to be personally present, and to be confronted by the witnesses against him; and section 1119 of the Penal Code, so far as it is in conflict with, or in any manner abridges, these rights, or any of them, is unconstitutional and void." It is worthy of notice in this connection that in this case the defendant objected to the order of view when made by the court. The order of the court specified: "It is ordered that the jury be conducted in a body, in custody of the sheriff, to such places, and that the witness Valentine show to said jury the following places, viz: First, . . .; second, . . .; third, . . .; fourth, . . .; fifth, . . .; sixth, . . .; seventh, . . .; eighth, . . .; ninth, . .; tenth, It is ordered that the interpreter, heretofore sworn as such in this case, accompany the witness Valentine and that a copy of this order be furnished said sheriff, and be interpreted to said witness Valentine, so that he may be enabled to point out the said places.' The court afterwards modified the said order by striking out the part embraced under the fifth, sixth, and seventh heads, and made the following indorsement thereon: "The foregoing order is modified so as to strike out and omit the fifth, sixth, and seventh places mentioned therein. Judge.' An exception was taken to this action of the court, and the ruling in the supreme court was based upon the ground that the action of the court was opposed to the principle which gives to the defendant the privilege of being confronted by the witnesses against him. The statement of Judge Cooley (Constitutional Limitations, par. 319), that "in cases of felony, where the prisoner's life or liberty is in peril, he has the right to be present, and must be present, during the whole of the trial, and until the final judgment," was quoted as applicable to the issue under consideration. In the cases cited by the appellant, except that of People v. Yut Ling, supra, the order of the court was objected to by the defendant when made, and witnesses for the prosecution, by order of the court, attended at the view, and testified in the presence of the jury and in the absence of the defendant. Perhaps for that reason we find that the California cases cited discuss this subject on the theory that the view of the premises was a part of the trial, and it seems that the circumstances in these cases did in fact render it such. In the case at bar, however, the view of the premises was had on motion of the defendant. Page 673 et seq.

of record: "By Mr. Orfila (counsel for defendant): This will be an opportune time now for the jury to go to see the premises. I have no objection to the interpreter going. He can point out . . . By Mr. Dale (district attorney): The territory objects. . . By the Court: . . . If we cannot proceed any further this afternoon with the examination of witnesses, it seems that this would be a favorable time for the jury to take a view of the premises. The statute provides that whenever, in the opinion of the court, it is proper for the jury to view the place in which the defendant is charged to have committed the offense, or in which any other material fact occurred, it may order the jury to be taken in a body, in the custody of the sheriff, to the place which shall be shown to them by a person appointed by the court for that purpose. The sheriff must be sworn to suffer no person to speak or communicate with the jury on any subject connected with the case, and the officer shall return them into court without delay or at the specified time. Is there a concurrence in the matter of the appointment of a person? Mr. Orfila: I suggest Mr. Hughes, because he has been here listening to the testimony, and he is familiar with these points, and he is an officer of the court. By the Court: It would seem to me that the testimony before the jury is full enough to enable the jury to find these different points and to go themselves to the place, without the necessity of any one pointing it out to them. By Mr. Orfila: I think so. By Mr. Dale: We don't care for any one other than the bailiff. By the Court: The bailiff will not point out the place to the jury. He is not there for that purpose. He will not have any communication with the jury in relation to this case. So, upon the request of counsel for the defendant, and the court being of the opinion that it is proper that the jury should view the place in which this offense is charged to have been committed, the jury may take this time and in a body proceed in the custody of the officer, who has heretofore had them in charge, to the place, and the officer may be sworn in conformity to the statute. . . . Gentlemen of the jury, you may now proceed, and the further trial of the case will be postponed until 9:30 to-morrow morning, and you will return into the court in charge of the officer at that hour; and during this interval you will bear in mind the admonition previously given you not to talk among yourselves

or with any other person on any subject connected with the trial of this case; not to form or express any opinion until the case is finally submitted to you. You will now retire with the officer. In the California cases the defendant objected to the order authorizing the view, and such order in each instance included authority for testimony to be given in the presence of the jury and in the absence of the defendant, whereas in the case at bar the order was made on motion of counsel for the defendant, in the presence of defendant and his counsel, over the objection of the district attorney, no witnesses attended or were authorized to testify at the taking of the view, and before the dismissal of the jury the further trial of the case was postponed until the following morning, and the jurors were instructed not to talk among themselves or with any other person on any subject connected with the trial of the case, or to form or express any opinion. The case at bar thus presents a different question than was considered in the California decisions cited, and is fairly in line with those in which it has been held by the supreme courts of other jurisdictions, under similar statutes, that the view of the locus in quo by the jury, in the absence of the defendant, is not prejudicial error when made with the consent of the defendant. These cases seem founded upon decidedly the better reasoning on this subject, and while it is urged by the counsel for the appellant in this instance that, our statute granting the view having been taken from California, our legislature adopted it with the construction placed upon it by the supreme court of that state, the true doctrine is that the adoption of a statute from another state adopts with it the construction placed upon it by the supreme court of that state at the time of such adoption. An examination of our Compiled Laws will show that this provision was taken from the California statutes as early as 1877, and at that time the construction placed upon it by the supreme court of California was given in the language of the court in the case of People v. Bonney, 19 Cal. 427, wherein it was held that "The court had the discretion to permit the jury to view these physical objects, and this was neither in contemplation of the act, nor otherwise any part of the trial. It was rather a suspension of the trial to enable the jury to view the ground, etc., that they might better understand the testimony. We do not see what good the presence of the pris

oner would do, as he could neither ask nor answer questions, nor in any way interfere with the acts, observations, or conclusions of the jury. If he had desired to see the ground, that he might be assisted in his defense by the knowledge thus obtained, possibly the court would have granted him the privilege; but the fact that the jury went upon the ground without being accompanied by him is no good reason for setting aside the verdict, especially as he neither made objection nor asked permission to accompany them at the time." This construction, placed upon the statute by the supreme court of California at the time we adopted it, and therefore the construction we adopted with it, is the construction contended for by the appellee in the case at bar, and in our opinion correctly declares the law on the subject. The construction that may have been placed upon it by decisions of the supreme court of that jurisdiction after its adoption by us would have no greater weight with us than the construction placed upon similar statutes by the supreme courts of other jurisdictions. The supreme court of Nevada very fairly states the law on this subject in State v. Hartley, 22 Nev. 342, 40 Pac. 372, 28 L. R. A. 33, as follows: "Concerning a view of the premises made by the jury in the absence of the judge and the defendant, there is great diversity of opinion found in the decided cases, based upon different grounds. It is held by high authority that the judge and officers of the court, as well as the defendant, must be present; that a view is taking testimony in the case, and, when made in the absence of the defendant, is in violation of his constitutional right of being confronted by the witnesses against him; and that such right cannot be waived. Other authorities, of equal high standing, and with greater force of reasoning, hold that the right of the defendant to be present with or without the presence of the judge and court officers, if such right exists, is statutory, and not constitutional, and may be waived; that the defendant in a criminal case who asks the benefit of the provisions of a statute must take the benefit just as the statute gives it; that the view is not taking evidence in the case, and it is not intended to be so, but simply to enable the jury the better to understand the testimony given in court; that whatever the nature of the rights of the defendant may be in such case, and from whatever source such rights may be derived, he may and does waive the same when the ac

tion of the court is taken and the view made on his request, and without suggestion that he desires to be present at the view; and that in such case it is too late to complain after verdict. Shular v. State, 105 Ind. 290, 4 N. E. 870, 55 Am. Rep. 211; State v. Reed, 3 Idaho, 754, 35 Pac. 706; State v. Lee Doon, 7 Wash. 308, 34 Pac. 1103; State v. Adams, 20 Kan. 311; State v. Ah Lee, 8 Or. 217; State v. Moran, 15 Or. 262, 14 Pac. 419; Blythe v. State, 47 Ohio St. 234, 24 N. E. 268; Carroll v. State, 5 Neb. 32." The decisions of the courts of last resort in different jurisdictions on the questions presented herein have been collated and presented in the opinion of the supreme court of Utah in the case of State v. Mortensen, 26 Utah, 312, 73 Pac. 562, wherein is decided this identical question under a similar statute taken, as was ours, from California, and to which we refer as a full and able presentation of the law on this subject.

The appellant has excepted to the refusal of seven several instructions requested by the defendant, and to the definition given of reasonable doubt. The charge of the court included all of the requested instructions to which the defendant was entitled, and for that reason the court was not required to give them again on request. The definition of reasonable doubt as given in the charge was not error, but was sufficiently full and clear.

The appellant based his motion for a new trial on four affidavits that H. W. Huggins, a juror, had prejudged the case, and had in July and August, 1902, stated that the defendant should be hung, and that he would like to get on the jury, and would hang the accused. The facts alleged in the affidavits were controverted by counter affidavits of Huggins and three other persons, and the affidavit of W. H. Barnett, a fellow juror, was filed to the effect that Huggins was very reluctant to affix the death penalty, and his reluctance to do so was very largely instrumental in delaying the return of the verdict for about eighteen hours. The four affiants for appellant then filed supplemental affidavits, admitting the untruth or incorrectness of some of the facts and circumstances as set forth in their first affidavits, but realleging the statements by Huggins charged in the former affidavits. The voir dire examination of Huggins, and his affidavit, and those of Pemberton, Beck, Geddes, and Barnett, bear the impress of truth, and, in