publicly, that "Henry Plummer," (the defendant,) "ought to be hung." And on another occasion -the day after the difficulty-he remarked that "Plummer ought to be hung, and that if he was at the Bay he would be hung be-. fore night."

This man appears to have resided in San Francisco during a period of its history which every honest citizen ought to blush to think of and to have imbibed, in that hot-bed of treason and lawless violence, all the bitter prejudice against a man accused.

People v. Plummer.

of crime which at that time prevailed there, together with an ardent admiration for their new and summary modes of procedure and punishment. Such men as he and Getchel ought not to live in a free and civilized country-much less to sit in judgment upon the lives and liberties of its citizens. With such men, to accuse, is to convict-and no evidence, however forcible, if it tended to the benefit of the prisoner, would be regarded.

As regards the competency of Jameison, we produced but a single affidavit-but we think we may leave this juror entirely out of the argument, and rely alone upon our proofs respecting Getchel and Denny.

The substance of the declarations imputed to both jurors is, that Henry Plummer ought to be hung for the act with which he stands charged.

It is true, this is not in terms an expression of an opinion of his guilt. But surely, it embodies within itself such an expression of opinion. For if a man ought to be hanged for an act, it follows that he is guilty of such act. A different construction of their language would place these jurors in the singular and unenviable position of believing and hoping that a man might be hanged, against whom no crime could be shown; in which case it would be regarded as an evidence of malice against the defendant. But whether regarded as the expression of a settled opinion upon the merits of the case, or as an effusion of hatred and ill-will towards the defendant, it would, as we shall show, be equally a good ground for setting aside the verdict, and awarding a new trial.

The expressions used by the jurors, may, with propriety, be referred to two different heads, viz. :

1. Of bias or prejudice against the defendant personally, amounting to ill-will; and,

2. A settled preconceived opinion as to the merits of the case. The expressions attributed to the jurors are precisely such as we would expect from a man who stood to the defendant in the attitude of a deadly foe, and who, in the climax of his hatred, is willing and anxious to see him sacrificed by means of a judicial murder, or a mob-law murder, without the slightest regard to the question of his guilt or innocence.

The law permits no such malicious sentiments to fill the breasts of those to whose discretion the lives of our people are confided. In the case of The State v. Hopkins, 1 Bay's R., 372, the foreman of the jury had said that he "came from home to hang every damned counterfeiting rascal," and that he "was determined to hang the prisoner, at all events." This was held to be a sufficient ground for a new trial.

Graham & Waterman, in their work on New Trials, speaking of that case, say that "it is one of the clearest cases of unfitness of the juror on record." 2 Gra. & Wat. on N. T., 383.