The writing purporting to be a statement of evidence, cannot be regarded. It constitutes no part of the Bill of Exceptions certified by the County Judge.
*256The defendant filed an affidavit, and then challenged the panel of jurors “ for the reasons set forth in the affidavit.’’ The prosecuting officer demurred to the challenge, and the defendant amended by filing a separate paper. The amended challenge was a substitute for the original. But if the two could be considered as one, the- affidavit was not offered as evidence to support the challenge. Had it been, the Court below would have sustained an objection to its introduction. A witness cannot substitute his ex parte affidavit for an oral examination and cross-examination; nor can a defendant, by incorporating his own affidavit into his statement of the grounds of a challenge, make it evidence of the facts averred in the statement. The challenge is the pleading; its averments must be proved by legal evidence.
The amended challenge was denied by the District Attorney, and the only witnesses examined at the trial of the issue thus made were the Sheriff and his Under Sheriff, Potter. The County Court overruled the challenge, and we do not think this ruling should be disturbed.
Nor was there any error in overruling the challenges to the jurors Lockwood and Sigourney. That the former was unable accurately to define the word “ qualified,” does not prove that he was disqualified.
The appellant has separated from that which precedes and follows it, the following language in the charge of the Court: “If you believe, from the evidence, that the defendant was found in possession oi the mare described in the indictment, after the alleged taking, this is a circumstance tending to show guilt, but not sufficient, standing alone and unsupported by other evidence, to warrant you in finding him guilty; there must, in addition to proof of the possession of stolen property, be proof of corroborating circumstances tending to establish guilt. These corroborating circumstances may consist of acts or conduct, or declarations, or any other circumstances tending to show the guilt of the accused.”
It is objected that by this instruction a conclusive effect is given to any circumstances, however trivial, after possession is shown.
*257We do not think this criticism is justified by the words employed, and are quite sure that no such impression could have been made on the minds of the jurors by the charge as a whole. The jury had just been informed that mere possession, “ however soon after the taking,” was not sufficient to justify a conviction, and immediately afterward were told that, if the possession was proved, and there was also proof of other circumstances tending to establish the guilt of the accused, “they could consider the fact of the possession, together with such corroborating circumstances, and give them such weight as they believed them entitled to.” The Court explained the rule as to the degree of evidence necessary to a conviction in criminal cases; that the jury must be convinced to a “moral certainty,” “beyond a reasonable doubt;" and at the request of defendant, charged: “All the circumstances must not only be consistent with defendant’s guilt, but inconsistent with any other rational conclusion.”
Thus, the context considered, the charge in effect declared that mere possession of stolen property would not justify a verdict of “ guilty;" that there must be proof of other facts tending to establish guilt, and all the facts must prove guilt beyond every reasonable doubt.
Judgment and order denying a new trial affirmed.
Mr. Justice Rhodes did not express an opinion.