dence in this case, the period of gestation is from 249 to 285 days, and unless you find that the defendant had sexual intercourse with the complainant within such period, your verdict must be for the defendant." Held, not error to refuse the request, as the testimony showed a wider period of gestation than that stated in the request, and the court in its charge gave instruetion on the same matter.

8. Where a party to the action deems the charge of the court not sufficiently explicit, he should present written requests for instruction. Landis v. Fyles, 18 N. D. 587, 120 N. W. 566, followed.

9. Evidence examined, and held sufficient to justify the verdict.

Opinion filed April 15, 1911.

Appeal from District Court, Wells county; Burke, Judge.

Bastardy proceedings by the state, on the relation of Annie Pepple, against Joe Banik. From a judgment adjudging him to be the father of the bastard child, defendant appeals.

Affirmed.

Plinn H. Woodward and Edward H. Wright, for appellant.

A litigant is entitled to select the jury from the entire panel present and competent to act. People v. Edwards, 101 Cal. 543, 36 Pac. 7; People v. Compton, 132 Cal. 484, 64 Pac. 849.

A witness cannot give his opinion upon an inquiry embracing the whole merits of the case, leaving nothing for the jury. Betts v. Betts, 113 Iowa, 111, 84 N. W. 975; Marshall v. Hanby, 115 Iowa, 318, 88 N. W. 801; McGibbons v. McGibbons, 119 Iowa, 140, 93 N. W. 55; Briggs v. Minneapolis Street R. Co. 52 Minn. 36, 53 N. W. 1019; Wilson v. Reedy, 33 Minn. 503, 24 N. W. 191; Read v. Valley Land & Cattle Co. 66 Neb. 423, 92 N. W. 622; Baltimore & O. R. Co. v. Schultz, 43 Ohio St. 282, 54 Am. Rep. 805, 1 N. E. 324; Fernandez v. Burleson, 110 Cal. 164, 52 Am. St. Rep. 75, 42 Pac. 566; Davis v. Fuller, 12 Vt. 178, 36 Am. Dec. 334.

Improper statements by counsel in the argument to the jury, unrebuked by the court, are ground for new trial. Sullivan v. Chicago, R. I. & P. R. Co. 119 Iowa, 464, 93 N. W. 367; Mattoon Gaslight & Coke Co. v. Dolan, 111 Ill. App. 333; Rudolph v. Landwerlen, 92 Ind. 34; Jung v. Theo. Hamm Brewing Co. 95 Minn. 367, 104 N. W. 233;

Hayes v. Smith, 62 Ohio St. 161, 56 N. E. 879; Houston, E. & W. T. R. Co. v. McCarty, 40 Tex. Civ. App. 364, 89 S. W. 805; Fred Heim Brewing Co. v. Hamilton, 137 Iowa, 376, 114 N. W. 1039; Bjoraker v. Chicago, M. & St. P. R. Co. 103 Minn. 400, 115 N. W. 202; Kiehlhoefer v. Washington Water Power Co. 49 Wash. 646, 96 Pac. 220.

It is error not to define the issues to the jury, and not to charge generally as to the law of the case. C. Aultman & Co. v. Martin, 37 Neb. 826, 56 N. W. 622; Barton v. Gray, 57 Mich. 622, 24 N. W. 638; People v. Murray, 72 Mich. 10, 40 N. W. 29; Sandwich Mfg. Co. v. Shiley, 15 Neb. 109, 17 N. W. 267; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, 49 Am. Rep. 724, 20 N. W. 860; York Park Bldg. Asso. v. Barnes, 38 Neb. 834, 58 N. W. 440.

To convict of bastardy, proof must show intercourse at a time so that, in the course of nature, the child could have been begotten by defendant. Sonnenberg v. State, 124 Wis. 124, 102 N. W. 233; Souchek v. Karr, 78 Neb. 488, 111 N. W. 150; Masters v. Marsh, 19 Neb. 458, 27 N. W. 438; Allred v. State, 151 Ala. 125, 44 So. 60; 9 Current Law, 386, and cases cited in note 64; Sang v. Beers, 20 Neb. 365, 30 N. W. 258; Stoppert v. Nierle, 45 Neb. 105, 63 N. W. 382.

John A. Layne and Lee Combs, for respondent.

It is not error not to delay trial and compel the attendance of absent jurors. People v. Collins, 105 Cal. 504, 39 Pac. 16; Johns v. State, 55 Md. 350; People v. Vermilyea, 7 Cow. 369; Green v. State, Tex. Crim. Rep., 65 S. W. 1075; Stephens v. State, 31 Tex. Crim. Rep. 365, 20 S. W. 826; 24 Cyc. Law & Proc. p. 248, ¶ 6, and cases cited; State v. Rountree, 32 La. Ann. 1144; Boles v. State, 24 Miss. 445.

Jurors cannot be questioned as to how they would act upon certain contingencies, or in case certain evidence developed in the case. Fish v. Glass, 54 Ill. App. 655; Woollen v. Wire, 110 Ind. 251, 11 N. E. 236; Keegan v. Kavanaugh, 62 Mo. 230; Com. v. Van Horn, 188 Pa. 143, 41 Atl. 469; Hughes v. State, 109 Wis. 397, 85 N. W. 333; Chicago & A. R. Co. v. Fisher, 141 Ill. 614, 31 N. E. 406.

An observer may state the result of his observations on matters upon which is possessed equal knowledge, when they cannot be made more perceptible to the jury. Vermillion Artesian Well, E. L. Min. & Improv. Co. v. Vermillion, 6 S. D. 467. 61 N. W. 802, and cases cited;

Hubbard v. State, 72 Ala. 164; Jackson v. State, 29 Tex. App. 458, 16 S. W. 247; 17 Cyc. Law & Proc. p. 87.

BURR, District Judge. One Annie Pepple makes complaint under oath, charging that she is an unmarried woman, and that the defendant is the father of her unborn child, begotten on or about the 17th day of March, A. D. 1908, in Wells county. On or about the 15th day of November, 1908, the complaining witness was delivered of two bastard children, one of which died within a month of birth, and the other being alive at the time of trial. The defendant entered a general denial of the charge, and the case came on to be heard on the 16th day of February, 1909, at which time a verdict was rendered by a jury impaneled to try the case, declaring in effect that the defendant is the father of the bastard children of the complaining witness. Judgment was entered in conformity with said verdict, and, after his motion for new trial was denied, the defendant appealed to this court from the judgment and from the order denying his motion for a new trial, alleging some forty-four errors occurring during the trial, and including the specification that the verdict is contrary to the evidence, as being against the instructions of the court. No question has been raised as to the title of this case, nor any amendment suggested by either party.

The first class of errors has to do with the impaneling of the jury. It appears from the record that among the persons regularly drawn and served to appear as jurors at the term of court at which this case was tried were one D. and one H. The names of these jurors were in the jury box, and when the first twelve jurors were called for examination, the names of these two jurors were called along with others, but neither responded to his name, nor was present during the examination. At the request of counsel for the plaintiff, and against the demand of the defendant, the court ordered the names of two other jurors drawn in place of the absentees. The defendant duly excepted to this direc tion and order of the court, which order is assigned as error.

There is no merit in this assignment of error. The appellant argues that he was "entitled to have the names drawn from the box, and to have the jurors whose names were so drawn serve upon the trial, unless they are excused." There is nothing in the record to show that the jurors ever appeared in court. The defendant made no application for an attachment to issue to bring them in, nor does he show that he was

prejudiced in any way by the order of the court. As stated in Johns v. State, 55 Md. 350: "The accused has no special right in having any particular individual or individuals presented to be sworn as jurors, rather than others equally competent. All that he has a right to demand is that the persons presented to be sworn as his triers shall be good and lawful men, competent under established rules of law to be sworn in his case." The trial court has a wide discretion in excusing jurors, and his act in this case amounted to excusing these two jurors temporarily. This is the uniform practice in our state, and in the absence of prejudice shown, the defendant cannot complain of injury. As stated in People v. Collins, 105 Cal. 505, 39 Pac. 18: "If the court were required to suspend proceedings until an attachment could be served and the juror's presence secured, the impanelment of a jury would almost prove interminable."

See also State v. Rountree, 32 La. Ann. 1144.

Appellant cites People v. Edwards, 101 Cal. 543, 36 Pac. 7, and People v. Compton, 132 Cal. 484, 64 Pac. 849. In these cases all the names of the jurors present were not in the box at the time the jury was drawn, nor were the absentees excused. These cases cited were criminal cases, whereas this proceeding is a civil action. Our Code of Criminal Procedure contemplates that a criminal trial may proceed, even if a juror is absent when his name is drawn. Rev. Codes 1905, § 9943.

During his examination of the jury, the defendant, from time to time, interrogated the jurors drawn with reference to the weight they would attach to the complaint in this action sworn to by the prosecutrix, and, when the court sustained the objections of the plaintiff thereto, duly excepted, and has assigned some seventeen errors based upon this action of the court. The following question is a fair sample of this line of examination: "Suppose the state should present a sworn complaint to you, in which she swore that Joe Banik is the father of her child, and should not offer any other evidence, and the defendant. should not offer any evidence of any kind; what would be your verdict, that he was guilty or not?" The objection to this line of examination is well taken, and the court committed no error in sustaining it. The defendant, in his brief, practically admits that the complaint could not have been received in evidence under the rules of practice, but claims that it was necessarily before the jury in their deliberations, being the

initial pleading in the case. "Questions as to what a jury would do or not do under a supposititious state of affairs may properly be ruled out." Hughes v. State, 109 Wis. 397, 85 N. W. 333; Fish v. Glass, 54 Ill. App. 655; Keegan v. Kavanaugh, 62 Mo. 230. In Niezorawski v. State, 131 Wis. 166, 111 N. W. 250, it is stated that inquiries as to the effect on the mind of a prospective juror of the finding of an indictment are not within the proper scope of his examination. The inquiries of the defendant related simply to the possible action of the jury upon hypothetical cases, and no party has a right to assume the facts and ascertain the juror's opinion in advance. Com. v. Van Horn, 188 Pa. 143, 41 Atl. 469, 472; Woollen v. Wire, 110 Ind. 251, 11 N. E. 236.

Defendant alleges that he had a right to so interrogate the jury in order to lay a foundation for peremptory challenges. In Chicago & A. R. Co. v. Fisher, 141 Ill. 614, 31 N. E. 406, where the trial court refused to allow the appellant to ask three jurors how they would decide if evidence were equally balanced, and where the appellant claimed he had a right to so interrogate in order to lay a foundation for peremptory challenges, the court says: "In civil cases it is the absolute duty of jurors to take the law from the court, and they are not supposed to know what the rules of practice are that govern in the progress of a cause through the court. . . In our opinion the denial of permission on the preliminary examination of jurors, to obtain from them, by means of hypothetical questions that call for the decision of a question of law, a prejudgment of the case, and a statement in favor of which party they would decide in a supposed state of the evidence, is not error." See also Thomp. Trials, § 102.

Seven of the jurors had been thus interrogated, and the defendant exhausted his peremptory challenges in removing three of them from panel. This examination took place, of course, before the court gave its charge to the jury, and the fact that the court in its charge did not instruct the jury to disregard the complaint as evidence does not make the court's ruling error, in the absence of a request to that effect on the part of the defense. In his brief the defendant says: "The omission of the court to so charge (against considering the complaint as evidence), especially in view of the interrogatories propounded to the jurors, may well have been taken by them as an indication that in the mind of the court the jurors were entitled to consider the complaint