delivered the opinion of the court.
This is the second time this case has been here; and the circumstances attending the second trial, and the whole affair, indeed, has been of such a character as to greatly embarrass the court in its determination of the questions involved. This court has no authority to review the determination of trial courts upon questions of fact where the evidence is conflicting; but it has authority to look into a case where there has been a criminal conviction, in order to ascertain whether there is evidence to support the conviction, and to ascertain whether or not the accused has had a fair trial. State v. Hunsaker, 16 Or. 497; State v. Cody, 18 Or. 506. Every person charged with a public offense whether guilty or not is entitled to a fair trial. “Because,” as said by Mr. Bishop in 1 Criminal Procedure, § 10, “a guilty man has, by the law itself, a right to be acquitted, unless he can be convicted by virtue of the rules and methods which the law has itself provided. ” In order to insure such a trial, the constitution of this State, section 11 of article I, has provided: “In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed,” etc. The securing to parties accused of crime a fair trial by an impartial jury, especially in capital cases, has ever been the solicitude of the common law. Blackstone says: “It was necessary for preserving the admirable balance of our constitution to vest the executive power of the laws in the prince; and yet this power might be dangerous and destructive of that very constitution if exerted without check or control by justices of oyer and, terminer occasionally named by the crown, *428who might then, as in France and Turkey, imprison, dispatch or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that no man should be called to answer to the king for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow subjects, the grand jury; and that the truth of every accusation, whether preferred in the shape of indictment, information or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks (which none will be so hardy as to make), but also from all secret machinations which may sap and undermine it, by introducing new and arbitrary methods of trial by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers well executed are the most convenient), yet let it be again remembered, that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that although begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous concern.” 4 Black. Com. (Cooley’s Ed.) 350-1.
The importance of any immunity, however, does not depend so much upon constitutional guarantees as it does upon their observance and enforcement.
The violation of the spirit of the law is as pernicious in its consequences as the violation of its letter. The right of th/% accused in a criminal case to a trial by jury would be of little advantage if the jury had to come from a community biased and prejudiced against him by influences *429which, he was unable to countervail. Such a condition of public sentiment in a community renders it impossible, many times, to enforce a due administration of law; and it is often produced by the publication of intemperate newspaper articles. It is extremely unfortunate to the cause of justice that many of the newspapers of the country pursue the course they do with reference to cases of homicide. They seldom fail to designate the transaction as a murder, which of itself is a judgment, to the extent of newspaper jurisdiction in such matters, that the slayer is guilty of that crime without regard to the circumstances connected with it. And they usually publish not only a detailed hearsay statement of the affair, but decidedly indicate their own views regarding it. The result is, that by the time the accused is arraigned for trial, the reading portion of the community have generally formed and expressed an opinion concerning his guilt or innocence; which renders it very difficult to secure an intelligent and unbiased jury to try him by. In the case under consideration, the newspapers referred to in the appellant’s petition to postpone the trial, and for a change of venue, assume, I should judge from the tenor of the articles made exhibits, to decide how the case should be disposed of. The publishers of those sheets appear tq have established a tribunal of their own in which to try the accused; and in view of the extensive circulation of those papers, and their high standing as public journals, it is difficult to conceive how an impartial jury could be secured from the county where they are published, by which he could be tried, especially after two trials had already been had. Under these circumstances I cannot see why the trial court should have refused a change of venue. It is apparent, then, that a great proportion of those who would be likely to be summoned as jurors would be found to have formed and expressed an opinion as to the guilt or innocence of the accused; an opinion superinduced by the reading of the published statements of the witnesses examined on the former trial, and positive comments made by the publisher.
*430There were two questions in the case to be tried — First, was the accused justified in killing Emil Weber? Second, was there sufficient evidence in the case to show that the killing was done with such deliberate and premeditated malice as to constitute murder in the first degree? That Weber had been abusive and overbearing towards Olds, had made it a point to insult him whenever an opportunity presented itself, and that the latter submitted to it meekly except when assaulted by force, is clearly shown by the testimony. What the cause of Weber’s animosity was does not appear except from the statements of Olds himself. He testified'that he was born at Cold water, Michigan; that he lived there until he was twenty years of age; that he went from there to Chicago, where he traveled two years for a wholesale house; that he then went to Colorado and from there to New Mexico; that in the first place he was in the contract business; that he built or was sub-contractor of five miles of the Atchison and Topeka railroad, the New Mexico branch; that he then went into the livery business at Las Vegas, New Mexico; that from there he went to Leadville, where he had his first experience at gambling; and after various perambulations, in May of 1883 arrived in Portland, where he had since resided; that he got acquainted with Weber when he first came to Portland, the latter having come there about the same time and kept a saloon and gambling house; that the first trouble accused had with Weber was in 1885; that it was over the city election; that they had been on opposite sides; that the next day after the election accused called at Weber’s place of business and was refused admission into the gambling department, and that Weber used abusive language towards him and threatened to have him vagged; that accused said to him: “Mr. Weber, you have a big gambling house here, are worth plenty of money, and I am a poor man; of course you have that privilege”; that Weber told him not to come near his house any more, and that he did not go there again while he kept it; that it was closed about a year and a hall after that, and he sold or leased it to other *431parties; that in 1887 or ’88 Weber undertook to indict the police, and accused was subpoenaed to appear before the grand jury; that Weber found it out and came and wanted to dictate to him what he should testify to; this he refused to submit to.
The accused then proceeded to describe minutely Weber’s course of conduct toward him thereafter, which was bitter and malicious in the extreme; and which no doubt led to the commission of the homicide. It is evident from the testimony in the case that Weber aspired to be a sort of leader among the class with whom he associated. He may not have been a bad man at heart, and probably was respectful and courteous to his superiors; but he had accumulated property, and like many others, became insolent and arrogant toward those whom he regarded as his inferiors in position, when they opposed his views and wishes. His vocation was calculated to make him morose and irritable. He was engaged in an irrepressible conflict with the police force, was at variance with his own fraternity, and seems to have concentrated all his spite and wrath upon Olds; and after the latter had beaten him in the fist fight in which he, himself, was clearly the aggressor, he indulged in the numerous threats of violence against him shown in the testimony. These threats may have amounted to nothing more than bravado and swagger; but with such a man as Olds, who was of a taciturn and impressible temperament, and probably remorseful on account of the false and ruinous step he had taken in life, they appeared portentious; but whether or not he was justified in taking his life under the proofs in the case, was purely a question for the jury. The right either of the State or of an individual to take human life must be sanctioned by law. In the latter case it must appear that it was done to prevent the commission of a felony upon the individual, etc., as provided in section 1730, Ann. Code. The killing, however, if not justifiable, is not murder in the first degree unless done purposely and of deliberate and premeditated malice, or in the com*432mission or attempt to commit rape, arson, robbery or burglary; and there must be some other evidence of malice than the mere proof of killing to constitute murder in the first degree, unless effected in the commission or attempt to commit a felony; and the deliberation and premeditation necessary in such a case, must be evidenced by poisoning, lying in wait, or some other proof that the design was formed and matured in cool blood and not hastily upon the occasion. This is the effect of the provisions of the statute of this State upon the subject. Section 1727, Ann. Code. It therefore devolved upon the prosecution in this case, before the jury would be warranted in finding the accused guilty of murder in the first degree, — there being no pretense that the killing was done in the commission or attempt to commit a felony, — to prove facts aside from the fact of the killing, the direct and legal tendency of which was to establish that Olds in cool blood formed a design to kill Weber and that the killing was done in pursuance thereof. It is not enough in such a case to prove circumstances from which inferences might be drawn that the design was so formed, as the statute requires that either the mode of the killing is of a character that it, of itself, proves deliberation and premeditation, such as poisoning, or that some special proof of a distinct fact be made, such as lying in wait.
It is claimed by the learned district attorney, that, from the evidence, Olds gave Weber the beating referred to; that Weber called upon Sliter and informed him that Olds could no longer continue to run the game he was then running over the Crystal Palace saloon; that Sliter informed Olds of this and requested him to leave the city for awhile; that Olds walked up Third street to the corner of Alder, where he met Weber, and the killing was done as described in the testimony for the State, and the various circumstances transpired as therein mentioned, it clearly appeared that Olds killed Weber for the reason that the latter had been hunting around town for him, and for what he had said to Sliter. The several points in the testi*433mony which, the district attorney urged at the hearing with great force, as evidence that Olds had in cool blood formed the design to kill Weber, were important matters of proof in the case, but that they were sufficient to establish that Olds was lying in wait to commit the homicide, cannot be maintained. “Lying in wait,” according to Bouvier, is “being in ambush for the purpose of murdering another.” It implies a hiding or secreting of one’s self. It could hardly be claimed that a person walking on a public street in broad daylight in a populous town was lying in wait. I do not think, however, that the statute requires proof that the slayer in such case was secreted; but it requires proof of some fact, aside from the killing, showing that it was done in pursuance of a previous design. Olds having gone to the place of the homicide in the manner he did, and under the circumstances existing between himself and Weber, was no stronger proof that he went there to slay Weber than it would have been that Weber went there to kill him if he had been the slayer. It was not pretended that Olds had ever made threats against Weber or evinced any intention whatever before the time of the fatal meeting to commit violence upon him; he seemed to acquiesce in Sliter’s suggestion to leave town, and never, so far as appears from the testimony, did he breathe a breath of vengeance, or even utter a word of complaint. Nor does it appear that Olds had any expectation of meeting Weber on that day; he had, in fact, been trying to avoid such meeting; upon the night previous, according to his own testimony and that of Richter, he remained up stairs until a late hour to keep clear from him; and apprehensive that the latter might be lying in wait to do him bodily injury, went a long distance towards his stopping place between Richter and Lynch. Again, if Olds had intended to murder Weber, had planned to take his life, he would not have been likely to have chosen the time and place where the killing was done to execute his purpose
It was vehemently contended by the district attorney in *434his address to the jury, that the gamblers in Portland were at the bottom of the affair; that they had compassed the death of Weber, had employed Olds to carry out their design, and raised money to clear him and defeat the ends of justice. And he strongly intimated that the police force of the city had lent its aid and influence to further the scheme. The following extracts from the remarkable address will show the position which the district attorney occupied at the trial respecting that feature of the case:
“Men of Multnomah county: Will you stand forth and say, that because these men have sent forth the ukase that Weber should die and that The man who killed him should be defended by their money and influence and by their power and by their perjury — do you mean to say that because they have decreed the sacrifice, that you will execute their behest?” “But Weber had made an effort to quit that business and get into a business lawful and legitimate, and because he did so he was murdered,— because he attempted to stop the wheels of the chariot of King Faro and King Poker, driven by Gratton and Sliter and Olds. I don’t know what his motives were. They may have been selfish; but grant it; he was undertaking to suppress something that was against the law; and because he told them he would do it, they killed him and shot him down, and they are now rallying around the standard of their twin brothers, King Fayo and King Poker.” “Is it not a shame and a disgrace that men who are on the police force of the city of Portland are able, day after day, to patrol their beats,- knowing the existence of gambling in this community, knowing where it is, knowing its devotees, conversing with its devotees, walk calmly and placidly into a court of justice, raise their hands to the tribunal of God, when that same hand had formerly been raised to support and sustain the law, and take an oath that these men with whom they associated,— gamblers, all of them, — that Weber’s character was bad and Olds’ character was good. Gentlemen of the jury, I submit these facts to you; I state the facts. You draw *435your own conclusions.” “Was this case to be prosecuted, or was it a case for the public prosecutor to come into court and say: ‘Most grave, reverend and worthy senior Olds, my most approved good master, led by Vernon and led by Gratton and the balance of your kind, I apologize most humbly to you, I crave your humble pardon. It is true that you were armed with a deadly weapon; it is true that you stopped a man on the streets; it is true you sat on the fire-plug and waited for him; it is true that you were waiting there with your hat over your eyes, with your eye turned toward Second street waiting for him to come; it is true that Sullivan and Col. Weidler saw you there; but my dear good fellow, the police say you are a good man, and I know you must be a good man or they would not say so. Go thou and enjoy the peace of the land, King Faro and King Poker, and the balance of the kings, that go to rob manhood and womanhood of its honor and integrity. “I repeat again that Emil Weber, dead, is a grander character m my judgment, is a grander character in the judgment of every law-abiding citizen of this county, is a grander character to day with the hand of every one of these scoundrels against him in court, than he would be living with every one of them for him. O, for a new Christ that would enter this temple of justice to day, saying as of old, ‘My house is a house of prayer, but you make it a den of thieves. ’ That is what they would, do with this court-house; they have commenced to undermine the foundation of justice; they have raised a sack; the cry has gone forth; Seattle has been rallied, Tacoma has been rallied, Spokane has been rallied, and with Portland gamblers have joined hands to defeat the ends of justice and to let this gambler go unwhipped of justice in order that King Faro may rule, and that every man may be deterred from undertaking to stop him in his course.” “Gentlemen, this case is now with you. The people will not be deceived; they cannot be deceived; they know where the right is, and you know where the right is, too. You know the element that are to day contesting in this court for supremacy. You know *436that on the one hand is law and order, and on the other hand is riot and bloodshed and disorder. You know that those two things are trying to gain the supremacy in this county. You know that one or the other will rule. If Charles Olds is allowed to go forth with your verdict registered one iota less than charged in this indictment; if it is said of him that he did not commit deliberate and premeditated murder, the shout will go forth to Spokane, the shout will go forth to these various places that Mult-nomah county juries will not convict gamblers, when they are clearly proven to be guilty; that Multnomah county juries will not do their duty in this regard, but that they will shirk it.” “Can anybody dispute it? Has it not come to be, as I said, a by-word and a reproach that in the administration of the criminal law in these United States of America, the murderer frequently goes free?” “Unfor-nately is it not found that there are jurors who do not do their full duty? Because you know the tactics of the gambler, the State needs twelve jurors to convict, and he only needs one. That is the test that is what has brought jurisprudence in this country into disrepute. That is what has caused the legislatures of various States to pass laws to try, if possible, to execute laws and to prevent money and power and wealth from impeding and stopping the goddess in dealing out her even-handed justice to all.”
These are only a few excerpts from the address and were not all taken in the order in which it was delivered; but they are a faithful index to its tenor and spirit. It was a remarkable diatribe; it was a powerful invective against the gambling class, a severe criticism upon the police of the city, and also, indirectly, a damaging reflection upon the officers charged with the administration of the criminal law of the' county. The eloquent attorney seems to have occupied the position of Samson when he pulled down the temple of Dagon on the heads of the Philistines, “and it fell upon him also.” If the assumption that the attorney indulged in, that the gamblers of Portland had conspired to take Weber’s life and Olds *437shooting him was a part of the conspiracy, could have been sustained it would have established the latter’s guilt of the crime charged in the indictment beyond any question; but when he appeared in this court and attempted under the evidence to justify the verdict of murder in the first degree, he was unable to point out wherein it supported the assumption to any extent whatever; and there seemed no other excuse for his engaging in such extraordinary hyperbole than an excess of zeal bordering on frenzy. The proof, however, showed that some of the witnesses on the part of the defense were gamblers, and that they had assisted to raise a sum of money to aid Olds in his defense, which of course tended to impeach their testimony. The claim of the district attorney that the gamblers had conspired to take Weber’s life and raise a fund to secure Olds’ acquittal and corrupt the foundation of justice, seems to have been predicated, in the main, upon the testimony elicited from Thomas Williams on his cross-examination. The witness had testified as to threats made by Weber against Olds, and in regard to Weber’s bad character and Olds’ good character. It appeared that the witness, among other occupations, had been engaged in the gambling business. He also testified that he had taken a good deal of interest in the case, had raised money for the defense amounting to about three thousand dollars, about half of which he contributed himself; that he visited Seattle and Tacoma, and had written to Spokane Falls in the interest of the accused. Upon his re-direct examination he was asked to state the reason why he took this interest in Olds, and he answered: “Simply because’he asked me to. He sent for me after this man was killed; I guess I was the first man that saw him, and I think I was about the only gambling man in the town at the time. He sent for me, and I went to the city jail to see him, and he told me what had happened, and he says: T haven’t gpt a quarter; will you do what you can for me?’ I told him I would, and I made my word good as near as I could.” The witness further testified that he had been feeding *438Olds while he was down stairs, sending his meals to him. The harangue of the district attorney to the jury was highly sensational, and served, no doubt, to incite their passions and prejudice against the accused; but, unless justified by the evidence, was quite out of place. The trial of a fellow-being for murder, where the penalty is death, devolves a grave responsibility upon the attorney for the State as well as upon the court and jury, and a conviction should never be urged unless justified by the proof, fairly weighed and considered. It is to ascertain the truth and apply the law, and a resort to imagination or fancy in order to incite the passions and prejudices of the triers, is a deviation from the true and proper course. To convict and put to death a human being through the influence of prejudice and caprice is, morally, murder, and more pernicious in its consequences, by far, than the escape of a guilty person; and the forms of law should never be prostituted to such a purpose. It is claimed by the counsel for the State that the manner of the accused when he did the shooting, and the language made use of by him, showed deliberation and premeditation. But I do not think that what he did or said on that occasion proves that he had previously designed to take the life of Weber. His having the appearance of being cool, his firing the number of shots he did and the remark he made after "Weber was killed were acts as liable, or even more so, perhaps, to attend upon a hastily-formed design to kill, as upon one formed in cool blood. Said counsel also claims that as the trial court was not called upon to make any ruling regarding the sufficiency of the evidence to warrant the conviction of murder in the first degree, no question can therefore be made upon that point in this court; that the question must be raised there before it can be considered here.
It has been held repeatedly by this court that it had no authority to review the decision upon a motion for a new trial; and has been indicated very strongly a number of timos that the question as to the sufficiency of the evidence *439to support the judgment or conviction, must have been first passed upon in the trial court. But whether that rule should be adhered to in a capital case has never before, that I am aware of, been pressed upon the attention of the court. I have always been of the opinion, since my attention was called to the matter, that where the evidence in a capital case is shown to be clearly insufficient to warrant a conviction, it would be the duty of this court, under its supervisory power over the circuit courts, to reverse the conviction and order a new trial. If, for instance, a case were brought here where the accused had been convicted of murder in the first degree and the evidence showed affirmatively that the corpus delicti had not been proven, we could not, it seems to me, affirm the conviction. The counsel for the appellant cites in his brief a number of decisions from the courts of other States to the effect that the appellate court will not apply in capital cases the rules which govern trial courts in other cases with the same strictness, and I am of the opinion that such a rule should obtain here. I think it the duty of a trial court, at all events in a case of murder, where the evidence is not sufficient to warrant a conviction of the highest grade of the offense charged, to instruct the jury of its own motion to that effect. “It is,” says Blackstone, “the noble declaration of the law that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular.” Black. Com. (Coolers ed.) *354.
I have thus far omitted any reference to the testimony of the witness Milton Weidler contained in the statement herein. The district attorney seemed to rely upon this testimony, in his argument to the jury, as proof that Olds was lying in wait to kill Weber, as it appears in one of the extracts from his speech above set out. That testimony, however, was clearly incompetent, as the witness would not swear that the man he saw standing by the fire-plug was Olds, and could not describe the man further than that he was a heavy-set man, and the court committed palpable error *440when it allowed the witness to testify to wbat he said to his friend as to his belief that Olds was standing on the corner when he passed. If the witness had seen Olds standing at the place at the time referred to, his testimony to that effect would necessarily have been damaging to the accused; but he could not swear, nor describe the man he saw so that he could be identified as Olds. He should not, therefore, have been permitted to eke out his evidence on that point by testifying to the expression he made use of when he heard the announcement that Olds had shot Weber, regarding his mental impression that the man he saw standing on the corner was Olds. It was a mere surmise on the part of the witness, yet admitting it in evidence under the particular circumstances was highly prejudicial to the accused.
There are other questions in the case which have been discussed, but it is not necessary to specially consider them. The counsel for the accused had the right to have the two instructions requested by them given in some form to the jury; whether they were included in the instructions given may be questioned, but the solution of that question is not necessary to the decision of the case, and probably will be obviated in the future.
After a thorough examination of the facts in the case, I am constrained to believe that the accused has not had such a trial as the law accords to parties charged in capital cases. That he is a gambler and a worthless member of community, may be true; but he is on trial for his life, is within the pale of the law, and the courts can do no less than to require that the law be administered in his case as in all others — in accordance with its letter and spirit.
I am of the opinion that the judgment of conviction should be reversed and the case remanded for a new trial.