SHLLIVAN, C. J.
On February 20, 1902, the defendant was convicted of the crime of murder in the first degree for the killing of one Davis Levy. By information of the county attorney of Ada county, the defendant was accused of said crime in that, on the third day of October, 1901, at the county of Ada, in the state of Idaho, the said defendant did feloniously and of his deliberate, premeditated malice aforethought, kill and murdef said Davis Levy by means of a rope, and beating, bruising and strangling said deceased. After the verdict aforesaid was rendered the court passed the sentence of death upon [490] the defendant. Thereafter counsel for the defendant moved for a new trial, which was heard upon a bill of exceptions and certain affidavits, by which it was claimed that one of the jurors held and expressed an opinion of the defendant’s guilt prior to his having been accepted as a juror, and on the ground of newly discovered evidence. The motion for a new trial was denied by the court, and this appeal is from the judgment and the order denying the new trial. Numerous errors are assigned as ground for granting a new trial which go to the admission and rejection of certain evidence and the insufficiency of the evidence to support the verdict and error in giving certain instructions to the jury. Counsel also contend that a new trial should be granted upon the ground of the newly discovered evidence set forth in certain affidavits used on the motion for new trial. Counsel for the defendant contend with great zeal and ability that the evidence was insufficient to sustain the verdict of the jury. The evidence was mostly circumstantial, and among the mass of evidence admitted on the trial the following facts appear:
The deceased was the owner of a brick building, situated on Main street, between Gth and 7th streets, in Boise City, the second story of which was occupied as a lodging-house, in one room of which deceased had his office, living and sleeping therein. Upon the back part of the lots upon which the building stands there were situated several small houses, commonly known as “cribs,” which “cribs” were occupied by “women of the town”; said “cribs” faced on the alley between Main and Idaho streets. The defendant had two of these unfortunate women under his protection, and, as the evidence would show, under his control. They, like himself, were of French origin. For some months prior to the death of Levy the defendant’s women had occupied one of those “cribs” in the night-time, living in the daytime with defendant, on Bannock street, several blocks distant from said “cribs.” The main entrance to the deceased’s building aforesaid was and is on Main street, and from that entrance a person could go upstairs, pass the said office of the deceased through a hallway to the 'back door, from which door stairs reached below to the back part of the lots on [491] which said building stood. An arch of brick stood on the back of the lots next to the alley. The “crib” occupied by the defendant and his said women was alongside of said arch. A person could pass up the stairway from Main street, pass the said office of deceased, and go through the building down the said back stairs and through the archway into the alley. At the time of the murder, a colored woman occupied one of the “cribs” near said archway, which “crib” has a back entrance, into the yard back of the main building. It is shown that Davis .Levy was an eccentric, excitable man of about seventy years of age, and the defendant comparatively a young man. It appears from the record that the defendant and his women had removed from said “crib” on the second day of October, the day preceding the murder of the deceased, and was making preparations to go with his women to Baker City, in the state of Oregon. It also appears that the defendant had occupied a room in said lodging-house for some months during the year or two previous to the date of the homicide, and that he and the women had occupied the “crib” referred to for months prior to the date of the homicide. The evidence shows that there was a very hostile and bitter feeling between the defendant and the deceased. It is shown that as early as May, 1901, they had a fight, and the defendant struck the deceased with a piece of board. The evidence discloses numerous threats by the defendant against the deceased, in some of which he had declared he would kill the deceased — said that he would cut his throat; that he would cut his neck off at his shoulders. It is shown that on October 2, 1901 — that being the day prior to the day of the homicide of the deceased — the defendant moved from said “crib.” It appears that he was compelled to do this by one of the police officers of the city, because one of his said women was unable to obtain a doctor’s certificate of good health, which it seems was required by that class of women. The evidence indicated that the defendant was greatly incensed at this and he said on that day that Davis Levy, the deceased, had run him out and that he would get even with him, and on the same day he threatened the deceased in the presence of another witness, apparently charging the deceased with having been the-cause of his being [492] compelled to leave the city. There is much other evidence which tends to show the malicious feeling of the defendant toward the deceased. It is shown that some months prior to October 3, 1901, the defendant was skinning a live rabbit and a person present protested against such cruelty, and the defendant replied that he would skin Levy (the deceased) that way. This evidence was evidently introduced to show the malice and hatred of the defendant toward the deceased.
The evidence shows that the body of the deceased was found on October 5, 1901, in one of the rooms of the said lodging-house. He had been gagged, a rope tightly drawn around his neck, tight enough to cause strangulation; his hands and' feet were tied. The appearance of his said office, which he used as a living and sleeping room, and a wound on the left side of his head, indicated that he had been struck down while eating his evening meal, and that he had been taken to the room where the body was found, which was one of the lodging-rooms in said house. There was no evidence of a struggle in the latter room. When found, the body was dressed and lying on the bed, and several keys and two tobacco or money sacks and some other articles were found laid alongside of the body, on the bed, in regular order. His shoes had been taken off and placed near the foot of the bed; a gag made of a knotted napkin was in his mouth and a towel and pillow laid over his face. There was no indication of a struggle after the body had been placed on the bed. There was no money found on his person, but two checks were found under the bedclothing on the opposite side of the bed from the body. In his said office or living-room, was found on the table a bowl of broth, part of a loaf of barley bread, apieee of which had been cut off and a mouthful bitten out of the piece; also some butter and cheese were on the table. A kettle containing some small pieces of meat was on the stove. So far as the evidence shows, the deceased was last seen between half after 6 and 7 o’clock on the evening of October 3, 1901, and the evidence shows that if deceased had been living for any length of time after 7 o’clock, he would have been seen. It is shown that a piece of board used to bar the door to the front entrance of said lodging-house, which was usually left in [493] the hall by Levy when he went to bed at night, was not there that night, and the light that deceased kept at the front door was not lit that night, nor was the back door locked. This and •other circumstances would go to prove that the deceased was killed before his retiring time and while at supper. Taking all the evidence, it is clear to us that the deceased was killed between 7 and 8 o’clock on the evening of October 3, 1901. The circumstances also show that he must have been killed by someone familiar with the premises. It appears that said office of deceased was locked and found so at the time the body was discovered. A key that would unlock said office was found in a Tefuse box back of the “crib” which had been occupied by the women of the defendant, and also some small pieces of rope like that found around the neck, arms and legs of the deceased.
The defense of the defendant was an alibi, and much of the evidence tends to show the malice and ill-will of the defendant toward the deceased, and of the defendant’s whereabouts from 7 o’clock until half after 10 o’clock on the evening of October 3, 1901.
Counsel for appellant contend that the defendant has clearly established an alibi in that the evidence shows the whereabouts of defendant during said time, and that it would have been impossible for him to have murdered the deceased, while it is contended by counsel for the state that the evidence clearly shows that the defendant was around and in the said lodging-house at least two or three times during that period. One of the witnesses for the state testified that she saw the defendant standing in said brick archway back of the lodging-house and afterward disappear into the rear of said “crib” where said trash-box was situated. He was seen by another witness going out of said archway at about half-past 7 o’clock, and was seen in the alley near there by two other witnesses between 7 and 8 o’clock. The evidence further shows that about fifteen or twenty minutes before 8 o’clock on that evening the defendant appeared at the barber-shop opposite Weil’s cigar store on Main street, between 7th and 8th streets, in Boise, and went to the back part of the shop and asked for a bath; he went into the bathroom, remained there some fifteen or twenty minutes, [494] came out and asked for a quick shave. The barber who shaved him was at that time busy with another customer, and the defendant sat down and waited a few minutes for his turn. It is also shown that it was the custom of the defendant to get shaved twice a week, and that he had been shaved the day before. It is the custom to close all barber-shops in Boise promptly at 8 o’clock. It appears that the curtains were drawn in said shop and the door locked before the defendant was shaved. After the defendant was shaved the barber unlocked the door and let him out, and the barber immediately went across the street to Weil’s cigar store and began to play a game of cards known as “solo” with two other persons and continued to play for about half an hour, when the defendant came into the room. The barber testified that the defendant acted in a very strange and unusual manner and seemingly was laboring under considerable excitement. The defendant remained there watching the game until he was notified that the busses were going to the hotels to take passengers to the depot, to take the 10:40 train; upon said announcement being made the defendant left. The evidence shows that the busses go to the hotels for passengers for the 10:40 train at 10 o’clock. It appears that the defendant left Weil’s cigar store at about 10 o’clock and arrived at the depot about 10:25 or 10:30 o’clock and appeared to be laboring under some excitement, and was perspiring; it also appears that it takes less than five minutes to walk from Weil’s cigar store to the depot. The evidence shows that the electric lights in Boise went out on said night of October 3d about twenty-five minutes after 10 o’clock; and one of the. witnesses for the state testified that shortly before those lights went out she saw the defendant come down the back stairs of said lodging-house and at the bottom of the stairs saw him pull out his watch and put it back in his pocket, then walked to said archway and stood there looking up and down the alley; he-then went down back of said “crib” that his women had occupied, and that just as he disappeared the electric lights went out.. Another witness for the state testified that between 10 and 'll o’clock on the night of October 3d he was playing billiards in his saloon on tire north side of Main street, between. [495]*4957th and 8th streets, and that defendant came in the back entrance — that being the entrance from the alleyway. Another witness testified that he was in said saloon when the defendant came in there; that defendant seemed to be in a hurry and was sweating and perspiring considerably; that the first witness above referred to spoke to the defendant and wanted to know w'hat was the matter, he was sweating so. He put his hand on his stomach and said, “I am sick.” While one of the witnesses referred to is not sure of the time when defendant came into said saloon, it clearly appears from the other witness that it was between-10 and 11 o’clock on the evening of October 3d.
There are many other circumstances tending to prove the guilt of the defendant, none of which are contradicted or disproved, and it is not necessary for us to relate them here. But from all of the evidence in the case, which we have carefully considered, we have no doubt of its sufficiency to sustain the verdict.
The test of the sufficiency of circumstantial evidence is: Does the circumstantial evidence produced on the trial establish in the minds of the jury a sense of conviction to the exclusion of all reasonable doubt? The convincing effect that would follow from positive evidence is not necessarily to flow from circumstantial evidence, although circumstantial evidence is often the most satisfactory and convincing that can be produced. (3 Bice on Evidence, sec. 343, and authorities there cited.)
It is a general axiom of human action that all persons act from motive, and it is always a satisfactory circumstance if a jury can feel that it is proved to their satisfaction that the defendant had a motive, a strong, impelling motive for the act which he is charged with having committed. (3 Bice on Evidence, sec. 344.)
In the case at bar it is clearly established by the evidence that the defendant had a strong, impelling motive to commit the crime of which he was convicted. The ill-will, hatred and malice of the defendant toward the deceased is shown all through the evidence. That being clearly shown, and the conduct, actions, appearance and whereabouts of the defendant as shown by the evidence between the hours of 7 o’clock and 10:30 o’clock [496] on the evening of October 3, 1901, taken into consideration with all the evidence in the case, are amply sufficient to establish in the minds of the jury the guilt of the defendant to the exclusion of all reasonable doubt.
It is contended that the evidence, all taken together, is reasonably and fairly consistent with the hypothesis of the innocence of the defendant, and for that reason it is insufficient to sustain the verdict of guilty. We cannot agree with counsel in that contention, for as we view the evidence no other reasonable hypothesis than that of the guilt of the defendant can be drawn from it. The facts and circumstances shown by the evidence are absolutely incompatible upon any reasonable hypothesis with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis or rational conclusion other than that of the guilt of the defendant. The evidence is sufficient to establish the guilt of the accused beyond a “reasonable doubt.” The term “reasonable doubt,” as defined by text-writers and decisions of courts of last resort, is a “fair” doubt growing out of the testimony in the case. It is not a mere imaginary, captious or possible doubt, but a “fair doubt” based upon reason and common sense. (3 Eice on Evidence, sec. 268.) It would be possible to raise an imaginary or captious doubt in any case, no matter how strong, direct and positive the evidence might be. For instance, a jury might imagine, in a case where two uncontradicted eye-witnesses to a crime testified to its commission, that such witnesses might be mistaken and thus entertain a captious or imaginary doubt. But such a doubt is not a “reasonable doubt” within the legal definition of that phrase.
The admission of evidence to show that one of the defendant’s women had the syphilis and was for that reason unable to get a health certificate from the city physician and prohibited from plying her vocation in( Boise City, is assigned as error. It appears from the record that defendant claimed, and had stated, that the deceased was the cause of his having to leave the city, and as we understand it, the evidence last referred to was introduced to show that the deceased had nothing to do with that matter; that the examination of said female was suggested to the physician by a policeman, and that deceased had nothing to do with it.
[497] . Considering all the evidence in the ease which shows the character and vocation of the defendant and the women with whom he was living, and which it would have been impossible to have excluded on the trial, the admission of that evidence was an immaterial error which could not have possibly affected the verdict of the jury, and hence did not affect any substantial right of the defendant. (See Eev. Stats., sec. 8236.)
It is suggested that many of the witnesses for the state were from the slums of the city, and for that reason their testimony was unworthy of credence. But it must be remembered that the jurors are the judges of the weight to be ‘given to the testimony of the witnesses, and having seen the witnesses and heard them testify this court is not authorized to say that they should have rejected the testimony of any witness. If the testimony of all witnesses of the character of those referred to must be rejected on principle, many criminals would go unwhipped of justice. The rule is well established that the weight to be given to the testimony of the witnesses is the exclusive province of the jury, and in the case at bar it was for the jury to determine whether the entire evidence established the guilt of the defendant beyond a reasonable doubt. There is nothing in the record to indicate that the verdict was the result of passion or prejudice. The evidence, in our opinion, shows the guilt of the defendant beyond a reasonable doubt.
In State v. O’Brien, 3 Idaho, 374, 29 Pac. 38, this court said: “The jury saw all the witnesses upon the stand and could judge of their truthfulness. They were carefully and fully instructed in the law by the court. The judge who tried the cause, also, doubtless carefully noted the testimony, and certainly would not permit a judgment of this kind to stand if there was reasonable doubt of guilt.”
The giving of the following instruction on the court’s own motion, is assigned as error, to wit: “A defendant in a criminal action or proceeding to which he is a party is not, without his consent, a competent witness for or against himself. His neglect or refusal to give such consent shall not in any manner prejudice him nor be used against him on the trial or proceeding.”
[498] Section 8143, Revised Statutes, is as follows: “A defendant in a criminal action.or proceeding to which he is a party is not, without his consent, a competent witness for or against himself. His neglect or refusal to give such consent shall not in any manner prejudice him nor be used against him on the trial or proceeding.”
That statute was enacted for the protection of the accused, and numerous authorities could be cited where causes have been reversed because of comments made by the prosecuting attorney, and some instances by the court to the jury on the failure of the accused to testify in his own behalf. That statute provides that such failure shall not in any manner prejudice the accused nor be used against him on the trial.
The instruction complained of was given for the sole purpose of protecting the defendant and preventing any presumption from arising in the minds of the jury because of the failure of defendant to testify in his own behalf. It would be most natural for the jury to revert to the fact that the defendant failed to testify in his own behalf, and one can be hardly so simple as to imagine that the jurors would not comment or think of that fact had the court not given the instruction complained of.
In support of said contention counsel cite Wilson v. United States, 149 U. S. 60, 13 Sup. Ct. Rep. 765, 37 L. ed. 650. That was a case where the district attorney commented on the failure of the accused to testify in his own behalf, and the same is true of McKnight v. United States, 115 Fed. 975, 54 C. C. A. 358. Numerous authorities have been cited on the proposition that the fact that the accused declined to testify in his own behalf cannot be commented on. But not one case has been, called to our attention where the giving of the instruction complained of was held to be error.
The giving of several other instructions is assigned as error. After an examination of them we conclude that the instructions complained of correctly state the law and the court did not err in giving them. It appears from the officers in charge of the jury that during the trial the jurors expressed a desire to go to [499] the theater to witness certain plays on two evenings; that the court called respective counsel’s attention to that tact and asked the counsel in open court whether they had any objection thereto, and the attorneys assented, and the jurors attended said theater two evenings. It is shown that upon each of said occasions the jurors were taken into said theater after the rest of the audience were seated; that six of said jurors were seated in one box and six in another, facing each other, and an officer with each six; that no other person entered either of said boxes or spoke to either of said jurors; that each of said officers was in plain sight of the entire jury; that said jurors remained in said boxes until the audience had departed and then said jurors were taken from said boxes to the juryroom; that there was nothing in either play that in any manner could affect the judgment or opinion of any member of the jury in regard to this case. Such action of the jury is assigned as error. Counsel for defendant each made an affidavit in which they stated that they had no knowledge or recollection of the judge calling their attention to the fact that said jurors desired to attend the theater, and had not given their consent thereto.
While this court does not sanction the practice of jurors attending theaters during the progress of a murder trial, we do not think a new trial should be granted on that ground, unless it is shown that some substantial right of the accused has been prejudiced thereby, which has not been done in this ease. The misconduct or separation of the jury complained of in this case does not come within the provisions of section 7952, Eevised' Statutes. (See, also, People v. Bemmerly, 98 Cal. 299, 33 Pac. 263; People v. Bush, 68 Cal. 623, 10 Pac. 169.)
It is contended that defendant is entitled to a new trial because of the misconduct of the officers, in that they were very diligent and zealous in their efforts to discover the person who committed the homicide; that a large reward was offered for the conviction of the murderer; that the officers promised to pay at least one witness $50 in case they received the reward. That witness was the barber who shaved the accused on the [500] night of the murder, and his testimony was corroborated by other witnesses. The fact that a reward was offered and that some of the witnesses and officers were to receive a part of it in case of conviction is not sufficient cause to warrant the granting of a new trial, and the court did not err in refusing to grant a new trial on the facts presented in the transcript in that regard.
Several affidavits were presented on the hearing of the motion for a new trial, in which the affiants swore that one of the jurors had before the trial said, referring to the defendant, “They have got the right man and I believe he ought to be hung on general principles anyway,” and other statements equivalent thereto, and had made remarks derogatory to the defendant. The judge on the hearing of said motion admitted the affidavit of the juror denying that he had ever made such statements and also affidavits of seventeen persons, neighbors and acquaintances of said juror, to the effect that they had known said juror for years and knew his general reputation, in the vicinity in which he lived, -for truth, veracity, honesty and integrity, and that it was good. It is contended that the admission of the last named affidavits was error, and counsel cite on that point several authorities that apply to witnesses. In the case at bar the accused did try to show that the reputation of said juror for truth and veracity was bad by attempting to show that on his voir dire he had sworn that he had not formed or expressed an opinion of the guilt of the defendant when in fact he had formed, and at several different times had expressed, such opinions. The truth and veracity of the juror was directly put in issue and directly attacked. The question of the ineompetency of said juror was presented to the court or judge on motion for a new trial, and we do not think that the court erred in considering said sustaining affidavits. The judge in his discretion had the right to admit any evidence tending to throw any light on the question. The practice of admitting sustaining affidavits was in such cases apparently sanctioned by this court in State v. Davis, 6 Idaho, 59, 53 Pac. 678. Eeferring to that question the court said: “While we think such action is largely a matter of discretion on the part [501] of the trial court, etc., it is not necessary to decide the correctness of the action of the trial court in receiving and considering such rebutting affidavits.”
We do not question the rule that sustaining evidence cannot be introduced to support the character of a witness for truth and veracity when his character has not been attacked. But in the case at bar the character of the juror was directly attacked.
We have examined the newly discovered evidence on which counsel for defendant relies for a new trial, and do not think it sufficient to warrant the granting of a new trial. It is shown by the affidavit of one witness that he found human blood stains on the knob of the door of one of the rooms of said lodging-house and on the waters pitcher in said room, but that was not sufficient evidence on which to grant a new trial.
We have examined the many errors assigned in this case and are fully convinced that the trial court did not err in denying a new trial.
The judgment is affirmed and the cause remanded for further proceedings herein as provided by law.
Stockslager, J., concurs.
Ailshie, J., dissenting in part and to the conclusion.