
    STATE v. RILEY.
    No. 2193.
    Decided May 20, 1911.
    On application for Rehearing June 18, 1912
    (126 Pac. 294).
    1. Jury — Mode op Impaneling — Challenges. Under Comp. Laws 1907, sec. 4826, providing that before a juror is called defendant must be informed that if he intends to challenge an individual juror he must do so when the juror appears and before he is sworn, and section 4828, providing that the challenge must be tafeen when the juror appears and before he is sworn to try the ease, though the court may for cause permit it to be taken after the juror is sworn and before the jury is completed, after the challenges for cause to the first twelve jurors are passed on, before others are called to take the places of those excused for cause, right to peremptorily challenge those remaining in the jury box must be exercised or waived by the state and defendant. (Page 229.)
    2. Criminal Law — Change oe Venue — Impossibility oe Pair Trial — Discretion. Under Comp. Laws 1907, sec. 4799, providing that a criminal action may be removed to another county on application of defendant, on the ground that a fair and impartial trial cannot be had in the county where the action is pending, section 4800, requiring the application to be supported by affidavit, and section 4802, providing that if the court is satisfied that the representations of the applicant are true, it must order the removal, the application is addressed to the sound discretion of the court, and, unless it clearly appears that it abused its discretion in denying the change, that it ought to have been satisfied from the showing that a fair and impartial trial could not be had in the county where the ease was pending, its action will not be disturbed. Page 230.)
    3. Criminal Law — Trial—Taking Exhibits to Jury Room. Though Comp. Laws 1907, sec. 4881, provides merely that the jury, on retiring for deliberation, may take certain papers with them, they may, with permission of the court, take with them exhibits other than papers. (Page 235.)
    4. Criminal Law — Appeal—Harmless Error — Deliberation oe Jury. That a revolver and overalls, properly admitted in evidence, were, on retirement of the jury, taken to the jury room without permission or knowledge of the court was not prejudicial. (Page 238.)
    5. Criminal Law — Trial—Misconduct of Juror — Remark in Jury Room. The remark of one of the jurors, relative to a revolver properly admitted in evidence, but taken to' the jury room without the permission of the court, that it “was a murderous loking instrument, and that it showed conclusively the intent” • of defendant, did not constitute misconduct. (Page 239.)
    ON APPLICATION FOR REHEARING.
    6. Criminal Law — Appeal—Review—Exceptions. An exception to the whole of an instruction, when part of it contains a correct statement of the law, is not good. (Page 240.)
    
      7. Cbiminaí Law — Appear—Assignments oe Error — Abandonment. An assignment of error neither referred to in appellant’s brief, nor mentioned in his oral argument, will he treated as waived. (Page 242.)
    8. Criminar Law — Appear—Rehearing—Exceptions. A rehearing in a capital case, on the ground of error in an instruction, will not he denied because of insufficiency of the exception to the part of the instruction complained of. (Page 242.)
    9. Criminar Law — Appeal—Rehearing—Abandoned Assignments oe Error. Though to the rule that ordinarily a rehearing will not he granted to review a question presented hy an assignment of error not urged or considered on. the hearing, especially where it was intentionally abandoned, exception is made when it is apparent that denial thereof will wort manifest injustice, rehearing for considering an assignment, shown hy the record to have been deliberately and intentionally abandoned, to an instruction, erroneous' because of undertaking to direct the jury how they should consider the question of recommending life imprisonment in a murder case, will not be granted on the bare possibility that on a retrial the jury might, notwithstanding the absence of any mitigating fact or circumstance^ make such a recommendation, and the court might possibly follow it. (Page 242.)
    Appeal from District Court, Third District; Hon. T. ID. Lewis, Judge.
    Thomas Riley was convicted of murder and he appeals.
    AeeirMeb.
    
      James D. Pardee for appellant.
    
      A. R. Barnes, Attorney-General, and JE. V. Higgins, and Geo. 0. Buckle, Assistant Attomeys-General, for the State.
    
      
       People v. Callahan, 4 Utah, 49, 6 Pac. 49.
    
    
      
       State v. Carrington, 15 Utah, 480, 50 Pac. 526; State v. Haworth, 24 Utah, 398, 68 Pac. 155.
    
    
      
       State v. Haworth, 24 Utah, 399, 68 Pac. 155; State v. King, 24 Utah, 482, 68 Pac. 418, 91 Am. St Rep. 808; State v. Campbell, 25 Utah, 342, 71 Pac. 529.
    
    
      
       State v. Campbell, 25 Utah, 342, 71 Pac. 529.
    
   McCARTT, J.

The defendant, Thomas Riley, was informed against in the district court of Salt Late County for the murder of one George W. Fassell on March 26, 1910. A trial was had, and on June 23, 1910, the defendant was found guilty as charged, and was sentenced, July 8, 1910, to be executed. From the judgment rendered, the defendant has appealed to this court.

The following terse and lucid statement of the facts leading up to and surrounding the commission of the homicide is taken from the able and exhaustive brief filed by defendant’s counsel in the case.

“The evidence showed that the defendant, Thomas Riley, who had previously given his name as James Hayes, with one Henry Thorne and another man by the name of ‘Cur-ley,’ on the evening of March 26, 1910, had gone to the store of George W. Fassell on Fourth South Street, between Sixth and Seventh East streets, in Salt Lake City, Htah, and had entered there for the purpose of holding up the occupants of the store and of committing robbery. The three men entered the store, Thorne going in first, and with his revolver commanded of Mr. Jacobson, one of the clerks there, that he throw up his hands. The defendant, Riley, followed, and, taking his position near the center of the store, commanded Faissell to throw up his hands.. The other man, ‘Curley,’ stayed in the doorway, and when trouble began he left the place, and has never been apprehended by the authorities. Thorne forced Jacobson back into one comer of th© store-room ; and while Riley was covering Fassell with his revolver, and while Fassell had his arms in air, Thorne camie to him and told him to stand back in the comer where Jacobson was. Fassell had his eyes on Riley, and, not paying much attention to Thorne, Thorne jabbed him in the side of the ribs and while urging him to get back his revolver was discharged accidentally or otherwise, and Fassell fell to the floor mortally wounded. As Fassell fell to the floor, Thome stepped around to the cash register, took what money he could, .and while he was doing this Jacobson dodged out of the back door of the store, and Riley, then seeing that Jacobson had gone, rushed1 out of the front door, soon after followed by Thorne. The two made their way uptown, went to the Angeles rooming house, and were arrested. The men were taken to the police station, questioned somewhat that evening’ by the officers, and tbe need? morning Tbome made a written confession to tbe chief of police, and Riley, after being questioned for some considerable time by tbe chief of police .and police officers, confessed that be participated in tbe killing as above stated.”

Tbe assignment of error first discussed by appellant relates to the manner in which tbe jury was impaneled. Twelve jurors were first called and sworn on their voir dire, and examined as to their qualifications to serve as jurors. Some of these jurors were excused for cause. Tbe defendant then demanded that before be should be required to exercise peremptory challenges as to tbe jurors remaining in tbe jury box other jurors be called to taka tbe place of those who- were excused. Tbe court ruled that both tbe state and defendant must exercise or waive their right to peremptorily challenge tbe jurors remaining -in tbe jury box, and those not- challenged should be sworn to try the case, before any additional jurors should be called to take the place of those who were challenged and excused. Of the twelve jurors first drawn, eleven were either excused for cause, or challenged peremptorily, and one was accepted and sworn to try the cause. This process was repeated until the panel was completed and accepted to try the cause:. Counsel for appellant contends that this was error.

Section 4826, Comp-. Laws Utah 1907, provides that “before a juror is called, the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror, he must do so when the juror appears and before ha is sworn.” Section 4828 provides that “it must be taken when the juror appears and before he is sworn to try the cause; but the court may for cause permit it to be taken after the juror is sworn and before the jury is completed.” These provisions were taken from the California Penal Code (4 Kerr’s Cyc. Code, secs. 1066, 1068) ; and the Supreme Court- of that state has repeatedly held that the method pursued in the impaneling of the jury in this ■casa is, under the foregoing provisions of the statute, the proper one to follow. (People v. Scroggins, 37 Cal. 676; People v. Russell, 46 Cal. 121; People v. Riley, 65 Cal. 107, 3 Pac. 413; People v. Hickman, 113 Cal. 80, 45 Pac. 175.) We also invite attention to People v. Lee, 1 Cal. App. 169, 81 Pac. 969, and to 24 Cyo. 250.

Tbis question was before this court in People v. Callahan, 4 Utah, 49, 6 Pac. 49, and Mr. Justice Emerson, speaking* for the court, said:

“The last point made by appellant is that the formation of the trial jury in the case was contrary to law. The court followed the rule laid down, under a statute from which ours was-copied, by the Supreme Court of California in People v. Scroggins, . . . and which was approved in People v. Russell. . . . Upon, the authority of these cases, as well as from the reason drawn from the statute, no error was committed in forming the trial jury for this case.”

On the authority of these cases, which we think enunciate the correct rule of impaneling a jury under the provisions of the statute herein referred to, and which is fully supported by the authorities above cited, this assignment of error is overruled.

It is alleged in the next assignment of error that the court erred in overruling defendant’s motion for a change of venue. The motion was based upon an affidavit made by defendant, in which hei alleged that he believed he could not have a fair and impartial trial in Salt Lake County because of the prejudice existing among the people, residents of said county, against him. No counter affidavits were filed. The record shows that the trial was commenced on June! 13, 1910. At the time the case was called for trial, the defendant, being present in court, his- counsel announced that he was ready for trial, and the trial proceeded without any request having been made, by motion or otherwise, for a change of venue. On the first day of tbei trial, several jurors were examined, and one juror was accepted and sworn to try the case. The facts and circumstances leading up> to and which prompted the making and filing of the affidavit and motion for a change of venue are about as follows:

Upon tbe convening of the court on the second day of the trial (June 14, 1910’), the court called attention of counsel for the defense to a certain article appearing in the Uerald-Republican of that date, a daily newspaper published in Salt Lake Oity, in which was a brief summary of the facts and circumstances leading up to and surrounding the commission of the crime, including the written confession of Thorne, in which the defendant was implicated as one of the parties engaged in the perpetration of the robbery at the time Fas-sell was killed. On being shown the article, counsel immediately moved the court for a change of venue, and in support of the motion presented the defendant’s affidavit, in which it is alleged that at the time the crime in question was-eommitted, and for several days thereafter, “the public journals of Salt Lake City published full and detailed accounts of the tragedy alleged and of the parties concerned therein, alleged to have been the parties who perpetrated the alleged crime, . . . and made such strong statements of the evidence and all matters . . . connected therewith that public opinion formed very strongly against this defendant, and considerable excitement was created in the public mind at that time on account of the transaction as alleged in the newspapers, which excitement and public opinion ranged so high that the county officials having this defendant in custody were compelled to remove him from the county jail to the Utah State Prison to prevent him being a victim of mob violence. . . . (Reference is here made to the newspaper article mentioned, a copy of which is attached to the affidavit and made a part thereof.) That he has reason to believe, and does believe, that the said Herald-Republican has a large circulation and is 'extensively read throughout Salt Lake Cbunty, and that the article herein referred to and made a part hereof has and will mold public opinion as to render a fair and impartial trial impossible in Salt Lake County. Affiant further believes that by reason of the sentiment heretofore created and revived and extended by the article hereto attached justice cannot be had in Salt Lake County. . .

Tie article referred to, so far as material to tie determination of tie question under consideration, is as follows:

“James Hayes, ciarged witi murder in tie first degree for tie killing of George W. Fassell tie nigit of Marci 26ti, was brought before Judge T. D. Lewis in tie district court' for trial yesterday morning. . . . Counsel for tie prisoner announced at tie opening of tie court that Eiley wisied to give iis true name of Tiomas Eiley, and on order of tie court tie alias of James Hayes was changed. . . . Eiley was not handcuffed, although Deputy Sheriffs Andrew Smith, Jr., and Eiciard Eddington took turns sitting‘beside him. . . . Eiley is ciarged as being one of tie three men who held up tie grocery store at tie time George W. Fassell was killed, but tie state does not expect to show that he was tie man who fired tie fatal shot. Henry Thorne:, who was arrested witi Eiley, has confessed that he fired tie shot which killed Fassell and this confession implicated Eiley as tie man who was witi him at tie time. Another man known as ‘Curley,’ who made up tie trio- of robbers escaped and to date has not been captured. Tie confession of Thorne, which was made tie day after tie murder, will be paramount in tie trial, this confession reading as follows: ‘Salt Lake City, Utáh, Marci 27, 1910. Confession of Harry Thom© of tie murder of G. W. Fassell on tie nigit of Marci 26, 1910. Hayes and myself and a. man named Curley, whom I had not met before, left tie room about 7:30 p-. m., intending to hold up tie first place that looked good. We went into tie store, which you say is Fassell’s. Hayes stood about half way along the counter, facing tie butcher. We told them to hold up their hands. Tie butcher held iis up high, but Fassell did not hold iis up high enough, or fast enough, and as I was trying to get them together near tie north end of tie counter, tie butcher ran through the back, and I put the gun against Fassell’s side to hurry him up-, and it went; off. After shooting Fassell I took some money- out of tie cash register. Curley had taken some money before: I got to it. Tie pencil sketch of tie store signed by me is about correct. [Signed] Harry Thome.’ Witnesses: S. M. Barlow, J. J. Roberts, H. F. Wilson, R. F. Golding, George Chase. The murder of Fassell was the chief topic of conversation for'many days, because of the general popularity of the young groeeryman, who, at the time of his death, was secretary of the Retail Merchants’ Association and1 also prominent in the Phillips Congregational Church. .He was engaged to marry Miss Bessie Worthen of 566 East Tenth South Street, and also had a wide circle of friends and acquaintances. Riley and Thome were arrested at the Angeles rooming house within a half hour after the murder by Detectives George Sheets, Chase and Schultz, and S. M. Barlow, ■chief of police. The detectives had been warned that the gang of criminals had come from Ogden to Salt Lake and were quartered at the rooming house, and earlier in the evening they had called there for the purpose of taking them in on general principles and getting them moved out of town ■on floaters. Not finding their men, the detectives returned to the police station with the intention of arresting the gang later that night, and they had only reached the station when a telephone call came, informing them of the holdup and murder. Then they retraced their steps and got their mien.”

Counsel for defendant strenuously insists that the showing thus made entitled defendant to a change of venue. Section 4799, Comp. Laws Utah 1907, provides that “a¡ criminal action may be removed from the court in which it is pending on application of the defendant, upon the ground that a fair and impartial trial cannot be had in, the county where the action is pending.” Section 4800- provides that the application must be supported by an affidavit or affidavits. Section 48.02 provides that, “if the court is' satisfied that the representations of the applicant are true, an order must be made for the removal of the action to the district court of a county free from such objection.” In the case of State v. Carring-ton, 15 Utah, 480, 50 Pac. 526, this court, in harmony with the great weight of authority, held that the exercise of the power granted by the foregoing provisions of the statute is within the sound discretion of the trial court, and that a •denial of the application for a change of venue will not be reviewed, unless it is made to appear that suck discretion kas been abused. Tke doctrine announced1 in tkat ease was reaffirmed in State v. Haworth, 24 Utah, 398, 68 Pac. 155. Tkese provisions of our statute were taken from the Penal Code of California, and tke Supreme Court of that state kas frequently held tkat an application for a change of venue is addressed -to tke sound discretion of tke court; and, unless it clearly appears tkat tke court kas abused its discretion, its ruling granting or denying a change of venue will not be disturbed. (People v. Fisher, 6 Cal. 155; People v. Mahoney, 18 Cal. 181; People v. Graham, 21 Cal. 261; People v. Congleton, 44 Cal. 92; People v. Goldensen, 76 Cal. 328, 19 Pac. 161; People v. Vincent, 95 Cal. 425, 30 Pac. 581.)

We also invite attention to tke following authorities, which illustrate and support this doctrine: State v. Pomeroy, 30 Ore. 16, 46 Pac. 797; State v. Armstrong, 43 Ore. 207, 73 Pac. 1022; Pearce v. Territory, 11 Okl. 438, 68 Pac. 504; State v. Parmenter, 70 Kan. 513, 79 Pac. 123; State v. Champoux, 33 Wash. 339, 74 Pac. 557; 12 Cyc. 243.

Section 4802 of tke Code provides tkat, “if the court is satisfied tkat tke representations of tke applicant are true,” tke application for a change of venue must be granted. Tke important question therefore is: Ought the court to have been satisfied from tke showing made tkat tke defendant could not obtain a fair and impartial trial in Salt Lake County ? Tke court, in commenting and passing on the; motion, said: “I do not think there is any ground for a change of venue. Tke examination of tke jurors did not disclose suck feeling as would warrant a change of venue; . . . Some of them were disqualified by reason of having read tke paper; but none of them indicated any hostility to- tke defendant. . . . There is no indication of public feeling in tke examination of tke jurors, and’ tke article in this morning’s paper would not tend to arouse public feeling in tke sense tkat it would be unsafe for tke defendant to go to trial.” Tke views of tke court thus expressed respecting tke effect, if any, tkat tke newspaper* article had on tke proceedings and tke general state of public opinion in Salt Lake County toward tbe defendant are fully supported by tbe record. Of all tbe jurors examined, only seven, so far as shown by tbe record, read tbe article' in question, and one of tbe seven' was accepted and sworn to try tbe case. Another of tbe jurors, who bad read tbe article, was passed for cause both by tbe prosecution and defense, and was challenged peremptorily by the state. In fact, after tbe second da,y of tbe trial, neb tber tbe prosecution nor tbe defense seemed to regard tbe article mentioned as an element or factor in tbe case. Some of tbe jurors were not even interrogated in reference to tbe article. And we: think tbe examination of tbe jurors generally shows conclusively that tbe public sentiment in Salt Lake County towards tbe defendant was not such as would tend to prevent him from having a fair and impartial trial. Tbe •court, at tbe time of tbe motion for a, change of venue, stated that if, upon further examination of tbe jurors, it should appear that tbe defendant was prejudiced by tbe publication ■of the newspaper article mentioned, leave would be granted tbe defendant to renew bis motion for a change of venue. This tbe defendant did not do. He went to trial without further objection, and submitted tbe case to tbe jury without having exhausted bis peremptory challenges. In fact, we think it clearly appears from tbe record that no greater difficulty was experienced in obtaining a jury than is usually met with in this class of cases. We are therefore of the opinion that tbe court did not err in denying tbe motion for a change of venue.

Tbe only remaining question presented by tbe appeal is that raised by tbe motion for a new trial. This motion was based on tbe alleged misconduct of tbe jury in receiving “evidence out of court other than that resulting from a view of tbe premises or any communication, document, or paper referring to tbe casia” It appears that a revolver and pair of overalls, which were taken from tbe possession of defendant and bis associates at tbe time they were arrested, were introduced in evidence. After tbe cause was ■submitted and tbe jury bad retired to consider their verdict, tbe bailiff, who bad been sworn to take charge of tbe jury during their deliberations, carried to tbe jury room, and left with the jury the revolver and overalls mentioned. It was shown by the affidavit of one of the jurymen that, while he and his fellow jurors were deliberating oh the case, one of them picked up- the revolver and said “that it was a murderous looking instrument, and that it showed conclusively the intent of Riley.” Section 4881, Comp-. Laws Utah 1901, provides that, “upon retiring for deliberation, the jury may take with them -all papers, except depositions, which shall have been received as evidence in the case, o-r copies of such public records or private documents given in evidence as ought not, in the -opinion of the.- court, to- be taken from the-person having them in possession. They may also- take with them the written instructions given and notes of the testimony or other proceedings of the trial, taken by themselves or any of them, but none taken by any other person.” It is- contended on behalf of defendant that, as the foregoing provisions of the statute do not expressly include exhibits other than papers and writings, there is no ■ authority of law for exhibits of the character under consideration to be taken to- the jury room and used by the jury after the cause has been submitted to them. The general rule is that, in the absence of any statute on the subject, the matter of allowing the jury to- take with them exhibits which have been admitted in evidence when they retire to- their room for deliberation is largely left to the discretion of the- court. In 1 Bisho-p’s New Grim. Proc., sec. 982, the author says:

“By permission (of court) they may take the indictment or other records which present the issues to be tried, the instructions of the court when in writing, the duly identified instruments or1 relics of the crime used as exhibits at the trial.”

(12 Ency. Pl. & Pr. 593; 2 Thompson on Trials, secs. 2574-2597; Longworth v. Connelly, 14 Neb. 340, 15 N. W. 737, 45 Am. Rep. 117; Russell v. State, 66 Neb. 497, 92 N. W. 751.)

And it has been held in jurisdictions having statutes similar to our own on this subject that the matter of permitting the jury to take with them on retiring to- consider their ver-diet exhibits which hare been admitted'in evidence, other than those mentioned in the statute, is within the discretion of the court. The provisions of our statute relating to the subject were copied from the Penal Code of California.; and the Supreme Cburt of that state, in construing the provisions of the Code from which our statute was taken, held, in People v. Cochran, 61 Cal. 548, that the sending of 'exhibits to the jury room or withholding them is within the discretion of the court. In the course of the opinion, the court said:

“The statute is not mandatory. It directs the court to allow the jury to take with them any papers received as evidence which may he of service to them in making up their verdict; hut none can he taken without permission of the court. The matter is therefore left to the sound discretion of the court, and its action is not revisable, unless there has been an abuse of discretion.”

The State of Washington has a similar statute. (2 Ballinger’s Ann. Codes & St., see. 5004.) In State v. Webster, 21 Wash. 63, 57 Pac. 361, the jury, under the direction of the court, took with them on retiring to their room for deliberation a bottle of whisky and a bottle containing a drug which had been admitted in evidence; This was assigned as error. The court, in disposing of the question, said:

“But the objection of counsel is met by the very well considered case of Doctor Jack v. Territory, 2 Wash. T. 101, 3 Pac. 832, in which the above section, which has been the existing law of the state and territory for many years, is construed. There it was held that exhibits properly introduced in evidence and explanatory of the evidence of the witnesses might be taken to the jury room (in that case, which was a conviction for murder in the first degree, a hat and coat, which were exhibits in the case, were taken to the jury room); and such has been the practice and accepted construction of this section since then”—

Citing with approval People v. Cochran, supra.

The statutes of Minnesota contain a provision almost identical with section 4881 of our own Code (volume 2, Stat. Minn. 1894, sec. 5375), and in the case of State v. Olsen, 103 N. W. 727, it was held tbat the trial court did1 not err in permitting the jury to take with them when they retired for deliberation a bottle of “tonto,” which had been admitted in evidence. The court said:

“The bottle of ‘tonto,’ which the chief of police purchased, was properly received in evidence and made an exhibit in the case. The defendant objected to the bottle being taken by the jury on retiring. The learned trial court treated it as an exhibit, and applied to it the same rule as to papers, under section 5375, General Statutes 1894, in any case, but told the jury that its contents were not to be tasted, but simply carried to the jury room for inspection. As an exhibit, it was properly received in evidence, and within the discretion of the court submitted to the jury; and there appears to be nothing on which to furnish a foundation for the claim that injury had been done or the discretion of the court abused by this procedure.”

This same court reaffirmed, tbe doctrine here announced iu the case of State v. Lindquist, 110 Minn. 12, 124 N. W. 215.

The Montana Statutes contain a similar provision (volume 2, Code of Mont. 1895, sec. 2122), and in Territory v. Doyle, 7 Mont. 245, .14 Pac, 671, it was held not to be error for thel jury to take with them on retiring to their room for deliberation an account book belonging to the accused. (State v. Allen, 23 Mont. 121, 57 Pac. 725; People v. Mahoney, 77 Cal. 529, 20 Pac. 73; People v. Hower, 151 Cal. 638, 91 Pac. 507; Gresser v. State (Tex. Or. App.), 40 S. W. 595; Spelling, New Tr. & App. Pr., sec. 162; 12 Oyc. 677.)

The following cases also discuss and illustrate this question: State v. Wallace, 78 Conn. 677, 63 Atl. 448; Adams v. State, 93 Ga. 166, 18 S. E. 553; Taylor v. Commonwealth, 90 Va. 109, 17 S. E. 812; State v. McCafferty, 63 Me. 223; Powell v. State, 61 Miss. 319; Phillips v. State, 156 Ala. 140, 47 South. 245; People v. Gallagher, 75 App. Div. 39, 78 N. T. Supp. 5; People v. Hughson, 154 N. Y. 153, 47 N. E. 1092; Martin v. Commonwealth (Ky.), 100 S. W. 872; State v. Pepoon, 62 Wash. 635, 114 Pac. 449.

In this case, however, it seems that the exhibits were taken to the jury room by the bailiff, without the consent or knowledge of the court. While this was an irregularity, yet we fail to see in what way the defendant could have been prejudiced thereby. The revolver and overalls were properly admitted in evidence, and were seen by the jury during the trial. It was not shown, nor can we, under the circumstances, presume, that the jury made any improper use of the articles in the jury room. Nor is it contended that the jury made, or could have made, discovery of any fact or facts by the inspection of the articles in the jury room other than those disclosed by them at the time they were admitted in evidence.

The remarks made by one of the jurors, hereinbefore referred to, respecting his impressions of the revolver, and as to what it showed, in no sense constituted misconduct. To illustrate: Suppose the articles mentioned had not been taken to the jury room, and it were shown that one or more of the jurors, during the deliberations of the jury, had stated that the revolver in question “was a murderous looking instrument, and that it showed conclusively the intent” of the defendant, we take it that no lawyer would seriously contend that such statements would constitute misconduct on the part of the jurors making them.

Judgment affirmed.

FEIGN, O, J., concurs.

STEAUP, J.

(concurring).

The exhibits were taken to the jury room by the bailiff, without the consent or direction of the court. They were therefore improperly taken to the jury room. That is conceded. Whether the court, under the statute, had the power to direct or permit them to be taken need not be decided; for the court gave no such direction or permission. The exhibits having been improperly taken to the jury room, the only question here to be decided in that connection is that of prejudice. Let it be said, as does counsel for the defendant, that from the committed error or wrongful conduct of the bailiff prejudice will be presumed, yet the character of the evidence and the' undisputed facts established by it are such that upon the record it is manifest that the defendant could not have been and was not prejudiced by the wrongful taking of the exhibits to the jury room. I can see no possible use which the jury might or could have made of them, or in connection with what question, fact, or circumstance they could have considered them, to the defendant’s prejudice. I therefore concur in the affirmance of the judgment.

ON. APPLICATION POR REHEARING.

MjcCAETY, J.

Appellant has filed a petition for rehearing. The principal ground upon which he seeks to have the cause further reviewed and considered by this court is that the trial court committed error prejudicial to his rights in its charge to the jury on the question of recommendation.

Comp. Laws 1907, sec. 4162, so fax as material here, provides :

“Every person guilty of murder'in tlie first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the state prison for life, in the discretion of the court.”

The court, in its eighth instruction, charged the jury:

“Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing, or committed ip the perpetration of or attempt to perpetrate any arson, rape, burglary, or robbery, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him that is killed, or perpetrated by any act greatly dangerous to the lives of others, and1 evidencing a depraved mind, regardless of human life, is murder in the first degree. And under the law of this state every person guilty of murder in the first degree shall suffer death, or upon the recommendation of the jury, may be imprisoned at hard labor in the state prison for life, in the discretion of the court. And, if you. should find the defendant guilty of murder in the first degree, you should then consider the question of making such recommendation, and it will be your duty to consider such question in the same manner as any other question submitted to you, giving to it your careful and conscientious consideration; and, should you decide to make such recommendation, you will include it in your verdict. The object ■of the law in punishing a person guilty of crime is not vengeance; the purpose is to deter the person who has broken the law from a repetition of his act, and also to deter other persons from committing similar breaches of the law; and if in this case your verdict is guilty, then in determining whether or not you shall include such recommendation in your verdict you should take into consideration all of the circumstances disclosed by the evidence, and all the evidence in the case, including the evidence on behalf of the defendant, and also the object and purpose of the law imposing punishment, and it should bei the respxlt of your deliberate consideration.”

Appellant excepted to this instruction, as follows: “Defendant excepts to the whole of No. 8 of the court’s charge.” This is not a good exception. In fact, it leaves appellant in the same position as he would be, in if he had not made any attempt to except to the instruction. The rule is well established in this state that a general exception to an entire instruction, which contains two or more independent propositions, one or more of which contains a correct statement of the law, cannot be considered. (State v. Haworth,, 24 Utah, 399, 68 Pac. 155; State v. King, 24 Utah, 482, 68 Pac. 418, 91 Am. St. Rep. 808; State v. Campbell, 25 Utah, 342, 11 Pac. 529.) The first part of the instruction under consideration contains a correct statement of the law; therefore the instruction is not vulnerable to a general exception, such as the one in question.

Appellant assigned the giving of the instruction as error. His counsel, however, neither referred to this assignment of error in his brief, nor mentioned it in his oral argument before this court. We therefore, in harmony with the well-established rule in this, as well as in many other, jurisdictions, treated tbe assignment as waived by appellant, and did not refer to it in tbe opinion affirming tbe judgment. (3 Cye. 388; 3 Ency. L. & F. 605.) In tbe case of State v. Campbell, supra, this court, in an opinion written by Mr. Justice Bartcb, said:

“That certain portions of the charge are manifestly erroneous, must he conceded, and why counsel persist in taking merely wholesale exceptions in such cases, when we have repeatedly held that we cannot and will not consider them, it is difficult to understand. The reasons why the specific objectionable matter should be pointed out to the court before the retiring of the jury are so patent, and have been so often mentioned that we do not deem it necessary again to refer to them. In accordance with the settled rule in this jurisdiction, we must refuse to consider any of the assignments of error relating to the charge; and, as counsel failed to discuss any of their assignments relating to the refusal of the court to charge as requested by the defendant, we must regard them as abandoned, although some of the requests stated the law correctly, and were applicable to the facts in the case.”

After tbe ease was argued and submitted, tbe decision of this court in tbe case of State v. Thorne, 39 Utah, 208, 111 Fac. 58, was announced. In tbat case tbe appellant was tried for tbe same crime for wbicb appellant bere stands convicted. Tbe jury there, as bere, returned a verdict of first-degree murder, without recommendation. In tbe Tborne Case an instruction identically tbe same as tbe one under consideration was given. No exception was taken to tbe instruction; but it was assigned as error and discussed by Thome?s counsel in bis printed brief and in bis oral argument before this court. No exception having been taken, Tborne was not, as a matter of right, entitled to have tbe instruction considered on appeal. It being a capital case, this court felt constrained to give him tbe same benefit of tbe assignment of error (tbe Attorney-General consenting thereto) in wbicb be challenged tbe instruction as be would be entitled to if be bad taken a proper exception, and held tbat the giving of the instruction was prejudicial error. Appellant now cites and relies on tbe decision in tbat case as authority in support of bis petition for a rehearing.

This being a capital case, we are not disposed to deny a rebearing on the ground of appellant’s failure to take a proper exception to tbe instruction mentioned. We shall therefore proceed to consider the application the same as we would do if a proper exception had been taken.

The Attorney-General does not concede that the trial court committed error in giving the instruction, but, in view that the same instruction was, in the Thome Case, held erroneous, he does not resist the granting of appellant’s application for a rehearing in this. When our attention was first called to the petition, we inclined to the opinion that, under the rule announced in the Thome Case, appellant is entitled to a rehearing, and that ultimately a new trial should be granted. Upon reflection we are satisfied that the granting or denying of appellant’s petition would not affect or in any way unsettle any rule or principle of law laid down by this court in the Thome Case. In that case as we have stated, while the defendant did not except to the charge of the court on the question of recommendation, he nevertheless assigned it as error, and his counsel discussed the question in his printed brief and in his oral argument to the court; whereas in this case the instruction was assigned ,as error, but it was not argued by counsel for appellant in his printed brief, nor referred to by him in his oral argument. Appellant assigned twelve errors, but three only were argued by his counsel. The first error discussed related to the manner in which the jury was impaneled, the second to the overruling of appellant’s motion for a change of venue, and the third to the overruling of his motion for a new trial. In the closing paragraph of his brief, counsel for appellant says:

“For the reasons set forth in this brief (the three grounds above mentioned), it seems, therefore, that the court- erred in impaneling the jury, in overruling defendant’s motion for a change of venue, and in overruling defendant’s motion for a new trial, based on the ground of the jury having received evidence out of court, and on these .grounds the defendant prays for a new trial and a change of venwe.” (Italics ours.)

It is not claimed that the omission to' argue the assignment of error in which the instruction referred1 to is assailed was due to any oversight or inadvertence on the part of appellant’s counsel, but, on the contrary, the closing part of his brief, which we have quoted, and the petition for a rehearing show that counsel did not deem the assignment of sufficient importance to justify discussion. In the petition for a rehearing, it is said:

“Defendant further requests that he be granted a rehearing in this matter, so that he may present to> the court the question as to the proper instruction of the jury upon the question of recommendation of mercy. The defendant excepted to the instruction of the court on this question and assigned it as one of the errors', but deeming that enough points had been argued to the court for a reversal of the decision, did not argue'” this assignment of error. It thus clearly appears that the assignment of error was intentionally abandoned. An application for a. rehearing is addressed to the discretion of the court; and, as a general rule, a rehearing will not be granted for the purpose of reviewing a question presented by an assignment of error which was not urged or considered on the hearing (18 Enc. PI. & Pr., pp. 39, 40), and especially where, as here^ the assignment was intentionally abandoned. There is, however, an exception to this general rule. When it is apparent that a denial of the application would work manifest injustice, the court, in such cases, will ordinarily grant a rehearing. But there is nothing in appellant’s petition or, for that matter, in the record that even suggests that it comes within the exception. Appellant was represented by able counsel, and his defense was ably and vigorously conducted, both before the trial court and on appeal. No claim is made that the judgment or penalty pronounced in this case is,.under the law and the admitted facts, excessive or in any respect disproportionate to the crime for which appellant stands convicted. It is admitted that the undisputed evidence shows that appellant, Thorne, and Curley went to the store of George Fassell “for the purpose of holding up the occupants and committing robbery; . . . that while Kiley (appellant) was coy ©ring Fassell with bis revolver, and while Fassell had his arms in the air, Thorne came to him, told him to stand back in the comer; . . . that Fassell had his eyes on Kiley, and, not paying much attention to Thome, Thorne jabbed him in the side of the libs, and while urging him to get back his revolver was discharged accidentally or otherwise, and Fassell fell to the floor mortally wounded.” It is further admitted that appellant confessed 'to the officers that “he participated in the killing as above stated.” The admitted facts, therefore, show that appellant is guilty of first-degree murder. While Fassell had his “hands up” and was complying with the demands made of him by .appellant and his cohighwaymen, and was entirely helpless respecting any resistance on his part, he was ruthlessly murdered by these robbers. The record does not disclose a single fact or circumstance attending the commission of this crime that in .any way tends to palliate, its atrooiousness; but, on the contrary, the admitted facts; show that the crime was a most aggravated one.

As we have pointed out, the court charged the jury on the-question of recommendation in part as follows:

“It will be your duty to consider such question in the same manner as any other question submitted to you. . . . You should take into consideration all the circumstances disclosed by the evidence in the case, including the evidence-on behalf of the defendant, and also' the object and purpose of the law in imposing punishment, and it should be the result of your deliberate consideration” — the natural thing fora jury composed of unbiased, conscientious, intelligent men to do. In the Thorne Case we held the giving of the instruction was error, because it restricted the discretionary power conferred on the jury by statute, to- make such recommendation, regardless of the at-rociousness of the crime committed and the absence of any mitigating fact or circumstance in the case. The Chief Justice, however, in his septate opining concurring in the reversal of the judgment, in that case-said : .

“I desire to state, however, that if the only error complained of was the one relating to the giving of the charge concerning the recommendation I should not, in view of all the facts and circumstances of the case, concur in a reversal of the judgment upon that cause alone.”

Tbe question, now presented is: Ought this court to grant a rehearing for the purpose of considering an assignment of error which the record shows was deliberately and intentionally abandoned, and to ultimately grant a new trial on the ground that there is a bare possibility that on a retrial the jury might, notwithstanding the absence of any mitigating fact or circumstance in the case, make a recommendation that ■ the defendant be confined in the state prison for life, and that the court might possibly follow such recommendation in pronouncing judgment ?

We are clearly of the opinion that the reasons advanced by appellant in his petition are wholly insufficient to warrant this court in granting a rehearing. The application is therefore overruled and denied.

NRICK, O. J.

I concur. While I fully concurred in the conclusion reached in the Thorne Case, that the jury should be left entirely free and without any restrictions from the court in arriving at a conclusion whether to mate a recommendation pursuant to section 4162, referred to by Mr. Justice McCarty, yet, in view of all the facts and circumstances of this case, I am firmly convinced that by what the court said in the instruction objected to it did not and could not have prejudiced the rights of the appellant. The jury, of course, had a right to decline to make any recommendation in this case; and, unless there is something in the instruction which might have induced them to decline to make a recommendation, appellant is not injured, although the court in the instruction made! some observations it should not have made. I can see nothing in the instruction which, in view of all the facts and circumstances of this case, would lead reasonable men to conclude that the jury in any way was, or could havei been, influenced in declining to make a recommendation. In view of these facts, it would be useless to grant a rehearing in this case.

STRAIN?, J., concurs in the result, denying a rehearing.  