Opinion of the Court-Hawley, J. had been murdered and that the defendant did it," but said that he had no bias for or against the defendant, and bethe case as impartially as if he had never He was held to be competent. lieved he could try heard of the case. The court said: "It is scarcely possible, in a community where an act has been done which startles and attracts the public mind, to obtain a juror, who should be intrusted with so grave a matter as the determination of the question of the guilt or innocence of the accused, whose mind has received no impression with regard to the case. Either from public rumor or newspaper reports, almost every person competent to serve as a juror, will have learned something in regard to the circumstances attending the commission of the alleged offense. And, as some impression, more or less strong, is almost invariably made by such reports, the rule which would demand a juror with no opinion respecting the case, would, in cases attracting public attention, and in which intelligence is most needed, practically exclude every intelligent man from the jury." (38 Iowa, 54.) Similar views are expressed in The State v. Bruce, 48 Iowa, 536, and in Stewart v. The People, 23 Mich. 72. In The State v. Spaulding, Kansas (reported in American Law Register for February, 1881, p. 110), where the defendant, a city clerk, was indicted for embezzlement, a juror testified that he had an opinion, founded upon rumor, that public money was missing; that he had no opinion as to the guilt or innocence of the defendant, and that he believed defendant was city clerk." This juror, upon substantially the same reasons which we have already expressed, was held to be competent. It was, perhaps, unnecessary to refer to any other than Our own decisions, for it is clear to our minds, from the principles announced in the concluding portion of the opinion in State v. McClear, and the views expressed in State v. Davis, 14 Nev. 439, that the court did not err in disallowing this challenge. 3. Was the confession of the defendant to the witness Smith admissible? Defendant was a candidate for re-election. There was a rumor on the streets that he was a Opinion of the Court-Hawley, J. defaulter. Two of his bondsmen, W. H. Smith and C. Derby, having heard these rumors, became anxious, and were desirous of ascertaining the truth or falsity of the reports concerning the condition of the affairs in the treasurer's office. The defendant, when first spoken to by Smith, denied the rumor. The next day, Mr. Smith met him in front of the court-house, and again stated to him the rumors that were afloat; urged him to have the money counted by J. E. McDonald; said that if the money was not counted it would injure him in the election. Nothing was said in reference to shielding him from a criminal prosecution. None was threatened or spoken of. The remarks of Smith were made, as he testifies, solely "with a view to induce the defendant to allow the money in the treasury to be then counted." Defendant testified that Smith said to him that "there is no use putting this thing off any longer. If you are short, come out and say so, and we will try and fix it up;" that thereupon he, Smith, and McDonald went into the treasurer's office, and Derby was sent for; that he understood from Smith's remark "that he (Smith) would assist him in making good his accounts, and that the money deficient would be paid into the county treasury before there would be any count of the money made by the county commissioners," and that if it had not been for said remark he never would have made any statement. Soon after the parties went into the treasurer's office the defendant said: "Boys, I might as well make a clean breast of it. I am short.' The witness Smith then asked him in what amount. He said, about twenty-two thousand dollars. He was asked what he had done with the money. He said he "had spent some at the primaries, and had operated some in stocks." We are of opinion that this statement was admissible. The law excluding confessions is based in a spirit of charity for the weakness of human nature, and rests upon the theory, that a man when charged with crime and threatened with the punishment of the law, or promised immunity therefrom, may be induced, while in an alarmed and excited condition of mind, to make statements that are not VOL. XVI-9 Opinion of the Court-Hawley, J. true. Such statements, when so made, are, and should be, excluded by the courts. But the essential elements that would entitle the defendant to this charity of the law are lacking in the facts of this case. At the time the statement was made, the defendant was not charged with any crime. No complaint had been filed. He was not under arrest. No prosecution was threatened. There was no promise or representation made by Smith which could reasonably have induced the defendant to state things that were not true. Moreover, Smith was not an officer. He had no authority. He did not stand in any such relation toward the defendant as to exercise any undue influence or control over the mind of the defendant as to make his confession inadmissible. It is true that Smith and Derby were jointly liable upon the official bond of the defendant in the sum of twenty thousand dollars; that they might have been able to pay the deficiency in defendant's accounts before the money could have been officially counted by the county commissioners, and it may be," if the accounts had been made good, that no criminal prosecution would have been instituted (although that fact would not have relieved defendant from such prosecution.) But these facts, if they had any influence over the defendant, were only calculated to make him tell the truth. Holding the office he did, it must be presumed, in the absence of any showing to the contrary, that he was a man of ordinary mind and intelligence, and we can not conceive of any reasonable theory which, upon the defendant's own statement of the conversation, could have induced him to tell an untruth as to his guilt. It is only in cases where the confession is obtained by mob violence, or by threats of harm, or promises of favor or worldly advantage held out by some person in authority, or standing in such intimate relation from which the law will presume that his promises or threats will be likely to exercise such an influence over the mind of the accused as to induce him to state things that are not true, that will authorize the courts to exclude the confession or admission. Argument for Appellants. The law in its general application to this question, as well as others, is founded in reason and common sense. Its object is to ascertain the truth, and it is not its purpose to reject any reliable and competent means of attaining it. The judgment of the district court is affirmed. [No. 1,055.] MARY WALL ET AL., APPELLANTS, v. LOUIS TRAINOR ET AL., RESPONDENTS. NEW TRIAL-NEWLY DISCOVERED EVIDENCE-MATERIALITY OF-AUTHORITY OF AGENT.-On the trial plaintiffs testified that they sold a quantity of hay to one Dwelly as the agent of defendants. Defendants testified that the hay was sold to Dwelly as the agent of a corporation. Plaintiffs recovered judgment, and the court granted a new trial upon the ground of newly discovered evidence: Held, that admissions made by plaintiffs, before and after the trial, that they sold the hay to Dwelly as agent for the corporation, was material, regardless of the question whether Dwelly had the authority to make the purchase. IDEM-WHEN TESTIMONY IS NOT CUMULATIVE.-Testimony is only cumulative which is in addition to, or corroborative of, what was given at the trial. If the newly discovered evidence brings to light some new fact bearing upon the main question at issue between the parties, and it would be likely to change the result, a new trial should be granted. APPEAL from the District Court of the Second Judicial District, Washoe County. The facts are stated in the opinion. Pierce Evans and William Cain, for Appellants: I. If M. B. Dwelly pretended to act as the duly authorized agent of the California Fruit and Meat Shipping Company in the purchase of the hay, the testimony shows without conflict that he was not; and it further appears that this corporation never ratified his acts by acceptance or measurement of the hay or by paying a single dollar of the purchase money; hence, there was no contract for the sale of this hay between plaintiffs and the corporation. There was no sale ever intended by plaintiffs to Dwelly by either party; hence there was no contract between those two parties, and so Opinion of the Court-Leonard, C. J. there was no sale to the corporation nor to Dwelly; and the title had not passed from plaintiffs, and was in them, even under the theory and proposed testimony and proof of defendants, when they measured and fed the hay to their cattle. (Benjamin on Sales, 406, sec. 443; Cundy v. Lindsay, 19 Eng. Rep. 237; 24 E. R. 345; Hardman v. Booth, 1 Hurlst. & Colt (Exch.), 803; Higgins v. Burton, 26 L. J. (Exch.) 342; McGoldrick v. Willits, 52 N. Y. 612; Pease v. Smith, 61 Id. 477; Bearce v. Bowker, 115 Mass. 129.) II. Before granting a new trial, the court must be satisfied that the newly discovered evidence is so material that it would probably produce a different verdict if the new trial were granted. (1 Saw. 291.) The evidence is merely cumulative. (Gray v. Harrison, 1 Nev. 502; Howard v. Winters, 3 Id. 542.) III. The action is proper in form, and no objections have been taken thereto in the court below. (McGoldrick v. Willits, 52 N. Y. 620; 2 Greenl. Ev., sec. 108; Wiegand v. Sickel, 3 Keys, 122; Coghill v. Marks, 29 Cal. 677. Webster & Rankin, for Respondents. By the Court, LEONARD, C. J.: Plaintiffs obtained verdict and judgment for one thousand two hundred and fifty dollars, balance alleged to be due for hay claimed to have been sold to defendants. The court granted a new trial on the ground of newly discovered evidence material for the defendants, which they could not with reasonable diligence have discovered and produced at the trial. This appeal is from the order granting a new trial. It is not disputed that plaintiffs sold the hay to one Dwelly, acting as agent either for the defendants or the California Fruit and Meat Shipping Company, a corporation incorporated in the state of California, doing business in this state. Plaintiffs claimed, and their evidence tended to show, that Dwelly made the purchase as the agent of defendants, while defendants claimed, and their evidence tended to show, that he was not their agent, but was the |