his work, dangerous and unsafe, which was before reasonably safe, and is himself aware that the servant has no knowledge of the changed conditions, and it is not the duty of the servant to know of such changed conditions, then the master should warn the servant of such danger in time to prevent the injury. In the present case it appears from the testimony of the plaintiff that the master made the platform where the servant was required to pass dangerous and unsafe, and gave no warning of its condition, and thereby the servant, although using due care, as the jury found, was injured. We are of the opinion that the request was properly refused.

The court correctly charged the jury that under the facts the question of fellow servant was not in the case, and that whatever was done by the foreman in the mine in leaving the hole in the platform was chargeable to the defendant.

Upon the whole record, we find no reversible error. The judgment of the district court is affirmed, with costs.

BASKIN and BARTCH, JJ., concur.

(24 Utah, 482)

STATE v. KING et al. (Supreme Court of Utah. March 28, 1902.)

DEPOSITION OF STATE'S WITNESS-ADMISSIBILITY-CONSTITUTIONAL LAW MURDERCOMMISSION OF FELONY-INDICTMENT-SUFFICIENCY-CONSPIRACY.

1. Rev. St. 1898, § 4513, subd. 4, providing that where the charge has been examined before a committing magistrate, and "the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined the witness, * the deposition of such witness may be read" upon the trial if it is satisfactorily shown to the court that the witness "is dead, * * or cannot, with due diligence, be found within the state," is not in conflict with Const. art. 1, § 12, guarantying that an accused shall have the right "to be confronted by witnesses against him." 1

2. A witness was examined and cross-examined at defendants' preliminary hearing. He did not appear at the trial, though subpoenaed. His roommate had not seen him for three weeks, when he stated that he was going to Oregon. To the officer summoning him as a witness, he stated that he was going away, but would return. The officer had not seen him since serving the subpoena upon him. Another officer had not seen the witness since the day he was summoned as a witness, and stated that at that time he informed the officer he was going to Oregon. The name of the witness was called in court at the opening of the trial. A subpoena was issued for him at the time of the trial, which was returned unserved. The return showed that after due diligence the witness could not be found, and that his whereabouts were unknown. Held, that the trial court properly exercised its discretion, within Rev. St. 1898, § 4513, relating to the depositions of witnesses, when it is "satisfactorily shown to the court" that the witness "cannot, with due diligence, be found within the state." in admitting the testimony given at the preliminary hearing of the absent witness.

State v. Mannion, 57 Pac. 542, 544, 19 Utah, 505, 512, 45 L R. A. 638, 75 Am. St. Rep. 753.

ΟΙ

3. Rev. St. 1898, 4161, provides that "ev ery murder perpetrated by poison any other kind of willful, deliberate, malicious and premeditated killing, or committed in the perpetration of any arson robbery" is murder in the first degree. An information for murder alleged that the accused "willfully, deliberately, maliciously, and with premeditated malice, killed and murdered" decedent. Held sufficient to charge murder in the first degree, and evidence tending to show that the murder was committed in the perpetration of a robbery was properly admissible.

4. General exceptions to the instructions of the court. or exceptions to whole paragraphs thereof, are insufficient to raise questions on appeal.

5. When two defendants and another were associated together to rob a person, and such person was killed, the killing, by whichever of the three it was done, was the act of each and of all three of the conspirators, and the two defendants were chargeable therewith, whether they, or their companion, fired the fatal shot,8

Appeal from district court, Salt Lake county; John E. Booth, Judge.

Robert L. King and another were convicted of murder, and appeal. Affirmed.

Will F. Wanless, for appellants. M. A Breeden, Atty. Gen., and W. R. White, Dep. Atty. Gen., for the State.

MINER, C. J. The information in this case charges, in the usual form, that, on the 11th day of September, 1900, in Salt Lake county, the defendants willfully, unlawfully, feloniously, deliberately, premeditately, and of their malice aforethought, did kill and murder Godfrey Prowse. The testimony shows that the defendants, and a third man unknown, entered the gambling house of the deceased in the nighttime, with their faces masked, and with revolvers in their hands, and there shot and killed the deceased. Their evident purpose was robbery. Defend ant Lynch was shot and wounded by Prowse, About 13 shots in all were fired by all par ties, most of them by the three masked men. All three masked men directed their shots at Prowse. Both defendants were identifiled, and revolvers were found in the alley near where the shooting was done.

Paul Johnson, an eyewitness to the shooting, was called, sworn, and examined by the prosecution, and was cross-examined by the defendants on the preliminary hearing before the magistrate. He was not present at the trial, and the prosecution, under objection, was permitted to read his testimony taken on such preliminary examination to the jury. This is alleged as error. Section 4513, Rev. St. 1898, so far as material, reads as follows: "In criminal prosecutions the defendant shall be entitled: 4th. To be confronted by the witnesses against him, except that where the charge has been preliminarily

• Wilson v. Mining Co., 52 Pac. 626, 16 Utah, 332; Nebeker v. Harvey (Utah) 60 Pac. 1029; Lowe v. Salt Lake City, 44 Pac. 1050, 13 Utah, 91, 57 Am. St. Rep. 708.

State v. Morgan, 61 Pac. 527, 529, 22 Utah, 162, 174

examined before a committing magistrate and the testimony taken down by question and answer, in the presence of the defendant, who has, either in person or by counsel, cross-examined, or has had an opportunity to cross-examine, the witness, or where the testimony of a witness on the part of the state, who is unable to give security for his appearance, has been taken conditionally in like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined, or has had an opportunity to cross-examine, the witness, the deposition of such witness may be read, upon it being satisfactorily shown to the court that he is dead or insane, or cannot, with due diligence, be found within the state." The appellants contend that this statute is unconstitutional, within the meaning of section 12, art. 1, of the constitution, which provides that the accused shall have the right "to be confronted by witnesses against him," and that no sufficient foundation was laid for the introduction of the testimony of the witness Johnson. It appears from the record that witness Johnson was sworn and examined upon the preliminary hearing before the magistrate, and that the accused and his counsel had an opportunity, and did cross-examine him. Mr. Barrett, a person with whom Johnson was rooming at the time, and who was intimately acquainted with him, testified that he did not think Johnson was in the city; that he last saw him three weeks prior to the time of the trial, at which time he was rooming with the witness; that when he left he said he was going to Oregon that day; that he left the city about three weeks prior, and witness had not seen him since. A police officer testified that he knew Johnson, and served a subpoena on him on the 12th day of October, to appear at the trial set for October 22d. This subpoena was duly returned. Johnson said to the policeman, when subpoenaed, that he was going away, but would return. The witness stated that he had not seen him since. Mr. Sheets, a police officer, testified that he saw Johnson on the 12th of October, but had not seen him since; that at that time Johnson said he was going away to the state of Oregon, and said he would write a letter back so his address would be known; that no letter had been received from him. Witness further stated that Johnson was not in the city. Johnson's name was called in court, but he did not answer. When the case was continued from the 22d to the 29th day of October, an order was made by the court requiring all witnesses to be present in court on the 29th. Johnson was not present in court at this time. A subpoena was duly issued for him, and thereafter on the same day was duly returned, showing that, after due diligence, search, and inquiry by different police officers, the witness could not be found, and his whereabouts were unknown. Every ef

fort possible was made to find the witness, without avail. As a general rule, under constitutions like that of Utah, the accused is entitled to be confronted with the witnesses against him. As held in State v. Mannion, 19 Utah, 505, 512, 57 Pac. 542, 544, 45 L. R. A. 638, 75 Am. St. Rep. 753: "Under the constitution and statutes of the state, the accused had a right to be present at the trial, to be confronted by the witnesses against him, and to meet his accusers face to face. He also had the right to appear and defend against the accusation preferred against him in person and by counsel. He had the right, not only to examine the witnesses, but to see into the face of each witness while testifying against him, and to hear the testimony given upon the stand. He had the right to see and be seen, hear and be heard, under such reasonable regulations as the law established. By our constitution it is clearly made manifest that no man shall be tried and condemned in secret and unheard." The chief purpose in requiring that the accused shall be confronted with the witnesses against him is held to be to secure to the defendant an opportunity for cross-examination; so, that if the opportunity for cross-examination has been secured, the test of confrontation is accomplished. If the confrontation can be had it should be had. By taking the testimony of the witness Johnson in the presence of the accused upon the examination at a time when he had the privilege of cross-examination, this constitutional privilege is satisfied, provided the witness cannot, with due diligence, be found within the state. The constitutional requirement of confrontation is not violated by dispensing with the actual presence of the witness at the trial, after he has already been subjected to cross-examination by the accused, and the other requirements of the statutes have been complied with. In 1 Greenl. Ev. (16th Ed.) § 163g, p. 284, it is said: "The death of the witness has always, and as of course, been considered as sufficient to allow the use of his former testimony. The absence of the witness from the jurisdiction, out of reach of the court's process, ought also to be sufficient, and is so treated by the great majority of courts. Mere absence, however, may not be sufficient, and it is usually said that a residence or an absence for a prolonged or uncertain time is necessary. A few courts do not recognize at all this cause for nonproduction; a few others deny it for criminal cases. Neither position is sound. Inability to find the witness is an equally sufficient reason for nonproduction, by the better opinion, though there are contrary precedents. The sufficiency of the search is usually and properly left to the trial court's discretion. Absence through the opponent's procurement should, of course, be a sufficient reason for nonproduction. Illness, by causing inability to attend, has

the same effect. The phrase usually employed as a test is, 'so ill as to be unable to travel.' The application of the principle should be left to the trial court's discretion." Numerous citations of authority will be found in the notes to this section. In Finn v. Com., 5 Rand. 701, Mendum v. Com., 6 Rand. 704, and Brogy v. Com., 10 Grat. 722, witnesses who had testified on a former trial were not dead, but were out of the state, and the testimony was held to be admissible, the same as if the witnesses were dead. In People v. Oiler, 66 Cal. 101, 4 Pac. 1066, the testimony of a witness taken on a preliminary examination was admitted on the trial under a provision of the statute applicable to a deceased witness, and the statute was held constitutional. The same rule is held in Summons v. State, 5 Ohio St. 325; Howard v. Patrick, 38 Mich. 795; Mattox v. U. S., 156 U. S. 237, 15 Sup. Ct. 337, 39 L. Ed. 409; Cooley, Const. Lim. 587. The principal object of the provision in the constitution was to prevent depositions or ex parte affidavits from being used against the accused in the place of a personal examination and cross-examination of the witness, wherein the accused would have an opportunity to cross-examine, and thereby test the recollection and truthfulness of the witness, and also to compel him to stand face to face with the jury, counsel, and accused, that they might look at him and judge of his truthfulness and candor and of his testimony by his manner of testifying. As said in Mattox v. U. S., 156 U. S. 243, 15 Sup. Ct. 339, 39 L. Ed. 409: "There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards, even by the death of the witness, and that, if notes of his testimony are perImitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficient in their operation and valuable to the accused, must occasionally give way to consid erations of public policy and the necessities of the case. The law in its wis、 dom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused." Under our statute it was necessary for the prosecution to show that the accused had cross-examined the witness, or had an opportunity of so doing upon the examination, and then the testimony of such witness may be read, upon its being shown, to the satisfaction of the court, that said witness was dead, insane, or could not, with due diligence, be found within the state. The testimony tends to show that the witness could not be found, and the trial court had a right to exercise his discretion in the admission of the testimony, provided he did not abuse such discretion. The reasons giv en for the absence of the witness were rea

sonable, and were satisfactory to the trial court. We are not prepared to say that the discretion of the court was improperly exercised in the admission of the testimony of Johnson upon the preliminary showing made. We hold that the statute referred to is valid, and within the provisions of the constitution.

2. It is also contended that the information does not allege that the offense was committed in an attempt to perpetrate any arson, rape, burglary, or robbery, but simply alleges that the accused did willfully, deliberately, maliciously, and with premeditated malice, kill and murder the deceased, without setting out therein that the offense was committed in the perpetration of robbery, etc., and that evidence was admitted showing that the offense was committed while perpetrating or attempting to perpetrate a robbery, and that the charge of the court upon this subject was erroneous. Section 4161, Rev. St., reads as follows: "Every murder perpetrated by polson, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life,-is murder in the first degree. Any other homicide committed under such circumstances as would have constituted murder at common law, is murder in the second degree." Under this statute every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, premeditated killing is murder in the first degree. If the murder charged was committed in the attempt to commit a robbery, etc., it is also murder in the first degree, but in such a case no intent to kill, and no deliberation and premeditation, was necessary; the implied malice involved in the felonious intent to rob being sufficient to establish the malicious intent. The attempt to perpetrate the crime of robbery, or any other felony named in the statute, during which a homicide is committed, takes the place of and amounts to the legal equivalent of such deliberation, premeditation, and design, which were otherwise necessary attributes of murder in the first degree. This, at least, has been the holding of many courts, notably the case of Com. v. Flanagan, 7 Watts & S. 415, and Titus v. State, 49 N. J. Law, 36, 7 Atl. 621. At common law it was not necessary to charge in the indictment that the murder was committed in the perpetration of another crime in order to introduce proof showing that a felony was attempted in committing it. It was sufficient to charge murder in the common form, and then, upon proof that it was committed in the perpetration of a felony, malice, deliberation, and premeditation were

(41 Or. 25)

WILLARD ▼. BULLEN et al. (AMERICAN
BRIDGE & CONTRACT CO. et al.,
Interveners).
(Supreme Court of Oregon. April 7, 1902.)

PARTNERSHIP-ACCOUNTING.

On an accounting between partners in construction of a bridge, a charge of $500 by one of them for expenses in securing the contract for construction should not be allowed, the items thereof not being given, and he refusing to make any satisfactory explanation; nor should a judgment against them, which has not been paid, be charged as part of the cost of construction.

On rehearing. Denied.

For former opinion, see 67 Pac. 924.

BEAN, C. J. After a careful re-examination of the case, the court adheres to the views expressed in its decision heretofore given, as to the proper distribution of the fund in the hands of the bridge committee at the time the suit was commenced, the reasons for which are given in the opinion already filed, and need not be restated. The pleadings admit, however, that, as between themselves, the plaintiff and the Bullens were partners in the substructure work, and entitled to share equally in the profits thereof. The plaintiff, therefore, asks that such partnership be dissolved, and that he have a decree against the Bullens for his share of the profits.

The entire sum paid and agreed to be paid by the city for the substructure work, according to the finding of the trial court and the evidence, was $128,969.52. The actual cost thereof to the plaintiff and the Bullens is difficult to ascertain. No settlement or accounting was ever had between them, and no partnership books were kept. The only books of account were those of the bridge company, containing all their business transactions. No separate account was kept of the substructure work, although an account of the expense of constructing the different portions of the bridge is shown by the books. It is therefore difficult to determine, with any reasonable degree of accuracy, the actual cost of the substructure; but from the testimony of the parties, in connection with the books, we are of the opinion that the result arrived at by the court below, with the exception of the item of $500 for securing the contract, and the judgment of $647.65 in favor of the American Contract Company, is substantially correct. The charge of $500 as expenses incurred by the Bullens in securing the contract ought not to be allowed, because the items of such expenditure are not given, and the Bullens refused to make any satisfactory explanation thereof. The judgment in favor of the American Contract Company has never been paid, and is still an outstanding obligation against plaintiff and the Bullens, and ought not to be charged in this accounting as a part of the cost of construction. Eliminating the two items refer

(Supreme Court of Oregon. April 7, 1902.) ACTION FOR RENT-EVIDENCE-VALUE OF REPAIRS-DECLARATIONS.

1. Defendant in an action for rent of a wharf, having alleged he agreed to pay for it only so long as he occupied it, may give evidence not only that he was not in the occupancy of it, but that another was, through agreement with plaintiff.

2. Statement of defendant, who alleged he was to pay rent for a wharf only so long as he occupied and used it, that the lease was for an indefinite time, and that he did not surrender possession, is not an admission that he was to pay rent, without regard to use and occupancy, and that he continued to use and occupy it.

3. Statement by defendant to plaintiff that he had quit business, and did not want the wharf any longer, is not a self-serving declaration; he alleging that, by the terms of letting, he was to pay rent only so long as he occupied and used the wharf.

4. The value of repairs in lease of a wharf, providing the lessor shall pay the lessee the value of repairs if he is not allowed to remove them, is their value as contained in the wharf, and not what the material, if taken out, would sell for.

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr., Judge.

Action by William M. Ladd against John F. Hawkes. Judgment for defendant. Plaintiff appeals. Affirmed.

The plaintiff, as trustee of A. H. and Cordelia Johnson, brought this action to recover rents under an alleged lease. The complaint avers that in May, 1898, the plaintiff let to the defendant a wharf on blocks 1 and 2 in East Portland, at a monthly rental of $20; that defendant entered into possession thereof, and has since continued to occupy it as tenant; that the rent has been paid to May 31, 1900, only,-and prays judgment for seven months' rental, from June 1 to December 31, 1900, amounting to $140. The defendant denies the leasing and occupancy, except as stated in his answer. For a separate defense, and by way of counterclaim, he alleges that during the year 1894 he entered into an agreement with Cordelia Johnson whereby it was understood and agreed that he should pay her $10 per month as long as he occupied and used the wharf situated on block 2 in East Portland, but that he should not be required to pay anything for or during the time that he did not occupy or use the same; that thereafter, in the year 1898, he and one Swan, who was the agent for the property. entered into an A Rehearing denied June 9, 1903.