ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH.
MR. JUSTICE FIELD delivered the opinion of the court.
The defendant below, the plaintiff in error here, Frederick Hopt, was indicted in the District Court of the Third Judicial District of Utah, in December, 1880, for the murder of John F. Turner on the 3d of the preceding July. He was four times convicted in that court, upon this indictment, of murder in the first degree. The judgment of death pronounced against him on each previous conviction was reversed by this court. The decisions are found in 104 U.S. 631; 110 U.S. 574; and 114 U.S. 488. The last conviction took place in September, 1885; judgment was passed in October following;
and on appeal to the Supreme Court of the territory it was affirmed in January, 1886, except as to the time of its execution; that was to be fixed by the District Court, to which the cause was remanded for that purpose. To secure a reversal of this judgment the case is brought before us on a writ of error.
The errors assigned are: 1st, the ruling of the trial court upon challenges to several jurors; 2d, the admission in evidence of the opinion of a witness as to the direction from which the blow was delivered which caused the death of the deceased; 3d, the instruction to the jury as to the meaning of the words "reasonable doubt;" and, 4th, the reference on the argument by the district attorney to previous trials of the case.
1st. Four persons summoned as jurors were examined on their voir dire, and challenged by the defendant, one for actual bias, under § 241 of the act of the territory regulating proceedings in criminal cases, passed in 1878; and the other three for both actual and implied bias. Actual bias is defined by that act to be "the existence of a state of mind, on the part of a juror, which leads to a just inference in reference to the case that he will not act with entire impartiality."
The juror Young, challenged as having that state of mind, that is, for actual bias, testified that he had heard of the case, but had never talked with any one who pretended to know about it; that he had impressions as to the guilt or innocence of the defendant, but could not say that he had ever formed any opinion on the subject, and did not remember that he had ever expressed any; that possibly his impressions were strong enough to create, from sympathy, some bias or prejudice, but he thought he could sit on the jury and be guided by the evidence, and try the case impartially as if he had never heard of it before. Upon this testimony, the court was of opinion that he was a competent juror; and accordingly the challenge was disallowed. In this ruling we see no error. The juror was then peremptorily challenged by the defendant, and was excused.
That act also provides, in § 242, that a challenge for implied
bias may be taken for all or any of the following causes, and for no other:
1. Consanguinity or affinity within the fourth degree to the person alleged to be injured by the offence charged, or on whose complaint the prosecution was instituted, or to the defendant;
2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offence charged, or on whose complaint the prosecution was instituted, or in his employment on wages;
3. Being the party adverse to the defendant in a civil action, or having complaint against or being accused by him in a criminal prosecution;
4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment;
5. Having served on a trial jury which has tried another person for the offence charged in the indictment;
6. Having been one of the jury formerly sworn to try the same indictment, and whose verdict was set aside, or which was discharged without a ...