¶1 On Application for Rehearing.
¶2 Appellant’s counsel, Hon. John F. Tobin, has filed a petition for rehearing upon the ground, stating it in counsel’s own words, “that the appellant was deprived of his substantial rights, in that he was not given a fair and impartial trial before a fair and impartial'jury. In other words, we respectfully contend that the trial court erred in *103 denying defendant’s motion for a change of venue.” In counsel’s argument in support of bis petition for a rehearing it is very earnestly insisted that this court erred in refusing to order a new trial upon the ground that the district court had grievously erred in denying appellee’s motion for a change of venue. The whole argument is based upon the ground that, on account of the prejudice prevailing against the appellant in Summit county, he did not and could not have a fair and impartial jury to try him.
¶3 In view that the appellant stands convicted of a capital offense, we have again gone into the record with a view of determining whether anything had been overlooked which might justify a new trial. After again going over the record of the proceedings, we are still unable to discover anything which justifies counsel’s cofftention as outlined above. The crime was committed in Park City, a mining town in Summit county. Not one of the 12 jurors who tried the case lived in Park City, nor in its vicinity. Of the 12 men who tried the case 6 lived at Coalville, the county seat of Summit county, .one lived at Hennefer, one at Hoytsville, one at Peoa, one at Wanship, one at Kamas, and one at Oakley, all of which are small towns in Summit county. The record also shows that, out of the 12 jurors who tried the case, not one was challenged for cause, and after carefully reading the examination of the jurors, all of which is contained in the bill of exceptions, there was no cause for such a challenge. The record, however, further shows that the appellant did not exhaust the full number of his peremptory challenges, and hence counsel, at the time the jury was impaneled, must have been satisfied that the jurors had qualified as fair and impartial men. Nor is there anything in thei record from which anyone could infer, much less assert, that there was any misconduct on the part of any juror or on the part of anyone else connected with the trial that, in any way, prejudiced or could prejudice the appellant. True it is that counsel, in support of the motion for a change of venue, filed his own and appellant’s affidavit to which were attached a considerable number of newspaper clippings, which were clipped *104 from newspapers published at Salt Lake City, in the county west of Summit county, and which newspapers, it is shown, circulated in Summit county. In those clippings, as is usually the case, the crime and the perpetrator thereof were denounced in strong language. The record, however, also shows that these newspapers circulated in practically all of the other counties of the state; and hence, if the newspaper articles had any effect, the effect would in all probability have been the same in whatever county the case might have been sent to for trial. But, with due deference to counsel’s insistence that the appellant was prejudiced by the newspaper articles: we can find nothing in the record which justifies us in arriving at such, a conclusion, and it seems the trial court was impressed in the same way.
¶4 Counsel has cited, and strongly relies on, the case of Scribner v. State, 3 Okl. Cr. 601, 108 Pac. 422, 35 L. R. A. (N. S.) 985. The question presented to the court in that case is clearly reflected from the introductory statement of the court. The court said:
“In this case we are called upon to say whether a man shall he deprived of his life hy the verdict of a jury, when the record discloses that 10 of the persons called and examined as jurors said under oath that they had formed an opinion as to the guilt of the defendant, and that it would require evidence to remove that opinion.”
¶5 We do not only concede, but wé affirmatively assert that to try a person, however guilty, to a jury thus disqualified would be a mere travesty of justice. Upon the other hand, we assert, with equal confidence, to order a new trial in view of the record in this case would likewise constitute a travesty of justice.
¶6 All persons charged with crime should be given a fair and impartial trial, but when one accused of. a crime, however heinous, has been given a fair and impartial trial in a court of competent jurisdiction, it would constitute a grievous wrong to grant a new trial merely because one shrinks from the consequences which under the law follow the conviction of such a crime.
¶7*105 Without going into further detail, it must suffice to say that nothing is made to appear that would justify this court in granting the petition for rehearing, and the same is therefore denied.