Suesser

—The defendant was tried and convicted of murder in the first degree and sentenced to be hanged, and has appealed from the judgment and from an order refusing a new trial.

The principal point relied upon for a reversal is the refusal of the court to grant a change of venue upon the showing made by the defendant. Section 1033 of the Penal Code directs the trial court to grant the change when it is made to appear that a fair and impartial trial cannot be had in the county, and when, from any cause, no jury can be obtained in the county where the action is pending. So far as this case is concerned, both provisions mean the same thing. A fair trial cannot be had where an unbiased jury cannot be had, and a juror who has an unqualified opinion that defendant is guilty, founded upon a knowledge of material facts of the case, does not possess the common-law qualifications for a juror, 'and it does not matter how that knowledge was obtained, provided the juror believed it. Indeed, the rule went beyond this. A juror was disqualified if he had made positive and unqualified statements in regard to the guilt of the defendant; and to suppose that the majority of mankind would or could act as…

concurring.—I concur in the judgment and in the opinion of Mr. Justice Temple. It is not improper, however, to say that while appellant’s counsel do not claim that he was not guilty of some crime, they do contend, with at least some plausibility, that he committed the homicide under a state of wild excitement and frenzy produced by causes entirely disconnected with the deceased, and not necessary to be here detailed, which show the absence of that deliberation and premeditation necessary to constitute murder in the first degree.