and excused, and before any juror had been accepted, and after Mr. Goff had stated upon his voir dire that he was a juror in the previous trial of Martin Ancho-. berry, the following question was addressed to him by the district attorney: "Who was the juror who wanted to convict both defendants on the Anchoberry case?" To this remark exception was taken by defendant's counsel. Upon objection by defendant the court reminded counsel that such conduct was entirely improper and expressed a hope that it would not occur again. The juror was excused and as there was no other juror in the jury-box or shown to be within hearing of the remark we cannot see how the rights of defendant were in any way prejudiced. Thereafter when any juror was called he could be examined as to whether he had heard anything about the occurrence.

3. After a special venire had been summoned upon the examination of Venireman Smith as to his qualifications as a juror he stated in effect that from what he had heard he had an impression that a crime had been committed; that the opinion did not go to the guilt or innocence of the defendant Morris. To the question: "And you think you have reasonable grounds for supposing that a crime has been committed?" he answered: "Yes, I think I have." Thereupon the district attorney stated: "I think any reasonable man would have that impression." To this remark of the district attorney exception was taken and error is assigned thereto. Upon the juror stating that he could and would, if accepted as a juror, lay aside the opinion that a crime. had been committed and try the case solely upon the evidence, counsel for defendant withdrew their challenge of the juror and he was accepted. Defendant did not request any ruling of the court upon the matter or ask that the jury be instructed to disregard the same.

The statement of the juror, in which counsel for the state by his remark unnecessarily concurred, was not after explanation made by the juror considered sufficient upon which to base a challenge. The mere exception to the remark of counsel without obtaining or attempting to obtain a ruling thereon by the trial court is not of sufficient materiality to be considered upon appeal: State v. Lee Ping Bow, 10 Or. 27; State v. Anderson, 10 Or. 456; State v. Abrams, 11 Or. 169 (8 Pac. 327); State v. Drake, 11 Or. 396 (4 Pac. 1204); State v. Hatcher, 29 Or. 309 (44 Pac. 584).

We pass next to the main question in this case. Assignments of error Nos. 5 to 8 relate to the reception in evidence over the objection and exception of defendant's counsel of a written confession of defendant and admissions made by him on the ground that the same were involuntary. Before the admission of the confession testimony was taken to show whether or not the same was voluntary.

W. B. Snider, sheriff of the county, testified in part as follows:

"When Tommy arrived at the office in the company of Mr. Caldwell, the deputy, I took him into the private office on the north side of the hall in company with Mr. Rinehart and myself and I told him that the Frenchman, Martin Anchoberry, had made a confession in which he implicated him in the murder of that woman, and I asked him if he wanted to see some of his folks or an attorney. If he wanted to he had better call for some of his folks or an attorney and he said he didn't. I told him 'You understand if you make any statements they will be used against you, if you talk at this time.' In fact, I urged him to talk to some of his folks before he made any statement and he didn't wish to do it."

Snider stated that afterwards the district attorney warned the defendant; that no threat or promise was

made to Morris by anyone at the time of his examination. On cross-examination the sheriff testified:

"Q. Well, you didn't say to Tommy, a boy you have known for years, and whom you say you didn't at that time believe to be guilty, 'Now, Tommy, it will be better for you to tell all you know about this matter if you know anything about it'?

"A. I may have said it, I don't know. I would not be positive that I did, but it don't seem to me,

"Q. Did you say to him anything to the effect that it would be better for him to tell you if he knew anything about what happened?

"A. No, I don't think I told him it would be better for him because I realized that it would not and warned him to that effect.

"Q. Did you say to him at that time, 'Tommy, you ought to tell all you know about this matter and if you do tell I will do anything I can to assist you'?

"A. I don't know. Afterwards I did."

E. E. Rinehart, the deputy sheriff, testified to the effect that Sheriff Snider and the district attorney warned defendant that any statement he might make would be used against him; that he did not need to make any statement unless he wanted to, and that the sheriff asked him if he wanted to see his folks or wanted an attorney and he said "No"; that he remained in the office with the defendant during the noon hour while the sheriff and district attorney were out; that he talked to defendant quite a while and Morris asked him some questions about his former reputation. As to the conversation regarding the homicide, Mr. Rinehart said:

"As near as I can tell in the exact words, it was just about this way: After we talked a while I told him, I said you heard what Willie Arzner has said and the Frenchman has made a complete statement and has implicated you and I said, 'the fact of the matter is

you was up there at the death of that woman the other night.' He nodded his head and said he was.

"Q. You say you had talked some prior to that,what was that talk?

"A. He asked me some questions, if I knew anything about his past reputation, if he had ever done anything before.

"Q. What did you tell him?

"A. I said I didn't know of anything.

"Q. Was that the extent of the conversation that led up to this?

"A. Yes. **

"A. He said 'I didn't kill her. * * I just held her hands.'"'

On cross-examination Mr. Rinehart stated: "I did say this, 'You had just as well tell me.'"'

C. C. Gibbs, district attorney, deposed in substance, that:

"I told the defendant, Tommy Morris, that the Frenchman, Martin Anchoberry, had made a confession and had implicated him in the killing of that woman. That we wanted to question him concerning the facts; that he need not answer any questions which were put to him unless he wanted to, but that if he did answer questions which were put to him or made any statements which incriminated himself they would be used against him. ** After I had told Tommy that any statement he might make would be used against him we then began to question him. We questioned him concerning his whereabouts on the night of the crime; what different places he had been; what he had done; who he was with, etc., and we would check up his statement to find out to our own satisfaction whether he was telling the truth or not. Then Mr. Snider would question him a while; I think Mr. Snider and I did most of the questioning. I believe Mr. Rinehart asked a question or two. This examination continued until about noon. During that time we had Willie Arzner in the room confronting the defendant Tommy Morris, and I

think Johnny Frakes, but I am not sure about Johnny Frakes."

This witness further testified that after they returned to the office from lunch the defendant gave an outline of the things leading up to the crime and its commission, and the district attorney wrote the statement in narrative form; that this was read to the defendant who signed and swore to it. On cross-examination he stated that it was the custom of his office to examine a defendant before the latter consulted an attorney.

Tommy Morris, defendant, testified that Rinehart― "told me to tell the truth, it would be better for me and he would do all he could for me"; that Sheriff Snider said "he knew I was into it for the Frenchman said I was and it would be better for me to own up to it. He told me to tell the truth and they would do all they could for me. ** I don't know as he used them words but that is what I took it for."

Morris stated that he was in the sheriff's private office ten or fifteen minutes.

The foregoing is in substance a fair portrayal of the manner in which the confession was obtained.

4. It is elementary that a confession to be admissible against one charged with crime must be shown by the prosecution to be voluntary; that is, that it has not been induced by hope or fear: Section 1537, L. O. L.; Underhill, Crim. Evid. (2 ed.), § 126; State v. Wintzingerode, 9 Or. 153; State v. Spanos, 66 Or. 118 (134 Pac. 6); State v. Garrison, 59 Or. 440 (117 Pac. 657).

5, 6. The testimony shows that before the examination of Morris was begun he was fully informed of the nature of the charge pending against him; that he was advised to consult his people or an attorney before making any statement, and was warned before he made any statement at all and again after he had admitted