dissenting. — Upon the points discussed, my views are briefly these:
First — That an opinion formed from newspaper reports does not disqualify a juror when it is such as will yield to the evidence which may be adduced, and it appears that he *441can give the defendant a fair and impartial trial; that “all men,” as Butler, O. J., said, “take newspaper statements as current news, liable to qualification, explanation or contradiction, and when qualified, explained or contradicted, they change their opinions or belief accordingly as a matter of course”; so that the opinion which should exclude a juror must be of a fixed and settled character; showing that his mind is not open to the reception of testimony and partaking, in fact, of the nature of a prejudgment, and finally, that the trial court has a better opportunity to judge of the juror’s fitness and competency upon the whole examination conducted in its presence and hearing, than can the appellate court from a bare inspection of the record alone.
Second — That the motion for a change of venue on account of prejudice alleged to have been produced in the public mind by exaggerated newspaper reports that would prevent the defendant from having a fair and impartial trial, controverted by counter-affidavits on behalf of the State to the effect that the accused could have a fair and impartial trial, and that a jury could be selected from the body of the county, was addressed to the discretion of the trial court, and is notreversable error, except for manifest abuse and injustice; that the books abound in cases which show upon applications of this kind, that where, soon after the killing, false and exaggerated statements are alleged to have been published concerning the transaction in newspapers of general circulation in the county, and that these publications reflected severely upon the defendant’s character and greatly inflamed the public mind and prejudiced the people against him, controverted by affida vits on behalf of the State to the effect that the affiants were acquainted with the feelings and sentiments of the people, and that no excitement or prejudice existed against the defendant which would prevent him from having a fair and impartial trial; that such applications are addressed to the discretion of the trial court, and refused to interfere, and that, except in special cases, any interference of the appellate *442court is more likely to result in a failure of justice than in depriving tbe accused of a fair and impartial trial.
Third — That this court cannot review, as has been done in this case, the determination of the trial court upon a motion to set aside the verdict on the ground of the insufficiency of the evidence, because (1) such motion is not reviewable in the appellate court, and that it has been its constant practice from State v. Fitzhugh, 2 Or. 230, to State v. Clements, 15 Or. 243, in which Thayer, C. J., said, as to the identical point now raised: “This court long ago held that a matter [motion to set aside the verdict] of that character is not reviewable. Counsel, however, continued, from time to time, to persist in urging such questioiis upon the consideration of this court, and seem to think that unless they are able to raise them, judgments are liable to be given without sufficient evidence in law to sustain them. But such results are not liable to follow if counsel will properly present them. This court will not uphold a judgment where the evidence is not sufficient in law to justify its rendition, if the question is properly made, which can he done by a motion at the trial to discharge the defendant upon that particular ground and including all the evidence in the bill of exceptions tending to establish his guilt. So, also, a question regarding the sufficiency of the proof of a particular fact in the case may be reviewed here,, but it must be raised by an exception at the trial. Should the trial court say to the jury that if they found such and such facts, and there was not sufficient evidence in law to authorize such finding of all or any of the facts thus submitted, an exception in either case could be saved and made available. All the evidence, however, would have to be certified to this court, bearing upon the same, in the statement of the exception; and the statement in such case must purport to contain all the evidence upon the point. This court has nothing to do with the rulings of the trial court upon a motion for a new trial or to set aside the verdict of the jury. It deals only with questions of law, and they must be squarely presented as such.” Because (2) the rule as thus *443declared and steadily maintained is better adapted to protect all the legal rights of the accused, and to meet the ends of justice by presenting the particular matter or point, as here, the fact of premeditation and the evidence in respect to it alone, so that the appellate court can examine and pass directly upon it without wading through a voluminous mass of other matter about which there is no controversy. Because (3) the determination of the trial court cannot be reviewed for the reason, as Story, J., said, that ‘ ‘it is not a matter of absolute right in the party, but rests in the judgment of the trial court, and is to be granted only when it is in furtherance of substantial justice; but that the case is far different, upon a writ of error, bringing the proceedings at the trial by a bill of exceptions, to the cognizance of the appellate court. The directions of the trial court must then stand or fall upon their own intrinsic propriety as matters of law.” As such ruléis operative to prevent a judgment without sufficient evidence in law to sustain it, it ought to stand and its reversal will be apt to needlessly multiply new trials, and perhaps to cause a failure of justice. Because (4) that the cases referred—State v. Cody, 18 Or. 506, and State v. Hunsaker, 16 Or. 497,—are not authorities to look into the case and pass upon the sufficiency of the evidence upon a determination of a motion of this character; but that the first, State v. Cody, was brought to the cognizance of the appellate court upon an exception to the trial court’s refusal to direct a verdict for the defendant and that he be discharged, or that the court instruct the jury that the defendant could not be convicted of the crime of mayhem, for that the evidence was insufficient to justify the same, and not for the refusal of the trial court to set aside the verdict; and in the other, State v. Hunsaker, while Strahan, J., expressed his personal opinion to that effect, the court did not decide and he expressly added: “But we do not consider or decide that matter now.” So that there is not only no authority in our practice to justify it, but the rulings, as already shown, have been constantly the other way.
*444But if these precedents are to be disregarded and overturned to meet the exigency of the case at bar, and the evidence examined upon a motion for a new trial after verdict, then (5) my contention is, that there is evidence, disclosed by the record, of facts and circumstances tending to show premeditation; that the evidence shows that the parties had had a previous quarrel and fight; that after-wards, and upon the day of his death, Weber called upon one Sliter and told him that the defendant Olds could no longer continue to run the game over the Crystal Palace saloon, and that Sliter communicated this information to the defendant Olds, and requested him to leave the city; that Olds walked up Third street to the corner of Alder, and that at the time he was armed with his 'pistol in his right-front pants pocket, and that he had his hand on it, and there met Weber and said to him: “I hear you have been about town looking for me?” and, before Weber could make full reply, commenced firing, and after shooting four bullets into him, after his victim lie dead, or dying, at his feet, threw back his coat, put in his revolver, then took out his handkerchief and calmly took off his hat, wiped his brow, wiped his hat, walked around the body, and before leaving saying, “Now, you s— of a b — , you have got me!” tending to show that his mind was made up to answer his own inquiry in the way it was done before Weber could reply. One witness, when asked, “What time would you say elapsed between the time Olds addressed the remark, ‘Mr. Weber, I understand you have been looking for me,’until he fired the shot?” answered that “it was alinost instantaneous, ” and that Weber had hardly completed his reply, “You s— of a b — , what do you want with me?” when the first shot was fired, tending to show that the question was not asked to elicit an answer, but that it was asked and followed so instantly by pistol shots as tended to indicate that the purpose to take Weber’s life was already formed when it was done. When all the facts are taken together — the fight which had preceded; Weber’s conversation with Sliter, which he had *445imparted to the defendant Olds, and which, indicated a purpose to break up his gambling game; Olds going armed to the corner of Alder street, his stopping there, and when Weber came along addressing to him an inquiry that tended to show that what Sliter had told him was then in his mind, but followed so quickly by pistol shots as tended to indicate that no reply was expected, but that he was executing a purpose already formed, and his manner after the killing, so comparatively free from excitement or passion, deliberately putting back his revolver into his pocket, calmly wiping his brow, his hat, and walking about his victim — leaves him with the remark: “Now, you son of a b — , you have got me”; or, as the facts would seem to tie together, you have been looking for me and now you have got me, tending to indicate a state of mind that was not acting on the impulse of the moment, but exercising a purpose already formed with deliberation to insure certainty in its results.
It may be that there is testimony of other witnesses which would contradict this, or from which different inferences may be drawn, or which would tend to support some other theory, or from facts admitted and even undisputed as to what is the proper deduction, where different men equally sensible and impartial would make different inferences, but that only serves to show that the law commits the case to the decision of the jury and not the court. For, in passing upon the sufficiency of evidence by a court, “it must be assumed,” said Judge Dillon, “that all the evidence in the case is true, and that the witnesses are all credible, for if there are questions relating to the credibility of witnesses, or if what the evidence proves depends upon the credibility of witnesses, or upon the proper deduction to be drawn from the evidence, these are questions not for the court but for the jury under the direction of the court. ” That rule applied to the evidence disclosed by this record makes this a case for the decision of the jury and not for the court, as it is their province to decide *446questions of faef, as it is of the court to decide questions of law.
Fourth — That the testimony of Weidler is merely cumulative, and'that there is sufficient evidence to support 'the verdict without it, and therefore, its admission, conceding it to be incompetent, was without prejudice and is •not reversible error.
Fifth — That the remarks attributed to the district attor-iney as improper and inserted in th'e record, were not excepted to and brought to the attention of the trial court for its decision, and cannot now be raised for the first time in this court within the ruling and decision in State v. Abrams, 11 Or. 172, in which Watson, J., said: “Some of the remarks attributed to Mr. Dorris were undoubtedly improper and can hardly be condemned with too much severity. But however reprehensible, there is one insuperable obstacle to their being considered here as ground for reversal — they involve no error in the court below. We have announced this principle before. State v. Anderson, 10 Or. 448, and we now lay it down as a rule, to which there is no exception, that no objection to proceedings in the court below can be heard in this court which is not based upon alleged error in judicial action on the part of the lower court.”
In view of these considerations, much as I regret to differ with my associates, as I understand the law and the practice so long and steadily adhered to by this court, I cannot consent to disregard and overturn them, and have, therefore, no other alternative than to dissent.