
    Supreme Court—Appellate Division—Third Department.
    
    May 4, 1898.
    PEOPLE v. FRANK H. WILMARTH.
    1. Juror—Competency—Actual bias.
    Where a juror states that he has a decided opinion as to defendant’s guilt or innocence which it would take evidence to remove, and that he does not think he would he unprejudiced, challenge for actual bias should be sustained.
    8. Evidence—Documentary—Books.
    Upon the trial of an indictment against a city treasurer for altering a pay roll, a time book, kept by the street superintendent and containing the names of each person employed, the time he labored, his wages and the amount due him is inadmissible in evidence generally, in the absence of proof that'it was made in the performance of his duties and was correct.
    3. Same—Memorandum.
    Such hook may be used by the Street superintendent to refresh Ms recollection.
    Appeal from a judgment, convicting defendant of grand larceny.
    Eobert P. Anibal, for appellant.
    William G. Mills, District Attorney (EL V. Borst, of counsel)} for the People.
   Herrick, J.

Every person accused of crime has a right to insist that the jury by whom he is to be tried shall be composed of unprejudiced, fair, and impartial men. While the trial court has facilities superior to those of the appellate court for determining whether the persons selected as jurors are unprejudiced, fair, and impartial, the appearance and demeanor of a juror while under examination being great aids in forming a judgment as to his honesty, sincerity, and intelligence, and while in an otherwise doubtful case we should abide by the determination of the trial court as to the qualifications of a juror, yet when it appears clear to us from the record that a prejudiced man—one who is incapacitated from passing fairly upon the case—has been allowed to serve as a juror, then it is our duty to disregard the decision of the trial court, and give to the defendant the benefit of our convictions in the matter; otherwise the right and duty to review devolved upon this court would be valueless. In this case it seems to me perfectly clear that the juror Hollenbeck was not an unprejudiced juror, although he seems to have been an honest and candid man. Without reviewing his examination, it is sufficient to say that he had a then present opinion as to the guilt or innocence of the defendant that it would take evidence to overcome; that he was prejudiced, He himself testified that he did not think he would be a fair and unprejudiced man to try the case. The juror was not brought within the meaning and spirit of the requirements of subdivision 2, § 876, Code Or. Proc., as to persons who have formed an opinion as to the guilt or innocence of an accused. It is unnecessary to refer to precedents in passing upon this question. Each case turns upon its own peculiar facts; the general rule is well known. In this case it is perfectly apparent that, as to this juror at least, the defendant had imposed upon him the burden of proving his innocence of the crime charged against him, instead of having the burden imposed upon the people of proving his guilt. The defendant’s challenge to the juror should have been sustained.

The defendant also brings up the exceptions taken by him to the reception in evidence of certain pages of a time book kept by the superintendent of streets of the city of Grloversville. The charge against the defendant is that he altered a pay roll of city laborers from $81 to $131, he being treasurer of the' city, and thereby obtaining $100, which he was charged with keeping. It is the duty of the street superintendent of the city of Grloversville to make out and present to the common council pay rolls stating under oath the name of each person employed, the time he labored, his wages per day, and the amount due him. Section 9, tit. 3, c. 55, Laws 1890. It appears in evidence that the superintendent was in the habit of keeping what he called a time book, wherein he entered the names of the persons employed by him, the time when employed, and their wages per day. The prosecution offered two pages of this book in evidence, apparently the pages covered the same period •of time as did the pay roll in question. The defendant objected to their reception in evidence as incompetent, irrelevant, and immaterial, and that no proper foundation had been laid for their reception in evidence. There was no evidence that the time book was made by the witness in the performance of his duties, and there was no evidence that it was made at the time the men were employed ; neither did he testify as to its correctness. The prosecution upon this appeal stated that “ on the trial it was treated as a memorandum of the witness, containing a large number of names, items of wages and hours of labor, which the witness could not recollect without the book, and it was intended by its introduction not to be evidence in itself, but merely a statement of entries and items, which the witness identified.” And, again, that “ this memorandum was not offered as showing any conclusions or as evidence of any facts stated therein.” Ho such position in reference to this time book appears to have been taken upon the trial by the people, but the same was offered and received generally in evidence, and, so far as I can see, without any limitation or restriction, and not as a mere memorandum, from and by which the witness refreshed his recollection. The book, the proper foundation being laid therefor, could undoubtedly be used to refresh the recollection of the witness, as now contended for by the people, but its reception at the time and in the manner the record discloses, over the defendant’s objection, was error. For these reasons the judgment should be reversed, and a new trial granted.

All concur.  