
    (88 South. 533)
    No. 24304.
    STATE v. BIRBIGLIA et al.
    (Nov. 29, 1920.
    On rehearing, Feb. 28, 1921. Rehearing Denied May 2, 1921.)
    
      (Syllabus by Editorial Staff.)
    
    I. Constitutional law &wkey;>265 — Indictment and information <©= 10 — Indictment may be found. and presented by less than 12 jurors; “quorum.”
    Act No. 98 of 1880, § 3, providing that the-grand jury for the parish of Orleans shall consisf; of 16 persons, 12 of whom shall constitute a quorum, was superseded by Const. 1S98, art. 117 (retained in Const. 1913), declaring that the grand jury in each and every parish shall consist of 12 members,^ of whom must concur to find an indictment; hence in the parish of Orleans 9 jurors will constitute a quorum, which means the number of members whose presence is required for transacting business; and the finding and presentment of an indictment in such parish by less than 12 grand jurors is not a violation of Const. La. arts. 2, 9, nor of Const. U. S. Amends. 5, 14.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Quorum.]
    2. Criminal law <&wkey;622(2) — Severance not called for where no showing that defenses would be antagonistic.
    Where, when the trial judge was called to pass upon the motion of one of the defendants for a severance, there was no evidence to lead him to believe that the defenses of applicant .and his codefendant would be antagonistic, their confessions having been corroborative of each other, showing they shared in the responsibility for the crime, there was no error in ■overruling the motion for severance.
    3. Criminal law <&wkey;l26(2)— Denial of change of venue held proper.
    Denial of motion for change of venue under Rev. St. § 1022, for popular prejudice, was proper, where there was no showing that the public mind was so inflamed against defendants accused of murder, that they could not obtain an impartial trial.
    4. Criminal law &wkey;>622(2) — Granting severance as to one defendant held not error.
    Where F. B. and O. Z. and R. B. were indicted together for murder, the fact that the district attorney successfully objected to the severance asked for by O. Z. and R. B. did not render it error,o as to F. B. to grant a severance as to R. B., on the district attorney’s motion, when the case was called for trial, in view of the general rule that the district attorney has control over the docket of criminal cases, and can try separately any one of several defendants under one indictment, and the fact that R. B., if he had testified on the trial with his codefendants, would probably have adhered to his previous statement to the police, which was entirely unfavorable to F. B.
    5. Criminal law <&wkey; 1166/2(6) — Refusal to allow certain line of questioning on voir dire held not prejudicial.
    In trial of two defendants for murder, refusal of the' trial judge to allow an attorney for one defendant to ask a juror on his voir dire, in two separate instances, whether the juror understood and would obey the law that a confession made by one defendant, implicating another, should be considered as evidence only against the party making the confession, and not against the other party — held not prejudicial,, if erroneous.
    O’Niell, J„ dissenting.
    6. Jury <&wkey;l03(¡3) — Jurors held not disqualified by fixed opinion requiring evidence to remove.
    _ As to jurors, each of whom stated, in his voir.dire, that he had formed an opinion from newspaper accounts of the crime, and that his opinion was so fixed that it would naturally require strong evidence to remove it, but that he could and would, if taken on the jury, put aside his opinion, and, presuming defendant’s innocence, be governed entirely by. the evidence, and, that he would not convict either defendant without proof of guilt beyond a reasonable doubt, the overruling of challenges on the ground that they had a fixed opinion held •not error.
    7. Criminal iaw <@=>5!8(l) — Accused need not be warned or cautioned for his confession to be available against him.
    The common-law rule that a party accused need not be warned or cautioned in order that his confession, made out of court and not under oath, may be used in evidence against him, has not been changed by statute.
    8. Criminal law <&wkey;>l 169(12) — Defendant held protected by instructions against erroneous effect of reading statements by one connected with criminal transaction.
    In murder trial, a defendant held fully protected by instructions not to consider against such defendant whatever was said out of his presence, nor any statement made in his presence, unless acquiesced in by him, against any illegal effect of reading to the jury statements by one connected with the transaction, made out of defendant’s presence, especially since such statements were not as unfavorable to defendant as his own confession/
    9. Homicide &wkey;>309(l) — Instruction on manslaughter held not erroneous.
    Although, under Rev. St. § 7S5, the jury has the power to render a verdict of manslaughter in a case where the evidence proves deliberate murder, the jurors ought to be informed and understand that they should not render a verdict of manslaughter in a ease of deliberate murder; so that, in a case where the evidence tended to prove deliberate murder and no provocation, an instruction that the jury were authorized’in all’murder trials to find a verdict of manslaughter, and further stating the law of manslaughter, and stating that if the jury found there was no provocation, a verdict of manslaughter would not be responsive to the evidence, was proper.
    Provosty, J., dissenting.
    Appeal from Criminal District Court, Parish of Orleans: Joshua G. Baker, Judge.
    Felix John Birbiglia and Charles Jones Zalenka were convicted of murder, and appeal.
    Affirmed on rehearing.
    Wm. H. Byrnes, Jr., and Frank S. Normann, both of New Orleans, for appellant Birbiglia.
    Ulic J. Burke, and Edmund G. Burke, both of- Now Orleans, for appellant Zalenka.
    A. V. Coco, Atty. Gen., Chandler C. Luzcnberg, Dist. Atty., Robt. H. Harr, Dist. Átty., Chas. G. Gill, Asst. Dist. Atty., and Manning W. Heard, Asst. Dist. Atty., all of New Orleans,- for the State.
   PROVOSTX, J.

The two accused, Felix' Birbiglia and Charles Zalenka, murdered a young woman at a lonely spot on the outskirts of this city after nightfall while they and she were joy riding in an automobile. They shot her with a pisiol, and beat her on the head with it, and threw her body down an embankment into soft mud, thinking that it would sink and disappear.- Their motive was robbery of valuable jewelry she usually wore. They had planned the crime before starting out on the ride. A third young man, named Burns, was driving the automobile. He was a cousin and friend of Zalenka, Jrat may have been ignorant of the intentions of the other two. The car was one'which he operated on the streets for hire, as an employe of its owner; and certain it is that Birbiglia paid him for its hire the amount which would have to be accounted for to its owner for the time occupied by the ride. As soon, as .the other two left his car, he went to his father, a police officer, and told of the crime. The other twq were immediately arrested; and when, brought to the office óf the superintendent of police freely confessed. The jewelry was found where Birbiglia said he had hidden it; and all the other attending circumstances cropping out of the confessions were verified, and they corroborated the confessions. From these confessions it appeared that the crime was planned, and that the pistol was handed to Birbiglia by Zalenka at the moment of the shooting, and that Birbiglia did the shooting and the beating.

Birbiglia moved to quash the indictment, on the ground that only nine jurors were present when it was found. The contention is that all 12 of the grand jurors must be present at the finding of ah indictment. The contrary was held in the cases of State v. Pailet, 139 La. 697, 71 South. 951, Ann. Cas. 1918A, 102, and State v. Walker, 137 La. 197, 68 South. 407. We find no occasion to re-discuss the question.

The same accused moved for a change of venue on the ground of prejudice against him hi the public mind, created by the newspaper publication of the confessions and of the details of the crime, and by the newspaper comments. Much evidence was taken in that connection. It satisfied the 'learned trial judge, and satisfies us that a fair trial could he had. We see no reason for rehashing this evidence, which is practically all one way.

Zalenka and Burns moved for a severance, on the grounds stated in the motion as follows:

“On motion of Charles Zalenka and Robert Burns, defendants herein, through Ulic J. Burke, their attorney, and on suggesting to the court that movers have been jointly indicted for the crime of murder with the other defendant, Felix John Birbiglia; that their defenses are antagonistic to those of the other defendant; that the confessions obtained by the. police from- the defendants herein incriminating each other, and designed to' be used in evidence against movers on the trial of the ease, would he greatly to their prejudice; and on further suggesting that movers desire to sever from the other defendant in this case in the defense thereof, and to have a separate trial.”

The court denied this motion for reasons stated as follows;

“Per Curiam. The sole ground urged for a severance was based upon the contention of counsel that the state would introduce confessions of the defendants which were antagonistic, 'and the reply of the district attorney that the confessions to be used wore not antagonistic, but, on the contrary, were' corroborative of each other. In my opinion, there was nothing in the confessions introduced on the trial of the case which entitled the defendant to. a severance.- Nothing was before the court to show whether the defendants would testify in their own behalf, or what their sworn statements, if they did so testify, would he.”

On the day of the trial, just before entering upon the trial, the state applied for a severance as to Burns, and it was granted.

Birbiglia complains that the ordering of this severance thus on the threshold of the trial, after it had been at one time opposed by the district attorney and refused, took him by surprise, and has operated to his prejudice, by practically depriving him of the benefit of the testimony of Burns, who without the severance would have had to take the stand as a witness in his own behalf, and thereby subjected himself to cross-examination, when “from his unwilling lips could have been wrung the true story of the crime.”

IVe are referred to- no law by which the discretion of the court in granting a severance on application of the state is in any way limited, and we know of none.

As to Zalenka’s motion for a severance, the allegations of fact contained in it were not sworn to, and therefore the facts therein alleged were not established as facts even priina facie. State v. Simon, 115 La. 732, 39 South. 971; 16 C. J. 788. So that the judge was at entire liberty to disregard them. Moreover, it does not suffice in such a motion to allege in general terms that the defenses are antagonistic. The facts should be stated so as to enable the judge to ascertain whether the antagonism is such as to necessitate a separate trial. No evidence was offered on the trial of this motion. The judge in passing upon it had to base himself upon such knowledge as he had derived from the confession theretofore made by Birbiglia; and, judging from that confession, there was no intention on th'e part of Birbiglia to shift the responsibility for the crime to Zalenka. In this confession Birbiglia had retained to himself full responsibility. Our learned brother was therefore well founded in his ruling.

But on the trial eacli of the two accused, testifying in his own behalf, did endeavor to exculpate himself as far as he could at the expense of the other; and hence their defenses did eventually prove to be antagonistic.

Under these circumstances, we are of the opinion that, upon a proper showing, timely made, for a severance before the trial which is to be hereafter had, a severance should in fairness be granted. Our reason for so holding is that in the confessions made in the office of the superintendent of police each of the accused implicates his associate ¡-in the crime, so that the confession of each of them will condemn the other, unless the jurors are able to liberate their minds from the impression which the confession cannot fail to have made., And as stated by the juror McEee on his voir dire (hereinafter to be referred to) “that is a rather difficult thing to do.” A trained mind may, no doubt, divest itself of a conceived- notion, but the average juror cannot so well do so, especially where the impression is deep, as in a case of this kind.

In State v. Taylor, 45 La. Ann. 606, 12 South. 927, this court said:

“The principle is clearly laid down by the text-writers on the subject, in a number of authoritative decisions, that the defendants cannot claim separate trials as a matter of right, although they sever in their pleas, but that the court, in its discretion, may allow them to be tried separately.
“There are exceptions to the rule. One, for instance, where one joint defendant has made a confession implicating both, and which the prosecution intends to offer on the trial.”

In State v. Lee, 46 La. Ann. 62S, 15 South. 159, this court said:

“It is proper for the judge to grant a severance in case the confession of one jointly indicted may implicate both — in case the prosecution intends to'offer same on the trial.”

In State v. Desroche, 47 La. Ann. 655, 17 South. 209, this court said:

“When * * * the defenses of each are antagonistic, and the confession of each, designed to be used, incriminates the other, we think the case for a severance is presented; otherwise each is tried by illegal evidence, the confessions being used.”

In State v. Duplechain, 136 La. 391, 67 South. 175, the court said:

“As no confession was offered, the appellants were not prejudiced by the overruling of their motion for a severance.”

In State v. Bessa, 115 La. 264, 38 South. 985, where the accused were jointly indicted for a crime one or the other of whom had committed, and the defense of each was that the other was the guilty party, this court directed that a severance be granted, simply because the defenses were antagonistic.

The general rule, no doubt, is that the granting of a severance is a matter within the discretion of the trial judge; but the ■rule is not without exceptions, as appears from the foregoing.

True, in State v. Johnson, 116 La. 865, 41 South. 117, this court incidentally remarked that the reason for allowing an exception to the said rule in a case where the confession of one defendant implicating another was intended to be used “would seem to have been removed by the passage of Act 1S5, p. 355, of 1902,” fixing the qualification of witnesses. But because the accused and his codefendants may testify does not obliterate from the minds of the jurors the deep impression which the confession of one of the accused may have made implicating his co-accused.

In the formation of the jury, our learned brother belo-w, usually so judicious, went to the very verge of legality, if, indeed, not overstepping it, in some of his rulings upon the competency of jurors challenged for cause as entertaining an opinion so fixed that a good deal of evidence would be required. to change it. See State v. Guillory, 146 La. 434, 83 South. 754, and State v. McCoy, 109 La. 682, 33 South. 730. We do not pass definitely upon these rulings, as a point is presented in the case upon which we are clear that the verdict must be set aside, and a new trial ordered; and as the law relative to the competency of jurors has been heretofore so thoroughly expounded in the cases supra, and many others, that for the purposes of the new trial there can be no necessity. of any further expounding.

A point not considered in those eases, however, and which may come up again on the new trial, arose in the course of the examination of the juror McEee on his voir dire as follows:

“Q. Now, Mr. McEee, under the law, the judge will instruct you that, where two or more persons are jointly indicted, the confessions of one, made after the termination of. the murder, implicating others, are admissible only against the person making the confession. You understand that?
“A. I get the idea; yes; it’s news to me.
“Q. Could you eliminate from your mind the confession of one of the defendants so far as it implicates the other defendants, and consider it only as to the one who made it?
“A. I think that is a rather difficult thing to do when they are together.
“Q. Suppose that the court instructed you that that was the law, and any confession one of the defendants may have made, implicating the other, you must disregard that confession and apply it only to the one who makes it. Could you totally disregard that as to the other defendants?
“Mr. Lúzenberg: We object on tbe ground counsel should not be permitted to ask hypothetical questions based on - what may or may not be offered in evidence.
“The Court: I think that is a line of examination which is objectionable as going into the possible evidence that will be introduced in the case, and requires the juror in advance to state what he would do in regard to this particular evidence.
“Mr. Burke: Does your honor rule that the question should not be asked?
“The Court: Yes.”

This ruling was correct. The question was as to the ability of the juror, in considering the case of one of the accused, to disregard whatever impression the confession of the other accus'ed might have made upon him. The question addressed itself, not to the con-, clition of the mind of the juror touching bias or prejudice or opinion formed, but to the sufficiency of his intellect for weighing the evidence. No doubt a juror, sworn on his voir dire, who apparently is not intelligent enough to serve, may be questioned for testing his intellectual qualification. But this is evidently unnecessary and a useless waste of time in the case of a juror as intelligent as this juror McFee had already shown himself to be.

The confessions made in the. office of the superintendent of police were in response to questions propounded by that officer, and the questions and answers were taken down' by a stenographer as the same were being made. When they came to be offered in evidence, the accused Birbiglia objected, on the ground that they had not been taken down in their entirety. The facts in that connection are that there would be interruptions in the examination of the accused- in the superintendent's office, and that during these interruptions conversation would be carried on having no bearing upon the crime, and that it is this irrelevant conversation which was not taken down; that the confessions were taken down in their entirety. Evidently, therefore, this objection to their being admitted was without foundation.

The stenographic report showed that Birbiglia and Zalenka were first examined out of each other’s presence, and then in each other’s presence, and that then Zalenka was taken out and Burns was brought in, and that the following was what occurred while Burns was in the office:

“Q. (to Burns). Do you know this man (indicating Birbiglia) ?
“A. No, sir.
“Q. Ever see him before?
“A. I never did see him- before.
“Q. Is that tbe man got in your machine to-night?
“A. Yes, sir.
“Q. Who did he get in the machine with?
“A. Some girl.
“Q. Who else?
“A. A fellow was in my machine already.
“Q. AVhat is your cousin’s name?
“A. Zalenka.
“Q. Charles Zalenka?
“A. Yes, sir.
“Q. (to Birbiglia). Do you know this man (indicating Burns) ?
“A. I met him on several occasions.
“Q. Did you meet him last night?
“A. Yes, sir. I have seen him before.
“Q. Is this tbe man who was driving the machine and left the Maison Blanche last night?
“A. Yes, sir.
“Q. AYko was in your car with him when you got in the. car ?
“A. His cousin, Charley Zalenka.
“Q. Who did you get in the car with?
“A. A lady.
“Q. Is he the one who was driving the car?
“A. Yes, sir.
“Q. He is the one who Zalenka went over and talked to about taking this woman out, knocking her off foi; her diamonds?
“A. Yes, sir.
“Q. It was all understood, and he knew all about it?
'“A. Yes, sir.
“Q. He drove the machine?
“A. Yes, sir;i I wasn’t there when the conversation between him and Charley Zalenka took place; Charley told me he told him he was going to -take this woman out and knock her off for her diamonds.
“Q. He was on the front seat with Zalenka?
“A. Yes, sir.
“Q. Zalenka handed you the gun from the front seat to the back seat, and you took it in your right hand and shot her?
“A. Yes, sir.
“Q. After she was shot, who helped you take the woman out of the machine?
“A. Charley Zalenka.
“Q. Whore was the gun then?
“A. I can’t exactly say.
“Q. You didn’t have him covered with the gun ?
“A. No, sir.
“A. (by Burns). He had the woman by the arm, dragging her and the gun in the other hand.”
(Zalenka was brought in the office.)
“Q. (to Zalenka). Zalenka, who helped this man drag that woman out of the machine?
“A. I did.
“Q. Where was the gun then?
“A. I don’t know where the gun was.
“Q. This man (Birbiglia) didn’t have the gun?
“A. No, sir.
“Q. You didn’t have ■ him covered with the gun?
“A. No, sir.
“Q. (to Burns). What about it, Burns?
“A. Birbiglia had the gun.
“Q. (to Burns). You heard Zalenka state that he helped this man to drag the woman out of the ear and throw her in the swamp?
“A. Ho is tolling a lie; I did see him'drag her.
“Q. (to Zalenka). You did help him drag her out?
“A. Yes, sir.
“Q. And Birbiglia didn’t have you covered with the gun?
“A. No, sir.
“Q. Did you have any conversation with this fellow (Burns) before this man and this woman got in the car?
“A. No, sir; never said anything to him at all.
“Q. Where did you get out of the ear with this man (indicating Birbiglia) ?
“A. On St. Andrews and Dryades.
“Q. Did you go into the house with him?
“A. Yes, sir.
“Q. AVent into his house?
“A. Yes, sir.
VQ. You were good friends, then; you didn’t have any trouble?
“A. No, sir; never said anything to each other.
“Q. When Burns left you, was there any trouble with him?
“A. No, sir.
“Q. (to Burns). This man (Birbiglia) paid you $0 for driving the car?
“A. Yes. sir.
“Q. AAho was it told- Corporal Burns about this shooting?
“A. (Burns). I went up and got him.
“Q. After you went up and got him, what did you do?
“A. 1 wont to Birbiglia’s house first.
“Q. What conversation did you have?
“A, I never had none; we didn’t get out of the car.-
“Q. How did you get him out?
“A. Blew- the horn.
“Q. And he came out?
“A. His pa came out first.
“Q. Then what happened?
“A. AVc told him to got in the ear.
“Q. Then where did you go?
“A. AVent to this fellow’s house (indicating Zalenka).
“Q. Then what happened?
“A. Brought him to the station.
“A. (by Birbiglia). lie came up to my house before; after he left us oil St. Andrews and Dryades, about 15 or 20 minutes later,- or half a hour or so, he came up with- Charley’s father, Burns did, with Charley’s father and another fellow. I was behind the counter at the time. Charley ho left about five minutes before to come down and see Burns, and Burns walked into the saloon. I was behind the bar, and walked outside with him, and he got back into the machine, and he said ‘AVhei-e’s Charley?’ and I said, ‘I think he went down town to see Burns,’ and I said, ‘Why, what’s the trouble?’ and he said, ‘His mother is very sick; I want to see him;’ and I said, T think that’s where you can catch him;’ and he went off. An hour or so later he came back again; that is, I was called out' of bed, and I came down stairs.
■‘Q. AVho vías with him then?
“A. AAhen Burns came there the second time ?
“Q. No; the-first time.
“A. Charley Zalonka’s father and another young man.
“Q. (to Burns). AAho was it?
“A. My brother Edmond.
“Q. (to Birbiglia). Did your father know-then about this shooting?
‘,‘A. I don’t know'.
“Q. (to Burns). AA’ho did you tell first?
“A. Zalonka’s father.
“Q. AVhat did you tell his father?
“A. I told him to go to Charley; he had hired a car and went out and shot a woman.
“Q. That he hired a car and shot a woman?
“A. Yes, sir.
“Q. He’s what relation to you?
“A. Cousin.
“Q. When did you toll your father about it?
“A. When I went up with Charley’s pa, I brought him back home, and I went up and told my pa about it.”

This stenographic report was read to the jury by Air. O’Hara, the assistant district attorney. When he reached the point where Burns was brought in, the following- occurred:

‘"Air. O’Hara: At this point, if your honor please, Zalenka was taken out of the office, Burns was brought in the office, and Burns made a statement in the presence of Birbiglia. Now, if Air. Byrnes wants to read—
“Air. Byrnes: I certainly think it all ought to be read.
“Air. Burke: AVe object to any statement going to the jury that was made by Burns. Burns is a defendant here charged, and if the state desires to use Burns as a witness, he is “here in the city of New Orleans, and can easily be procured.
“Mr. Luzenberg: I think that it is admissible against Birbiglia if Birbiglia’s counsel insists upon it, but it is not admissible against Zalenka.
“The Court: This is Burns’ statement?
“Air. Luzenberg: Yes, sir. I think what Birbiglia says is admissible. What Burns says is not admissible.
“Air. Burke: I represent Air. Burns as well as Zalenka — that is why I object to anything he said.
“The Court: Burns is not on trial.
“Air. Burke: If the state desires to use Burns, lie is here in the city.
“Air. O’Hara: We are not going to use Air. Burns.
“Air. Burke: If Air. Byrnes desires to use Burns he is available.
“Mr. Byrnes: If your honor pleases, here is tire situation: On the morning of the trial, Burns is severed, it is in the record, a severance is ordered, and he is taken out of the case, and here lie is present, and most important' things are being said, things which will explain many things in that statement, and yet, in the continuous whole of that statement, when we reach the point at which Burns is brought into the room, they step in and let him out of the ease, and he is a cousin of Zalenka.
“Mr. Burke: I don’t know what the statement is, or what it purports to be, but I simply object to it.
“Air. Luzenberg: They were all present, and if Air. Birbiglia’s counsel insists upon it, I think it ought to go in, with the instruction that it should. not be considered as against Zalenka or Burns.
“Air. Byrnes: We are not insisting upon any part of the confession being read, but if that part is road the whole ought to be read.
“The Court: The court rules that counsel for Birbiglia is entitled to have this portion of the confession read — that if part of the confession is read, he is entitled to have the whole confession read, and the court further, in this connection, instructs the jury that any part of this statement that -refers to Zalenka should not be considered by the jury as against him at all unless made in his presence.
“Air. Burke: I reserve a bill of exception, making the question and answers of Burns a part of the bill, and at this time, mgy it please the court, I want to request the jury to be instructed not to consider that portion of Birbiglia’s statement, made in the presence of Zalenka, as referring to Zalenka, and that it be 'considered only as against Birbiglia. In other words, we contend that a confession made by one of the two defendants, whether the confession is made in his presence and hearing,' is not admissible against th( codefendant, but must be considerco b; the.- jury against him who made it.
“The Court (to the jury): A statement made under those conditions, where both persons are present, and where the statement implicated or refers to the other person, who remained silent and makes no answer at all, that cannot be used against him at all. Of course, if he takes part in the statement and admits the truth of it, or shows he understands it, and does make answer, why then it can be used, but his more silence cannot be used against him at all.
“Air. Burke: I understand your honor to mean by that that only that part of the statement of Birbiglia that was acknowledged by Zalenka is to be considered against him, and the part that he denies is not to be used against him.
“The Court: Exactly. Any part he denies, or any part about which ho remains silent. He had a perfect right to remain silent.
“Air. Luzenberg: AVe don’t think that the jury ought to consider that, ‘He is the one that Zalenka went over and talked to.’ We think that ought not to be considered by the jury.
“The Court: I think that is evident; that ought not to bo considered.’-’
(The portion above referred to and to be read is indicated by “Read,” and that- portion was read to the jury.)
“During the further reading the following occurred:
“Mr. Byrnes: You can stop there.
“Mr. Burke: This testimony is being read at the request of counsel for Birbiglia, and we contend that it is not within the province of the state or attorney for defendant to say to the gentleman who is reading the statement, ‘Stop there.’ We contend that the court ought to pass upon the question whether he is going to read it or not.
“Mr. Byrnes: I understand it is being read over my objection.
“Mr. Burke: The whole thing is being read over my objection, but I object to part of it being stopped at this particular point.
“Mr. Byrnes: I don’t object to it being read; I simply said, if you are doing it to oblige me, you can stop there.
“The Court: The court rules that counsel has no right to request the reading to stop at any particular point.”

And the entire report was read.

As Burns was not on trial, the statements made by him were not evidence except in so far as they had been acquiesced in by the accused, and converted thereby into admissions. In that regard, our learned brother ruled correctly. But he failed to observe that Zalenka had not acquiesced in any of the statements made by Burns. True, he was present at, and heard some of them; but, being under arrest, he had a perfect right to remain silent, so that his having, remained silent cannot be construed into an acquiescence. ’ Marr’s Crim. Juris, p. 662. And, in fact, even if he had not been under arrest, none of the statements were of such a nature as particularly to challenge contradiction in such way that remaining silent when they were made in his presence could be construed into acquiescence in them. The only one of these statements which was really damaging to him is the one where Burns said:

“I told him [Zalenka’s father] to go get Charley [Zalenka]; he had hired a car and went out and shot the woman.”

But in that statement Burns was merely asserting that he had made a certain statement to his father. Zalenka was evidently under no necessity of contradicting the assertion of Burns that he (Burns) had made a statement to his (Burns’) father, out of the presence of Zalenka. We think that the questions propounded to Burns and the answers made by him should have been excluded. The fact that Birbiglia made no objection to their being read, is unimportant. If the evidence was inadmissible in the case, Birbiglia’s failure to object to it, or even his request that it be admitted, could not make it competent. And it was inadmissible in the case, since, so far as acquiescing in tire said statements of Burns is concerned, the situation is the same precisely as to Birbiglia as we have just stated it to have been as to Burns. He no more than Zalenka acquiesced in the statements of Burns. Evidence competent as to one of several accused on trial is admissible even though incompetent as to the other accused; but evidence wholly incompetent in the case cannot be made so by the consent of one of the accused to its admission.

In stating hereinabove that there was a point made in the case upon which clearly the verdict would have to be set aside and a new trial granted, we had reference to the exception reserved to the following instruction of our learned brother below to the jury:

“Section 785 of the Revised Statutes provides that, ‘there shall be no crime known under the name of murder in the second degree, but on trials for murder the jury may find the prisoner guilty of manslaughter.’ In other words, in this state the law authorizes the jury to find a verdict of manslaughter on all trials for murder, and requires the court to so instruct the jury.
“ * * * If you find from the evidence that there was no provocation for the killing, the law of manslaughter would be inapplicable. The theory upon which you find a verdict of manslaughter is that the evidence in the case is applicable to the crime of manslaughter, and if you find from the evidence that there was no provocation for the killing, a verdict of manslaughter would not be responsive to the evidence in the case.”

Taken as a whole, this charge means that the jury can find, for manslaughter only when the evidence justifies it. Such is not the law. They may find for manslaughter in the most unmitigated case of murder. State v. Kinchen, 126 La. 39, 52 South. 185; State v. Hicks, 113 La. 779, 37 South. 753. In State v. Brown, 40 La. Ann. 725, 4 South. 897, a case of unmitigated murder like the present, the judge refused to charge the law of manslaughter, because inapplicable to the facts of the case. He was reversed, because, regardless of what the facts of the case may be, the jury is authorized to find for manslaughter on a trial for murder.

Very true, in the case of State v. Parks, 115 La. 765, 40 South. 39, this court approved a charge in which the judge had said to the jury, “You can * * * bring in a verdict of manslaughter, provided you find that the evidence in the case justifies such a verdict;” and that this court said in State v. Clark, 46 La. Ann. 704, 15 South. 83, that “it was the duty of the judge to * * * charge that, if the evidence justified such a verdict, they could return it,” thereby implying that such a verdict could be returned only if the evidence justified it.

But in the latter case while giving utterance to that expression, the court stated the law’ to be that—

“It matters not what is the nature of the evidence; the law absolutely and without qualification gives to the jury the right to return a verdict of manslaughter on a trial for murder.”

The court failed to observe the utter inconsistency between the two enunciations.

As far as the Parks Case is concerned its effect would be to wipe out of the statute book section 7S5; for if manslaughter can be found only when the evidence justifies it, said section becomes a useless dead letter; since, without it, just as well as with it, manslaughter may be found in every trial for murder when the evidence justifies it. To that effect is the common law, where no such statute exists; and criminal trials in this state are required to be according to the common law in the absence of modifying statute.

The intention in enacting this statute may only have been to express the idea that juries may find for manslaughter in cases where at common law the crime would be murder in the second degree. But the wording is not so qualified. It is broad and sweeping:

“On trials for murder the jury may find.the prisoner guilty of manslaughter.”

As said in the Clark Case, supra:

“This law absolutely and without qualifica.tion gives to the jury the right to return a verdict of manslaughter on a trial for murder.”

Perhaps this statute should be modified, but so long as it stands as now written this court can but enforce it.

The judgment and verdict in this case are therefore set aside, and the case is remanded, to be proceeded with according to law.

O’KIELL, J., concurs in the decree.

On Rehearing.

O’NIELL, J.

Felix John Birbiglia and Charles Jones Zalenka were indicted, together with one Robert Burns, for the murder of Mrs. Bertha Michelsohn Neason.

Birbiglia filed a motion to quash the indict-’ ment on the ground that only nine members of the grand jury were present or took part in the investigation of the case or the finding of the indictment. The motion was overruled, and Birbiglia’s counsel reserved a bill of exception to the ruling.

Thereafter Zalenka and Burns, through their attorney, moved for a severance, alleging that their defenses were antagonistic to those of Birbiglia; that the confessions obtained. by the police from the defendants, incriminating each other, and designed to be rised in evidence against them on trial of the case, would- be greatly to their prejudice; and that they should therefore have a separate trial from that of Birbiglia. The motion was overruled, and the attorney for Zalenka and Bums reserved a bill of exceptions to the ruling.

Thereafter Birbiglia’s attorney, who did not represent either Zalenka or Burns, moved for a change of venue, alleging that the local newspapers had, by their publications regarding the homicide, created such a prejudice against him in the’ community that it was impossible for him to obtain a fair or impartial trial in the Parish of Orleans. After hearing evidence on the motion for a change Of venue, it was overruled; and Birbiglia’s attorney reserved a bill of exception to the ruling.

The ease of all three defendants having been fixed for trial,,and the district attorney and the attorneys for the defendants having announced, when the case was called for trial, that they were ready to proceed with the trial, the district attorney asked for a severance as to the defendant Burns, announcing that he would then try only Birbiglia and Zalenka. The attorney for Birbiglia objected to the severance as to Burns, on the ground that the district attorney had successfully objected to the severance asked for by Burns and Zalenka and should not be permitted to withdraw his objection as to Burns immediately before putting the other defendants on trial. The objection to the severance was overruled; and Birbiglia’s attorney reserved a bill of exception to the ruling.

Birbiglia and Zalenka were then tried, and found guilty of the murder. They filed motions for a new trial, reiterating the complaints which they had made in all previous bills of exception, and contending that the verdict should be set aside for the further reason' that one of the jurors, Louis Surgi, had, when he received his summons, announced that he was pleased with the opportunity to serve on the jury because he intended to hang the defendants. The motions for a new trial were heard and overruled, and bills of exception were reserved to the ruling. The defendants were then sentenced to suffer the penalty of death. On appeal to this court, the verdict and sentence were annulled, because a majority of the members of this court regarded a certain part of the trial judge’s charge as an erroneous instruction. On the petition of the state, a rehearing was granted, and tbe case has been reargued on all of the bills of exception reserved by both or either of the defendants.

The first bill of exception to be considered is that which was reserved by Birbiglia’s attorney to the overruling of his motion to quash the indictment. Plis contention is that the finding and presentment of an indictment by less than 12' grand jurors is a violation of articles 2 and 9 of the Constitution of this state, and a violation of the Fifth and Fourteenth Articles of Amendment of the Constitution of the United States. This question was presented, and decided contrary to appellant’s contention, in the following cases, viz.: State v. Griggsby, 117 La. 1046, 42 South. 497; State v. Walker, 137 La. 197, 68 South. 407; State v. McLaughlin, 138 La. 958, 70 South. 925 ; and in State v. Pailet, 139 La. 697, 71 South. 951, Ann. Cas. 1918A, 102.

Appellants’ attorney contends that the ruling in the cases cited was erroneous; that the ruling in State v. Griggsby was based solely upon the decision in State v. Swift, 14 La. Ann. 827, which was not appropriate, because of a change in the provisions of the Constitution as to the number of grand jurors required to constitute a quorum, ,and that the ruling in State v. Walker, State v. McLaughlin, and State v. Pailet, merely followed the decision in State v. Griggsby, without observing the change in the provisions of the Constitution.

It appears that article 116 of the Constitution of 1879 merely declared that the General Assembly should provide for the selection of grand and petit jurors, leaving it to the General Assembly to determine how many members the grand jury should be composed of, and how many should constitute a quorum, or how many should concur to find an indictment.

Section 3 of xVct 98 of 1880 (page 125), being the statute organizing the Criminal District Court for the parish of Orleans, as established by article 130 of the Constitution of 1879, declared:

“That the grand jury for the parish of Orleans shall consist of sixteen persons, twelve of whom shall constitute a quorum.”

Article 117 of the Constitution of 1898,. as retained in the Constitution of 1913, declares :

“A grand jury of twelve, nine of whom must concur to find an indictment, shall be impaneled in each parish twice in each year, and shall remain in office until a succeeding grand jury is impaneled: except in the parish of Cameron, in which at least one grand jury shall be impaneled each year.”

Section 7 of Act 135 of 1S9S, as originally enacted, carrying out the provisions of articles 116 and 117 of the Constitution of 1&98, relating to juries in other parishes than the parish of Orleans, declared:

“The grand jury shall he composed of twelve members, nine (9) of whom must concur to find an indictment.”

By Act 155 of 1906 (page 262), relating to juries in other parishes than the parish of Orleans, section 7 of Act 135 of 1898 was amended in several respects. The first amendment was to declare that the grand jurors should serve until their successors should be selected, and qualified, instead of the original provision that the grand jurors should serve “for the next ensuing six (6) months.” Another amendment was to ímovide for selecting a grand juror in case one already impaneled should become disqualified for any cause. The original provision was in case a member should become disqualified “for any case.” The only amendment which pertains to the question before us, however, declares in terms that 9,members of the grand jury, in parishes other than the parish of Orleans, shall constitute a quorum, viz.:

“The grand jury shall be composed of twelve members, nine (9) of whom must concur to find an indictment, and nine members present shall constitute a quorum for the transaction of business with full power and authority to investigate all matters and to find and report indictments and other matters, the same as if the twelve were present and acting, provided that when less than twelve are present, at least nine (9) shall concur to find indictments or report on other matters. In the event the foreman should be absent, then the presiding judge shall appoint one of the remaining eleven as acting foreman, or foreman pro tempore, who shall possess and exercise all the 'powers (whilst so acting) of the foreman.”

As the Act 135 of 1898 and the Act 155 of 3906 do not apply to the parish of Orleans, there has been no act of the Legislature reducing the number of members of the grand jury for that parish, or the number necessary to constitute a quorum, since the enactment of Act 9S of 1S80, declaring that the grand jury for the parish of Orleans should consist of 10 members, 12 of whom should constitute a quorum. ■ Section 3 of Act 98 of 1SS0, however, has been superseded by article 117 of the Constitution of 1S9S, retained in the Constitution of 1933, declaring that the grand jury in each and every parish shall consist’ of 12 members, 9 of whom must concur to find an indictment. It would be altogether unreasonable to say that the only provision of section 3 of Act 9S of 1S80 that was repealed or superseded by article 117 of the Constitution is the provision that the grand jury for the parish of Orleans should consist of 16 persons, and that the provision, “twelve of whom shall constitute a quorum,” remains in force or effect. The expression “twelve of whom,” in the provision of section 3 of Act 98 of 18S0, that the grand jury for the parish of Orleans should consist of 16 persons, 12 of whom should constitute a quorum, meant 12 of the 16 persons of whom the grand jury should then be composed. When the Constitution reduced the number of members necessary to constitute a grand jury from 16 to 12, it abolished the provision of section 3 of Act 9S of 1880 that 12 of the 16 should constitute a quorum.

It is said in appellants’ brief that article 117 of the Constitution forbids our holding that an indictment can be found by the concurrence of only 9 members of the grand jury when less than 12 have taken part in the deliberations. But we do not find it so. All that the Constitution requires, in that respect, is that there shall be in existence a grand jury composed of 12 qualified members, and that 9 of them must concur to find an indictment. There is not the slightest implication that every member of the grand jury must take part in the deliberations in any case, in order that 9 members may concur to find a valid indictment.

By the terms of Act 155 of 1906, applying to every parish in the state except the parish of Orleans, 9 members of the grand jury constitute a quorum for the transaction of any business. It would therefore seem strange indeed if the Constitution required the presence of all 12 members of the grand jury for the parish of Orleans to constitute a quorum for the transaction of any business. If article 117 of the Constitution so required for the parish of Orleans, the requirement would apply also to every other parish in the state, and Act 155 of 1906 would be unconstitutional; for article 117 makes no' distinction or exception as to the parish of Orleans. Our opinion is that the provision in article 117 that the grand jury shall be composed of 12 members, and that 9 must concur to fin'd an indictment, is self-operative. And we find nothing in the Constitution or statutes of this state to justify a ruling that all 12 members of a grand jury must be present to constitute a quorum, when the concurrence of 9 members only is required to find an indictment.

Article S6 of the Constitution declares that this court shall be composed of five members, that is, a chief justice and four associate justices, and that a majority of the members shall constitute a quorum,; and article 89 requires the concurrence of three, that is, a majoritj’-, of the members of the court, to render a judgment. As was suggested in the case of State v. Causey, 43 La. Ann. 901, 9 South. 903, there is no more reason why the presence of the entire membership of the grand jury should be required to transact business, when the concurrence of 9 only is required to find an indictment, than there would be for requiring the 'presence of the entire membership of this court, when the concurrence of only three members is required to render a judgment. The word “quorum,” as used in section 3 of Act 98 of 1880, and as used with regard to all deliberative assemblies, means the number of members whose presence is required for transacting business. The finding of an indictment is the most solemn and important function a grand jury has to perform. As the concurrence of more than 9 members is not required for exercising that function, it would be unreasonable to require the presence of more than that number to constitute a quorum for any other purpose. Our conclusion is that our former rulings upon this question are correct.

The next bill of exception to be considered is that which was reserved by Zalenka to the overruling of his motion for a severance, filed on behalf of himself and Burns. It does not appear that any evidence was offered in support of the motion, unless it be that the court should regard as evidence the confessions which the defendants had made, which had been taken down stenographically and transcribed, and which were referred to expressly in the motion for severance. It is said in the statement per curiam, attached to this bill, that the confessions showed that the defense of Birbiglia on the one side and the defenses of Zalenka and Burns on the other side were not antagonistic to each other. The judge found that the confessions which the three defendants had made corroborated each other, and that there was no showing that the defenses would be antagonistic to each other on the trial of the case. As a matter of fact, the confessions or statements which the three accused parties, Birbiglia, Zalenka and Burns, made to the superintendent of police, within a few hours after the homicide, were, in almost every detail, corroborative of each other. They did not indicate that Birbiglia’s and Zalenka’s defenses would be antagonistic to each other. The confessions of Birbiglia and Zalenka, and the statement of Burns, left little or no ground for any defense whatever on the part of either Birbiglia or Zalenka. They acknowledged that they had conspired to invite the woman out for an automobile ride and murder her and rob her of her diamonds. Birbiglia acknowledged that he fired the fatal shots into the woman’s body while he had his arm around her, on the rear seat in the automobile, and that he took her diamond rings off of her fingers after shooting her. Zalenka acknowledged that he was on the front seat of the automobile at the time, and handed Birbiglia the pistol with which to shoot the woman. They both acknowledged that, after Birbiglia had shot her and robbed her of her diamonds, they dragged her body from the automobile to the edge of a canal, by the side of the road. Birbiglia acknowledged that he had hidden the diamonds in a crevice in the wall of his father’s establishment; and, | in corroboration of his statement, he went with the policemen and showed them where the diamonds were hidden, and the policemen found the diamonds there. The only difference between the confession of Birbiglia and that of Zalenka is that Birbiglia displayed little or no reluctance in assuming responsibility for the crime, whereas Zalenka first denied that he had had any knowledge of Birbiglia’s intention either to murder or to rob the woman, and he first denied that he had taken part in either the murder or the robbery, or in removing the body of the woman from the automobile to the place where it was found. After hearing Birbiglia’s statement, however, Zalenka acknowledged freely his part in the crime.

On the trial of the case, each of the defendants testified that the other alone committed the crime. Bach testified that he had had no knowledge of any intention on the part of the other to c'ommit the crime. Bums was not called as a witness in the case, and did not testify.

If the judge had known, when he was called upon to pass judgment upon the motion for a severance, that the defense of Birbiglia would be antagonistic to that of Zalenka and Burns, he would not have been justified in overruling the motion. There is no case more appropriate for the granting of a severance at the instance of one of two or more codefendants than a case where each defendant attempts to put the blame upon the other. But it does not appear that the judge had any reason to believe, when he was called upon to pass judgment upon the motion for a severance, that such a case would develop. Under these circumstances, the judge did not commit an error in overruling the motion for a severance.

The next bill of exception to be considered is that which was reserved by Birbiglia to the overruling of his motion for a change of venue. Section 1022 of the Revised Statutes-allows a change of venue when, by reason of prejudice existing in the public mind, or for any other cause, a defendant cannot obtain an impartial trial in the parish in which the indictment is pending. The evidence taken on the trial of the motion for a change of venue in this case shows that the local newspapers gave great publicity to the crime, and to the confessions made by Birbiglia and Zalenka; and that the effect was to create a strong prejudice against them in the public mind, in the sense that the public would be naturally prejudiced against any one who acknowledged having committed such a crime. It appears, too, that the newspapers editorially demanded an immediate trial of the parties accused, and called public attention to the fact that the judge to whom the case was allotted postponed his vacation in order to try the case promptly. But the evidence does not show that the public mind was so inflamed that .the parties accused could not 'obtain an impartial trial in the parish of Orleans. On the contrary, all of the witnesses who testified on that subject, except two, expressed the opinion that the defendant- could obtain . an impartial trial in the parish of Orleans-. We see no reason for reversing the trial judge’s conclusion on that question.

The next bill of exception to be considered is that which was reserved by Birbiglia’s attorney to. the ruling of the court granting a severance as to Burns, on the motion of the district attorney, when the case was called for trial. It is conceded that, as a general rule, the district attorney has control over the docket of criminal cases, and can try separately any one of several defendants under one indictment. The principal objection urged by Birbiglia’s counsel to the severance in this case was that the district attorney had .successfully objected to the -severance asked for-by Burns and Zalenka. It may be that the district, attorney’s reason for opposing the motion of Burns for a severance was that Zalenka had joined in the motion. It may be that the district attorney would not have opposed the motion for a severance on behalf of Burns alone. No authority is cited, -and we know of none, to support the argument that the district attorney was bound to put Burns on trial at the same time when he put Birbiglia and Zalenka on trial merely because the district attorney had opposed the motion of Burns and Zalenka to be tried separately from Birbiglia. The statement which Burns had made to the superintendent of police, four or five hours after the homicide was committed, and which was taken down stenographically and transcribed, is attached to and made part of this bill of exception. Burns was Uie chauffeur who drove the automobile in which the woman was murdered. In his statement to the superintendent of police, he said that Birbiglia had fired the fatal shots, had robbed the woman of her diamonds, and dragged her from the automobile to the swamp beside the canal. There is not an expression in the statement favorable to Birbiglia. As the three parties accused were the only persons who knew what had transpired at the. time and place of the homicide, it is likely that Burns would have deemed it advisable to testify in the case if he had been put. on trial with Birbiglia and Zalenka. The presumption is that, if he had testified, he would have adhered to the statement made to the superintendent o£ police. Such testimony would have been entirely unfavorable to Birbiglia. Under these circumstances, we do not see how the granting of a severance as to Burns was prejudicial to Birbiglia. Our conclusion is that the judge did not commit an error in allowing the severance as to Burns.

There are two bills of exception presenting one and the same question of law. They were reserved to the refusal' of the trial judge to allow the attorney for one of the defendants to ask a juror on his voir dire, in two separate instances, whether he understood and would obey the law that a confession made by one defendant implicating another should be considered as evidence only against the party making the confession, and not against the other party.

The facts as recited in one of the bills are as follows: While C. TI.- McFee was being examined on his voir dire by Zalenka’s attorney, to test McFee’s qualifications^ as a juror, he was asked this question, viz.:

■ “Now, Mr. McFee, under the law, the judge will instruct you that, where two or more persons are jointly indicted, the confessions of one, made after the termination of the murder, implicating others, are admissible only against the person making the confession. You understand that?”

To which McFee answered:

“I get the idea; yes; it’s news to me.”

Zalenka’s attorney then asked McFee:

“Could you eliminate from your mind the confession of one of the defendants so far as it implicates the other defendant, and consider it only as to the one who made it?”

To which McFee answered:

“I think that is a rather difficult thing to do when they are together.”

The attorney then asked McFee:

“Suppose that the court instructed you that that was the law, that any confession one of the defendants may have made implicating the other, you must disregard that confession and apply it only to the one who makes it. Could you totally disregard that as to the other defendant?”

Then the district attorney interposed an objection, thus:

“We object on the ground that counsel should not be permitted to ask hypothetical questions based on what may or may not be offered in evidence.”

The court sustained the objection, saying:

“I think that is a line of examination Which is ■ objectionable, as going into the possible evidence that will be introduced in the 'case, and requires the juror in advance to state what he^ would do in regard to this particular evidence.”

Zalenka’s attorney, addressing the court, asked:

“Does your honor rule that the question should not be asked?”

To which the judge replied: “Yes.” To. which ruling, Zalenka’s attorney reserved a bill of exception, making the entire record in the case a part of his bill.

In the statement per curiam, the judge gives, three reasons for sustaining the district attorney’s objection. The first reason stated is that the judge considered the question confusing. The second reason stated is that the confession.of a defendant, made after the commission of a crime, if made in presence of his codefendant, and if the latter takes part and acquiesces in it, is admissible against both defendants. The third reason stated is that the question was a hypothetical ques: tion, based upon evidence that might possibly be introduced in the case, and required the juror to state in advance what lie would do> in regard to that particular evidence.

The facts stated in the other bill of exception under consideration are as follows: When II. P. Moran was being examined on his voir dire by Zalenka’s attorney, to test Moran’s qualifications as a juror, the attorney asked him this question:

“The judge will instruct yon that, where two or more persons are jointly indicted, the confessions of one, made after the termination of the murder, implicating himself and others, is admissible only against the person making it. Now, could you eliminate from your mind the confession of one of the defendants so far as it implicates the other defendant, and consider it simply and only as to the one. who made it?”

Here the district attorney, without specifying his objection, said:'

“I think that is objectionable.”

To which the judge replied:

“Objection sustained by the court.”

To which ruling Zalenka’s attorney reserved a bill of exception, making the entire record in the case a part of his bill. In the statement per curiam, the judge merely referred to the statement attached to the bill regarding the question asked MeFee.

The majority of the members of this court are of the opinion that, if the ruling complained of in these two bills of exception was erroneous, it was. not of the character to prejudice the defendants.

The writer is of the' opinion that the ruling was wrong in both instances. It does not appear to him that the question was at all confusing, in either instance. It is true, the attorney did not explain, either to Me-Fee or to Moran, that a confession made by one accused person, implicating another, if made in the presence of the other and if acquiesced in by him, is admissible against both parties. But no objection was made on that score. If such objection had been made, the attorney examining the juror would have had the right to give a full explanation, or to have the judge do so. The only objection made by the district attorney to the question propounded to MeFee was that the question was a hypothetical one, based upon facts which might or might not be offered in evidence. Although the district attorney did not urge any particular objection to the question propounded to Moran, it may be assumed that his objection was the same that he had urged to the question propounded to MeFee. As a matter of fact, the question had reference to confessions which the district attorney knew would be offered in evidence against the parties accused. Of course, a defendant on trial for a crime is not permitted to embody in a hypothetical question propounded to a juror on his voir dire all of the facts of the case, and require the juror to say what verdict he would render on proof of such facts. But that was not done in this ease. The ques- ■ tion propounded to MeFee and to Moran was simply whether he understood, and whether he would obey, a principle of law, which was stated to the juror and was appropriate to the facts of the case. It is true, the record does not disclose whether MeFee and Moran, or either of them, served on the jury, or whether either of them was challenged peremptorily. But it is admitted that the de-' fendants in this case exhausted their peremptory challenges before the impaneling of the jury was completed. Hence it makes no difference whether the defendants were compelled to accept MeFee and Moran, or either of them, as jurors, .or were compelled to use a peremptory challenge on either of them. The writer takes into consideration that the right of the defendants, in the impaneling of the jury, was not the right to select any particular juror, but merely the right to reject any disqualified juror. But, as far as the record discloses, the defendants were not permitted to ask any juror on his voir dire whether he understood and would obey the law that a confession made by one of several accused parties, implicating another of the parties, is not admissible in evidence except against the party who made the confession. The writer thinks this question was highly important with regard to the qualifications of MeFee to serve as a juror in this case, because he had acknowledged that the principle of law was news to him, and that it would be rather difficult for him to avoid considering the confession of one of the defendants as evidence against the other. It is true the questions to which these bills of exception refer were asked only by the attorney representing Zalenka, not by the attorney representing Birbiglia, and the bills of exception were reserved only by the attorney for Zalenka. But the writer thinks that, under the judge’s ruling, it would have been a vain and idle ceremony, and might eventually have been regarded as contempt of court, for either of the attorneys to ask each and every juror on his voir dire the same question, on which the judge had put his ban. The writer therefore thinks that the error shown in these two bills of exception is so serious that the verdict and sentence should be set aside and the case remanded for a new trial. The majority opinion, however, is otherwise.

The next two bills of exception to -be considered were reserved by Zalenka’s attorney to the overruling of his challenge of two proposed jurors, on the ground that they had a fixed opinion. Each of the proposed jurors, on his voir dire, said that he had formed an opinion from the newspaper accounts of the homicide. Each of them said that his opinion was so fixed that it would naturally require strong evidence to remove it. But each of them also said that he could and would, if taken on the jury put aside his opinion, and, presuming the defendants to be innocent, be governed entirely by the evidence in the case, and that he would not convict either of the defendants unless the state proved his guilt beyond a reasonable doubt. After a careful reading of the examination of these jurors on their voir dire, our conclusion is that they were not disqualified.

The next three bills of exception to be considered are those which were reserved to the overruling of the defendants’ objections to the introduction in evidence of the confessions made to the superintendent of police. The objections were: (1) That the confessions were not free or voluntary; (2) that the stenographer did not take down all that was said in the confessions; and (3) that the accused were not warned that the confessions might be used in evidence against them.

The evidence shows- conclusively that the confessions were free and voluntary. In fact, there was so little merit in the contention to the contrary that the point has not been seriously argued, either orally or in the briefs filed on behalf of appellants. The evidence also shows conclusively that all that was said in the confession of either of the defendants, and all that was said by Burns in his statement, was recorded accurately by the stenographer. Nothing was omitted that was favorable to either of the parties accused, or that was at all relevant to the homicide. The objection that the parties accused were not warned that their confessions might be used in evidence against'them is without merit. The rule at common law is that a party accused need not be so warned or cautioned, in order that his confession, made out of court and not under oath, may be used in evidence against him. There is no statute to the contrary in this state. See State v. Hogan, 117 La. 863, 42 South. 352.

The next bill of exception to be considered is that which was reserved by Zalenka’s attorney to the overruling of his objection to the district attorney’s reading of the statement which Burns had made to the superintendent of police, a few hours after the homicide, in presence of Birbiglia, but not in the presence of Zalenka. The judge having ruled that the confessions of Birbiglia and Zalenka were admissible, the assistant district attorney proceeded to read the confessions to the jury. He read the confession made by Birbiglia, not in the presence of Burns or Zalenka. He then read the confession made by Zalenka, not in the presence of either Birbiglia or Burns. He then read a further statement made by Birbiglia, not in the presence of either Burns or Zalenka. He then read a further statement made by Zalenka, which was commenced out of the presence of Birbiglia and Burns, but was completed in Birbiglia’s presence. In the latter statement, questions were propounded to Birbiglia and Zalenka, alternately, and they corroborated each other in nearly, if not quite, all of the details of the tragedy. Then Zalenka was taken out of the room, and Burns was brought in. When the assistant district attorney, who was reading the confessions to the jury, came to the stenographer’s note that Zalenka was taken out of the office, and Burns brought in, he called the attention of the court and of the attorneys for the defendants to the fact that Burns’ statements were made only in the presence of Birbiglia, not in the presence of Zalenka; and he inquired whether the attorney for Birbiglia wanted him to read what had been said by Burns and Birbiglia out of the presence of Zalenka. Birbiglia’s attorney replied that he thought it should all be read. Zalenka’s attorney immediately objected to the reading of any statement made by Burns out of the presence of Zalenka. He stated that he represented Burns as well as Zalenka, and that Burns could be called as a witness either for the state or for Birbiglia. The assistant district attorney then announced that he did not intend to call Burns as a witness; Birbiglia’s attorney then stated that ,tbe confessions were being read over his objection, and that he was not insisting that any part should be read, but was merely insisting that, if any part of the confessions should be read, the whole should be read, including the statements that were made by Burns. Thereupon the court ruled that Birbiglia was entitled to have the entire confessions read, including what was said by Burns in Birbiglia’s presence; and the court immediately instructed the jury that whatever was said out of Zalenka’s presence should not he considered as evidence against him. Thereupon Zalenka’s attorney reserved a bill of exception, and requested the court to instruct the jury not to consider as evidence against Zalenka any statement made by Birbiglia out of the presence of Zalenka. The judge then again instructed and cautioned the jury that they should not consider any statement made by any one of the parties accused as evidence against any other of the parties accused, unless such statement was made in the presence of such other party, and was acquiesced in by him. He even cautioned the jury that each one of the parties accused had .the right to remain silent with regard to any statement made by any of the other parties accused, and that the remaining silent of any of the parties accused, when any other of the parties made a statement implicating him, should not he regarded as evidence against him. The statements which were made by Burns to the superintendent of police, first in the presence of Birbiglia and thereafter in the presence of both Birbiglia and Zalenka, are attached to the hill of exception. Burns’ statement corroborated the confession which Birbiglia had made, in all of its gruesome details, and was not nearly so unfavorable to Zalenka as was his own 'confession. Our conclusion is that the judge’s instructions to the jury protected Zalenka against any illegal effect of the statements made by Burns out of the presence of Zalenka. Although we do not quite understand why Birbiglia insisted that the statements made by Burns should be read to the jury, our opinion is that he had a right to have the entire statements read, after the court had ruled that what he had said was admissible.

The next bill to be considered is that which was reserved to the judge’s charge to the jury on the subject of manslaughter. That part of the charge was as follows:

“Section 7S5 of the Revised Statutes provides that there shall be no crime known under the name of murder in the second degree, but on trials for murder the jury may find the prisoner guilty of manslaughter. In other words, in this state, the law authorizes the jury to find a .verdict of manslaughter on all trials for murder, and requires the court to so instruct the jury.
“Now, gentlemen, it is necessary that you should know, in a brief way, what manslaughter is. Manslaughter is where a person, acting under some great provocation, in the heat of blood, on the spur of the moment, unlawfully slays another human being. If you find from the evidence that there was no provocation for the killing, the law of manslaughter would be inapplicable. The theory upon which you find a verdict of manslaughter is that the evidence in the case is applicable to the crime of manslaughter, and if you find from the evidence that there was no provocation for the killing, a verdict of manslaughter would not be responsive to the evidence in the case.”

At this point, Zalenka’s attorney objected, thus:

“I want to reserve a bill of exceptions to,the court’s charge on manslaughter. We contend that, in all murder cases, irrespective of whether there is provocation of not, the jury has a right to bring in a verdict of manslaughter, and that when the court charges the jury that, in a ease where there is no provocation for the crime, they are not justified in bringing in a verdict of manslaughter, it is prejudicial error to the accused.”

Thereupon, the court addressed the jury, thus:

“The court desires to say that it did not instruct the jury that they could not bring in a verdict of manslaughter. On the contrary, it did,' and does now instruct them, that they can return a verdict of manslaughter in all trials for murder. It simply gave the jury instructions on the law of manslaughter, and instructed them, if there was no provocation whatever, then the law of manslaughter would not be applicable. Now, gentlemen, the court further instructs you that, so far as the evidence is concerned, and the weight to be attached to the evidence, and the amount of creditability to be attached to the testimony, that is something exclusively within your province. With the facts of the case you and you alone must deal. The •court has no right to say what has or what has not been proved, or comment in any manner upon the testimony. You not only determine what has or has not been proved, but also the weight to be attached to the testimony of the witnesses. It is the duty of the court to give you the law’, applicable to the evidence, whether that evidence comes from the state or the defense, and you then apply this law, but in doing so you judge for yourselves of w’hat facts have been proven.”

If the judge had said that, if the jury should find from the evidence that there was no provocation for the killing, a verdict of manslaughter would not be responsive to the indictment or charge against the defendants, his instruction would have been erroneous. But what the judge said was that, under such circumstances, a verdict of manslaughter would not be responsive to the evidence in the ease. Our opinion is that the instruction was entirely correct. Although a jury has the authority, or rather the power, under section 785 of the Revised Statutes, to render a verdict of manslaughter in a case where the evidence proves deliberate murder, the jurors ought to be informed and understand that they should not render a verdict of manslaughter in a case of deliberate murder. Section 785 of the Revised Statutes does not mean that jurors may, without violating their oath or their conscience, render a verdict' of manslaughter when the evidence does not justify it, in a prosecution for murder.

The reason why the judge must instruct the jury, in all prosecutions for murder, that they may render a verdict of manslaughter, is that his failure to do so would leave the jury with no other alternative than to convict the defendant of murder or acquit him entirely. It would be the same as for the judge to instruct the jury as to what the evidence in the case was; whereas the judge has no right to comment upon the facts or evidence in the case. In State v. Hicks, 113 La. 779, 37 South. 753, the judge’s charge wuis declared erroneous, because he instructed the jurors that, although they had the power to render a verdict of manslaughter in the case, if they did so, it would be witnout his consent. That was the same as to tell the jurors that, under the evidence, they had no other alternative than to find the defendant guilty of murder or not guilty.

The judge’s charge in this case was in strict accord with the ruling of this court in State v. Clark, 46 La. Ann. 704, 15 South. 83, and in State v. Parks, 115 La. 765, 40 South. 39; and our conclusion is that the charge was correct.

The only remaining bills of exception to be considered are those which were reserved to the overruling of the motions for a new trial. The only question presented in the motions, not already disposed of, was whether the verdict should have been set aside because of the alleged statement, made by the juror Surgi, -that he would hang the defendants if he should be taken on the jury. The evidence taken on trial of the motion showed conclusively that the juror did not make any such statement. There is therefore no merit whatever in this bill' of exception; and it has not been seriously argued, either orally or in the briefs filed on behalf of the defendants.

The verdict and sentence against both defendants is affirmed. The right to apply for a rehearing within the time allowed by law is reserved to each of them, because this is the first decree rendered against them by this court, and because some of the questions now decided were not so decided in the original opinion.

PROYOSTY, J., dissents, adhering to the opinion heretofore handed down.  