stated by Mr. McClain (1 Crim. Law, § 157) as follows: "As indicated in the preceding paragraph, there are some cases which lend countenance to the idea that an irresistible impulse to the commission of the crime will be an excuse; but in many cases, and, indeed, by a great weight of authority, irresistible impulse or uncontrollable passion is held not to be a defense. Where the criminal has sufficient mental capacity to distinguish between right and wrong, mere passion or frenzy produced by anger, jealousy or other passions will not excuse. There may, indeed, be insane impulses which are so far uncontrollable that there is no criminal liability therefor, but they must be shown to be the result of a diseased mind, and not merely of passion or impulse, though it is said in one case that uncontrollable impulses, due to provocation and disappointment, exaggerated by a disordered mind, might be taken into account to relieve the degree of homicide. But what is called moral or emotional insanity is distinctly repudiated as an excuse in perhaps all the cases in which such defense has been directly considered." In further support thereof, see State v. Hansen, 25 Or. 391 (35 Pac. 976, 36 Pac. 296); Goodwin v. State, 96 Ind. 550; McCarty v. Commonwealth, 24 Ky. Law Rep. 1427 (71 S. W. 656). Thus it is obvious that a paroxysm of jealousy, or sudden anger or frenzy of temper, provoked or superinduced by the intelligence that the accused had been abandoned by his mistress, the object of his lustful affections-he being otherwise in possession of his mental faculties, unimpaired by disease or unbalanced by heredity-will not relieve him of criminal responsibilty; and the trial court's rulings or observations were in accord with this understanding of the law. The rule was pithily stated, with something of epigrammatical emphasis, but there was no purpose manifest of attracting any particular attention to that phase of the case any more than to any other. 2. The court distinctly stated that any evidence tending to show insanity would be admitted, and, to that end, that it would allow the acts and conduct of the defendant to be proven, as well as any communications made to him relative to the deportment of the woman. This gave ample scope for maintaining the defense interposed, and, when taken in connection with the general charge that the jury had a right to take into consideration the condition of mind of the defendant at the time he committed the homicide, as bearing upon the degree of the offense of which he was guilty, it is manifest that there was no error of which he could complain. The only other error assigned arises from the conduct of John Page, who sat on the jury. The following is his examination, and the answers elicited on his voir dire: "Q. I will ask you if you have heard or read anything about this case? A. No, sir Q. Did you read anything about it in the newspapers at the time it is alleged to have happened? A. No, sir; I believe not. Q. You knew there was such a case on the docket, did you? A. I did. Q. I will ask you if, on or about the 6th day of September, when this alleged offense is supposed to have happened, if you heard the matter discussed any? A. No, sir. Q. Then you know nothing about what purports to be the facts in this case? A. Not a thing. Q. I will ask you, if you were accepted as a juror in this case, you'd be willing to go into the jury box and eliminate any impression, if you have one, as to the guilt or innocence of the defendant, and try the case solely upon the evidence, and the law as given you by the court? A. Yes, sir." Being accepted by the defendant, the district attorney further examined him as follows: "Q. Have you any conscientious scruples against the infliction of capital punishment for murder? A. Not at all. Q. Have you ever been a close friend of Mr. Brownell or Mr. Dimick? A. No, sir. Q. Are you acquainted with any of the witnesses in the case? A. Carll is the only one I know. I don't know any of them, only Carll. Q. Do you know any reason why you could not give both sides an absolutely fair and impartial trial? A. I could. Q. You could? A. Yes, sir. Q. Have you no opinion at all? A. None whatever." After verdict the defendant moved to set it aside and for a new trial on the ground, as alleged, that the juror made false answers to the questions thus propounded to him touching his qualifications to sit as a trior in the cause, and therefore he was not accorded a trial by a fair and impartial jury. To prove the falsity charged, the affidavits of Henry W. Trembath and G. B. Dimick, one of the counsel for the defendant, were produced. Trembath is a constable, and took charge of the defendant very soon after the tragedy; receiving him from the father of the deceased, who then had him in custody. He swears that, immediately after he received the defendant into his custody, the defendant informed him that his (defendant's) gun or pistol, which he then had in his pocket, contained only one loaded shell, and that he had shot four loads into the body of the deceased; that he (affiant) was subpoenaed as a witness, and testified before the coroner's jury relative to what the defendant had told him; that immediately after the inquest he met Page, the juror, in front of the courthouse, and there talked with him, and told him all about the shooting of the deceased, and also what the defendant had told him (affiant) in regard to the loaded and empty shells remaining in the pistol, and, in fact, all that he had testified to before the coroner's jury. Further, he swears that he related to him all the facts, as he (affiant) understood them, leading up to the homicide; that thereafter, about the last of September, 1904, affiant again met Page in the sheriff's office, and there talked with him about the shooting, wounding, and killing of the deceased by the defendant; that the affiant was in the courthouse when Page was drawn on the panel as a juror; that he was asked, while being examined touching his qualifications, if he was acquainted with any of the witnesses for the State (the names on the information being read to him at his request, that of affiant among the rest); and that he answered that Dr. Carll was the only one. The affiant further deposed that he had been acquainted with Page for a long time prior to the date of the killing. Dimick deposes that on or about December 1, 1904, Page admitted to him, in the presence of Trembath, that he had talked with the latter about the case prior to the trial. In refutation of this showing on the part of the defense, the State produced the affidavit of Page, and another from Trembath. Page avers that he has no recollection of ever having talked with Trembath or any other person about the shooting of deceased by defendant; that he had not at any time expressed an opinion as to the guilt or innocence of the defendant to any person or persons; that he had no knowledge of the facts, or of what purported to be the facts, relative to the homicide, prior to hearing the evidence at the trial; that he never admitted to having talked with Trembath or any other person about the facts of the shooting in the presence of Dimick and Trembath, or any other person or persons; that he never knew Trembath by the name of Henry W., but was slightly acquainted with him by the name of Harry, by which latter he was commonly known; and that, when the name Henry W. Trembath was read to him from the information, he did not know that it referred to the same person as Harry Trembath. Trembath avers that he was in the office of Dimick at the time referred to by the latter in his affidavit, and that Page never stated at that or any time, in his presence, or in the presence of Dimick and himself, that he had ever talked with Trembath about the case, nor did he in any manner admit the same. This constitutes all the material proofs pro and con touching the alleged misconduct of the juror. 3. The exact function of the trial court as a trior of a juror's qualifications before trial, and the principle upon which its action in that regard may be revised, have been firmly settled in this State: State v. Saunders, 14 Or. 300 (12 Pac. 441); State v. Armstrong, 43 Or. 207 (73 Pac. 1022). As the trior of a juror's qualifications after verdict, when attacked for bias or prejudice rendering him unfit to sit in the cause, the function of the court is much the same as when it is sitting to make the inquiry before trial. It is held to the exercise of a sound legal discretion, and is amenable to revision only when it has abused that discretion. The reason commonly assigned for the rule is that the trial court has the opportunity of seeing the juror, of hearing him give his testimony, and of noting his manner and demeanor while under examination; thus affording it advantages superior for determining the matters of inquiry to those accorded the appellate tribunal, which is furnished only with the dry facts upon paper. The rule is otherwise stated as requiring clear and palpable proofs to warrant a reversal of the trial court's determination. 4. It follows, therefore, that, where affidavits and proofs are produced for and against, which are conflicting and contradictory, and of somewhat even balance, so that it requires a precise estimate to determine as to the greater weight or preponderance, the trial court's conclusions will not be disturbed, unless they may result in manifest injustice: 17 Am. & Eng. Enc. Law (2 ed.), 1209; Ray v. State, 15 Ga. 223, 241; Brinkley v. State, 58 Ga. 296; Stewart v. State, 58 Ga. 577; Vann v. State, 83 Ga. 44 (9 S. E. 945); Long v. State, 95 Ind. 481, 486; Hodges v. Bales, 102 Ind. 494 (1 N. E. 692); Epps v. State, 102 Ind. 539 (1 N. E. 491); De Hart v. Etnire, 121 Ind. 242 (23 N. E. 77); State v. Lee, 80 Iowa, 75 (45 N. W. 545, 20 Am. St. Rep. 401); Wightman v. Butler County, 83 Iowa, 691 (49 N. W. 1041); Hull v. Minneapolis St. Ry. Co. 64 Minn. 402 (67 N. W. 218); Svenson v. Chicago, G. W. R. Co. 68 Minn. 14 (70 N. E. 795); State v. Gonce, 87 Mo. 627; Kennedy v. Holladay, 105 Mo. 24 (16 S. W. 688); State v. Dusenberry, 112 Mo. 277 (20 S. W. 461); State v. Howard, 118 Mo. 127, 136 (24 S. W. 41); State v. Taylor, 134 Mo. 109, 161 (35 S. W. 92). 5. The rule, on principle, must necessarily be the same where the court is sitting to inquire touching alleged misconduct of a juror. Mr. Chief Justice ELLIOTT, in Pearcy v. Michigan Mut. L. Ins. Co. 111 Ind. 59, 61 (12 N. E. 98, 99, 60 Am. Rep. 673), says, with great force and obvious justice, that "the examination of a juror on his voir dire has a twofold purpose, namely, to ascertain whether a cause for challenge exists, and to ascertain whether it is wise and expedient to exercise the right of peremptory challenge given to parties by the law. It is often important that a party should know the relation sustained by a person called as a juror to his adversary, in order that he may |