Opinion of the Court-Quarles, J.

ing in the commission of a crime, without guilty knowledge, is not criminal. In other words, they could not, in view of this instruction, have taken the charge as to aiding or assisting in its narrow and literal sense."

In the case at bar the court gave, of its own motion, instructions numbered from 1 to 59. In the instructions complained of and set forth above, the jury were given to understand that the state must prove beyond a reasonable doubt that the defendant knowingly and intentionally aided the commission of an unlawful act which had a tendency to destroy human life, or advised or encouraged the same, before they could convict him. Among said instructions are those numbered 33 and 40, which are as follows: "No. 33. To find a person guilty of a conspiracy to commit a crime, it is necessary for you to be satisfied from the evidence, beyond a reasonable doubt, that the party accused shared in the criminal purpose; and in this case, if you find that the defendant did no overt act in carrying out the conspiracy, and did not enter into any unlawful agreement, then, even though you should be satisfied from the evidence, beyond a reasonable doubt, that the defendant knew of the conspiracy and did not dissent from it, then such knowledge of the conspiracy on the part of the defendant would be insufficient to warrant you in presuming that he was guilty of the crime charged." "No. 40. The burden is on the prosecution to prove beyond a reasonable doubt that a combination and conspiracy were formed (that is to say, that the defendant and others conspired and agreed to intimidate by force and violence, and threats of violence, the employees of the Bunker Hill and Sullivan Mining and Concentrating Company, and to drive from their employment all nonunion miners of the Coeur d'Alene) and that, in the execution or carrying out of such conspiracy and design, some one of the parties to said conspiracy and agreement shot and killed James Cheyne. The burden of establishing these facts is upon the prosecution throughout, and never shifts to the defendant; and, therefore, if the prosecution has failed to prove beyond a reasonable doubt each and every one of these facts, you should acquit him." The instructions, taken as a whole, informed the jury that they must find from the evi

Opinion of the Court-Quarles, J.

dence, beyond a reasonable doubt, that the defendant acted knowingly and with guilty purpose and intent, and excluded the idea that they could convict because he innocently aided in the perpetration of a crime. While the instructions complained of are in part erroneous, yet no substantial right of the defendant was prejudiced. The instructions, taken as a whole, fairly gave the jury the whole law of the case. The last sentence above, in our opinion, is all that is necessary to be said in regard to the twentieth to the thirty-first specifications of error, based upon the action of the court in refusing certain requests of the defendant for instructions.

The thirty-second specification of error is as follows: "The court erred in denying defendant's motion for a new trial." The reasons urged in support of this specification of error are: 1. Because the court misdirected the jury in matters of law, and erred in the decisions of questions of law arising during the trial; 2. Because the verdict is contrary to law. What we have heretofore said disposes of the first ground. As to the second ground, it is urged that the evidence showed that James Cheyne did not die in Shoshone county, but in Spokane, Washington. This fact was testified to by a brother of deceased, and the bill of exceptions states that this was all of the testimony as to where the deceased died. The fifty-fifth instruction given by the court is as follows: "No. 55. In conclusion let me instruct you that in this case the state must prove beyond a reasonable doubt, and to a moral certainty (1) that James Cheyne is dead; (2) that he came to his death in the county of Shoshone, state of Idaho; (3) that Paul Corcoran, the defendant, unlawfully, willfully, feloniously, and of his deliberately premeditated malice aforethought, by the means set forth in the indictment, killed and murdered the said James Cheyne; (4) that the deceased died within a year and a day after the stroke received or the cause of death administered. Subdivision 3 of this instruction must be read and considered by the jury in connection with the instructions governing conspiracies, herewith submitted." Appellant contends that the verdict was contrary to this instruction. We do not think so. The evidence showed that deceased was shot during the riot at Wardner, in Shoshone

Opinion of the Court-Quarles, J.

county, April 29, 1899, being badly wounded; that, in the effort to save his life, he was carried to the Sacred Heart Hospital, in Spokane, Washington, where he died. But he "came to his death," within the meaning of the instruction, in Shoshone county, by there receiving the injury of which he died, if such was the case. Defendant was tried upon the theory that in the riot of April 29, 1899, through the actions of a large body of conspirators, of which he was one, in doing an unlawful act such conspirators shot and wounded the deceased, of which wound said deceased died within a few days after its infliction. The jury so found. The venue was properly laid. The injury which produced death being inflicted in Shoshone county, the defendant "came to his death," within the meaning, of the instruction, "in the county of Shoshone, state of Idaho." In the absence of the evidence showing the nature and necessary effects of the injury received by the deceased in Shoshone county, we cannot overturn the verdict of the jury by presuming that the injuries which caused the death of deceased were inflicted elsewhere. The trial court had jurisdiction of the offense. Section 7491 of the Revised Statutes is as follows: "The jurisdiction of a criminal action for murder or manslaughter when the injury which caused the death was inflicted in one county and the party injured dies in another county or out of the territory, is in the county where the injury was inflicted." Both under this statute and under said instruction, the deceased "came to his death" in the county where the injury which caused the death was inflicted.

Appellant argues in his brief that the evidence was insufficient. That is a matter that we cannot inquire into in the absence of the evidence.

It is also urged that the motion for a new trial should have been sustained because it was shown by the affidavits used on the hearing of said motion that the jury was guilty of misconduct, as follows: 1. In the inordinate use of intoxicating liquors while in the performance of their duty as jurors, and without permission of the court; 2. That the jury separated, contrary to the order of the court." To sustain these two alleged instances of misconduct of the jury, appellant filed numerous affidavits,

Opinion of the Court-Quarles, J.

canyon

which were considered on the hearing of the motion for a new trial. In the affidavits we find statements tending to show that the jury daily drank large quantities of beer and whisky; that they read the daily papers in which the proceedings of the trial were reported, the reports being unfair to the defendant and tending to prejudice him; that one of the jurors, during a recess of court, while the jury was in custody of a bailiff and were taking a walk, climbed upon a box-car, and sat down on the edge of same in the manner in which some of the witnesses at the trial stated the defendant sat while returning on the train from Kellogg on April 29, 1899-said juror, while on said box-car, being watched by the other jurors; that on one occasion two women visited the jury in the jury-room, and remained with the jury some fifteen minutes; that during the progress of the cause, but before the final submission of the cause to the jury, jurors separated themselves from the body of the jury; and that during the progress of the trial one of the bailiffs (R. L. Duncan) said in the presence and hearing of one of the jurors (William Thomas) that "a miner's life has not been safe in this [pointing up and down the canyon] for seven years." We have carefully examined all of the affidavits used upon the hearing of the motion for a new trial, both on behalf of the defendant and on behalf of the state, and are clearly of the opinion that the charges of inisconduct on the part of the jury are not sustained. Each of the jurors and each of the bailiffs positively denied, by separate affidavit, each of the charges of misconduct. We are firmly convinced that the charges made against the conduct of the jury during the progress of the trial are untrue. There is only one particular in which we think the jurors acted indiscreetly, and this is shown by the following quotation from the affidavit of one of the jurors: "Affiant further states that no member of the jury at any time during the trial was in the slightest degree intoxicated or under the influence of liquor; that said jury was permitted to have liquor in small amounts on three or four occasions, but never to the extent that the effects of same were felt or noticed to any extent whatever, so far as being intoxicated was concerned. Affiant further states that no liquor was given them after the case was submitted to them." All of the jurors and several other per

Opinion of the Court-Quarles, J.

sons depose to the same effect. It was improper to supply the jurors with liquor to any extent. Officers in charge of jurors should not furnish them liquor, nor permit it to be furnished to them. Men while sitting upon a jury should not, during a recess of the court or otherwise, partake of intoxicants, especially where, as in the case at bar, a life depends upon their verdict. Everyone who is tried upon a criminal charge is entitled to a fair and impartial trial. The trial, and especially the conduct of the jury, should not only be fair in fact, but should also be fair and free from all misconduct in appearance. Hence the use of intoxicating drinks by individuals who are acting as jurors at any time during the progress of the trial deserves severe condemnation. Nevertheless, we cannot, under the weight of present authority, overturn the verdict of the jury in this case unless it appears from the record that the defendant was prejudiced by the jurors using intoxicating liquors. No showing to this effect is made. The jurors used but little liquor, and none of them were intoxicated to any extent. We are satisfied that the defendant was not prejudiced by the conduct of the jury in any particular, and that the use of liquor by the jury worked no harm to the defendant. (See State v. Reed, 3 Idaho, 754, 35 Pac. 706.)

It is stated in one of the affidavits introduced by the defendant that two of the jurors, before the trial commenced, made statements tending to show that they were biased against the defendant. We held in State v. Davis, 53 Pac. 678, that such affidavits did not show a ground for new trial. The jurors were examined upon their voir dire, but the testimony given by them upon such examination is not before us. We must conclude that they stated that they were not biased or prejudiced against the defendant, and had not formed or expressed any opinion as to his guilt or innocence, or that they would have been excused for cause. Error must affirmatively appear in the record, or the judgment will be affirmed. (See State v. Hurst, 4 Idaho, 345, 39 Pac. 554; State v. Haverly, 4 Idaho, 484, 42 Pac. 506.)

A careful consideration of the record before us convinces us that the defendant had a fair and impartial trial; that the law was fully, correctly and ably given to the jury in the instruc