strongly declared." The judgment of the district court is affirmed. All concur. REPORTER: See also Farmers & M.'s Bank v. School Dist., 6 Dak. 255; McGuire v. City, id. ib. 346. TERRITORY OF DAKOTA, Defendant in Error, v. MAURICE O'HARE, Plaintiff in Error. 1. Criminal Procedure Calling Jury. In a criminal case, where the jury was called and sworn singly, and without calling twelve jurors into the box, and where the parties were required to exhaust all challenges to individual jurors as each juror appeared, and before proceeding further with the call, held not error. 2. Same; Calling From List - Error; Waivable, How. Where the clerk of the district court, in calling names for a trial jury, did not obtain the names from any jury-box, and did not use either a jury-box or ballots in calling the jury, but called off the names of those who served as jurors from a list of names before him, held, it was error. Held, further, that, had the attention of the trial court been called to such irregularity before the trial began, it would have been its imperative duty to have promptly dismissed from the trial panel all jurors who were so drawn. But where, in a criminal case, such irregularities of the clerk were discovered by the defendant's counsel while they were going on, and before the trial began, but he made no objection based on such irregularities, but, on the contrary, kept silent as to the same until after a verdict was returned into court, held, that the irregularity was waived. Held, further, that such irregularity was of a character which might be waived without impairing defendant's right of trial by jury. Held, further, that it was too late to take advantage of such irregularity upon a motion for a new trial, where defendant's attorney had such previous knowledge of the irregularity, but reserved his knowledge thereof, and brings it before the court for the first time, and by affidavit, upon a motion for a new trial. 3. Same; Overruling Challenge for Cause When Peremptory Challenges Unexhausted Not Reversible Error. Where it is conceded that defendant's challenge of a juror for cause in a criminal case was improperly overruled, but it did not appear affirmatively from the record that, at the time the jury was completed and accepted, defendant has exhausted his peremptory challenges, held, that defendant was not in a position to take advantage of such erroneous ruling. In such case, the court will assume that the juror, if objec tionable to defendant, could have been gotten rid of by a peremptory challenge. 4. Introduction of Handwriting Solely for Comparison Not Admissible in Territorial Courts. Where letters purporting to have been written by the defendant were offered in evidènce by defendant for the sole purpose of comparison of the handwriting with disputed writings put in evidence by the territory, and which letters were excluded, held, not error. Writings not in evidence for other purposes cannot be compared with disputed writings, under the common-law rule adopted by the supreme court of the United States. The trial court, in making such ruling, was a territorial court of subordinate jurisdiction, and, as such, was bound by the federal precedents. Should the same question arise in a case commenced after this state was admitted into the Union, we shall feel at liberty to establish a more liberal rule, if we shall then deem it expedient so to do. 5. Handwriting - Expert Testimony. The testimony of an expert in handwriting was excluded by the trial court. The expert testified that he was acquainted with defendant's handwriting, but, being examined by the court, he testified that he had seen defendant write but once, and that was during the noon recess of the court, at which time he had, at the request of the defendant's counsel, seen defendant write, for the sole purpose of becoming a witness. Held, not error. 6. Criminal Procedure - Cross-Examination of Defendant. Where, in a criminal case, defendant, at his own request, had taken the stand as a witness in his own behalf, and, on cross-examination, was required to testify as to his antecedents, and, in so doing, stated that he had passed under names other than his own, and had been in jail at different times and places, such testimony being objected to as irrelevant, and not proper cross-examination-no question of privilege having been presented, held, not error. A defendant, under such circumstances, occupies no better position than any other witness; hence, within the bounds of a sound judicial discretion, may be cross-examined as to specific collateral facts for the sole purpose of affecting his credibility. This is the rule as established by a decided preponderance of authority; but a different rule prevails in certain states, as in Oregon, California, and Missouri, where statutes have restricted the right of cross-examination to matters drawn out in chief. 7. Same; Charging Jury as to Evidence. Where the trial court, in a criminal case, in delivering its charge to the jury, makes an argumentative comparison upon the relative credibility of the principal witness for the defense, and the principal witness for the prosecution, where their testimony is vital, and diametri cally in conflict, and in so doing disparages the credibility of such wit ness for the defense, and also conveys to the jury in plain, though in. direct, terms, that the court entertains strong suspicions of the credi bility of such witness for the defense, held, error which must reverse the judgment. Held, further, that such error is not cured by repeated statements in the charge that the jury are the exclusive judges of the weight of evidence, and the credibility of witnesses. Subdivision 6, § 343, Code Crim. Proc., which declares that, in charging the jury in criminal trials, the judge “may state the testimony, * * but must not charge the jury in respect to matters of fact," has, as to criminal trials, abrogated the common-law rule, under which judges were permitted to give juries their own views and opinions upon the weight of the evidence and the credibility of the wit * nesses. ERRO (Opinion Filed April 1, 1890.) RROR to district court, Traill county; Hon. WILLIAM B. Taylor Crum, for the plaintiff in error, argued: Twelve names must be drawn by the clerk, and defendant allowed to examine the twelve before exercising the right of peremptory challenge; citing People v. Scoggins, 37 Cal. 676; People v. Iams, 57 Cal. 115; Lamb v. State, 36 Wis. 424. A writing known to be in the handwriting of a party may be introduced for the purpose of comparison. Georgia, etc., Co. v. Gibson, 52 Georgia, 640; Chance v. Ry. Co., 32 Ind. 472; Macomber v. Scott, 10 Kan. 336; Page v. Homans, 14 Me. 478; Sweetser v. Lowell, 33 Me. 446; Vinton v. Peck, 14 Mich. 295; Yates v. Yates, 76 N. C. 143; Murphy v. Hagerman, Wright, 293, (Ohio); McCorkle v. Binns, 5 Binn. 340, (Pa.); State v. Hopkins, 50 Vt. 316; Bird v. Miller, 1 McMull. 120, (S. C.) The courts are divided on this proposition. Unless defendant puts his character in issue, the state cannot inquire into his history, nor attack his character. State v. LePage, 24 Am. Rep. 75; People v. Daniels, 11 Pac. Rep. 655; Coleman v. People, 55 N. Y. 89; Gale v. People, 26 Mich. 159; State v. Huff, 11 Nev. 26; State v. Lurch, 6 Pac. Rep. 410; State v. Porter, 75 Mo. 171; State v. Carson, 66 Me. 116; State v. Rainsburger, 31 N. W. 866; Philadelphia, etc., Ry. Co. v. Stimson, 14 Peters, 448. As to the fifteenth exception to the charge, stated in the opinion, counsel cited: Thorp v. Goewey, 85 Ill. 612; Evans v. George, 80 Ill. 51; Frame v. Badger, 79 Ill. 441; Bulen v. Granger, 29 N. W. 719; Unruh v. State, 4 N. E. 453. Geo. F. Goodwin, attorney general, and F. W. Ames, states attorney for Traill county for the defendant in error: The objection to want of box and ballots was waived because not made till jury was complete. People v. Stonecifer, 6 Cal. 405; Thrall v. Smiley, 9 id. 537; People v. Ransom, 7 Wend. 417; Com. v. Norfolk, 5 Mass. 435. Jurors in criminal cases should be separately accepted and sworn: Thompson on Trials, §§ 91-2; State v. Potter, 18 Conn. 166; State v. Pierce, 8 Iowa, 231; Com. v. Rogers, 7 Met. 500; Walker v. Collier, 37 Ill. 362; State v. Roderigas, 7 Nev. 328; Horbach v. State, 43 Texas, 242; Smith v. Brown, 8 Kan. 608; Schufflin v. State, 20 Ohio St. 233; State v. Brown, 12 Minn. 538. An erroneous overruling of challenge for cause is not reversible error unless defendant had exhausted his peremptory challenges. Anarchist Case, 12 N. E. 989; Loggins v. State, 12 Tex. App. 65; People v. McGungill, 41 Cal. 429; State v. Elliott, 45 Iowa, 486; People v. Teatrusky, 2 N. Y. Crim. Rep. 450; Territory v. Campbell, 22 Pac. 121. That defendant was properly cross-examined as to his history and character: State v. Cox, 67 Mo. 392; Southworth v. Bennett, 58 N. Y. 659; State v. Pfefferle, 12 Pac. 406; Anarchists' Case, 12 N. E. 989; Boyle v. State, 5 id. 203; People v. Cummins, 11 N. W. 184; Territory v. Davis, 10 Pac. 359; Hanson v. Com., 11 S. W. 286; People v. Johnson, 50 Cal. 571. The extent of such cross-examination is in the discretion of the trial court: Disque v. State, 8 Atl. 281; People v. Clark, 8 N. E. 38; State v. Pfefferle, supra. Specimens of chirography are not admissible in evidence merely for purposes of comparison: Strother v. Lucas, 6 Peters 763; 9 Am. & Eng. Encyc. Law, 283-290. Unsigned letters are admissible, if traceable to the writer; Bartlett v. Mayo, 33 Me. 518. As to the fifteenth exception to the charge, they cited: Thompson on Charging Jury, § 37; People v. Cronin, 34 Cal. 191. In opening the state's case, its attorney spoke as follows: "This is the third time that the grand jurors of this county have returned an indictment for the crime of murder. In the former cases, the victim, the accused, the witnesses, and all connected with the trial, were residents here, and well known to the people of the county; in this case, the defendant, and most of the witnesses, and the deceased, are strangers to us all. Yet this investigation is of as much moment, to the people of this county, as though this crime were directed against one of our own citizens." To these remarks the defendant's counsel excepted. To the point that such remarks were improper, counsel for plaintiff in error cited: State v. Williams, 18 N. W. 682; Cleveland Paper Co. v. Bangs, 16 N. W. 833; Brown v. Swineford, 28 Am. Rep. 582; McDonald v. People, 18 N. E. 817; Hall v. Wolf, 16 N. W. 710; People v. Montague, 39 id. 588; Sasse v. Counsel for the state, contra, cited: son on Trials, §§ 964, 977; Heyl v. State, 109 Ind. 589; People v. Gibbs, 38 N. W. 257; Boldt v. State, 35 id. 935; State v. Calhoun, 34 id. 194; State v. Winter, 34 id. 476; People v. Greenwall, 22 N. E. 180; Anarchists' Case, 12 id. 993. State, 32 id. 849. Thomp WALLIN, J. The defendant (plaintiff in error) was convicted of the crime of murdering one Casey, and is now incarcerated at Bismarck under sentence of imprisonment for life. On April 24, 1889, motions for a new trial and in arrest of judgment were overruled by the district court. A bill of exceptions, embracing the evidence and the proceedings had at the trial, was settled in the court below; and the whole record is now before this court for review. The errors assigned are numerous, and we will first consider those which relate to the formation of the trial jury. The mode of impaneling the jury was the following: Names were called by the clerk; and, as jurors appeared, one at a time, they were sworn individually to try the case, and without calling twelve men into the jury-box. After the panel had been completed, it was sworn collectively, by administering the same form of oath as that which had previously been administered to the jurors individually. We find no warrant in the statute governing criminal trials for swearing the jury collectively, but no exception appears to have been taken to the second swearing of the jury, and we are unable to see how such an irregularity did or could preju |