Opinion of the Court-Leonard, J.

the time when the defendant should interpose his challenges, especially as in so doing he was given all rights accorded by the common law practice. We quote further: "But it is said the clerk informs the prisoner that if he would challenge them, or any of them, before they are sworn, he shall be heard. This is certainly the form. We understand it to mean that his challenges must be made before the jurors are sworn; but we do not suppose that the prisoner is, therefore, to direct at what time before they are sworn this shall be done. He is called upon then to make his challenges, and when he has had a fair opportunity to do this, he has had the privileges the statute confers upon him. He has the right to plead, to examine witnesses, to be heard by counsel; but the court direct the time when he shall plead, when his witnesses shall be heard, and the order in which his counsel shall speak. * * * The order of time and manner of proceeding on all such subjects must, of course, be under the direction of the court, unless the statute prescribes otherwise.” We might fully agree with the above, in view of the Connecticut statute and the court's construction of the same. Because it does not appear from the opinion, or from an examination of the statute, that under the law of that state, it was the court's duty to have the clerk inform the prisoner, "that if he would challenge the jurors, or any of them before they were sworn, he should be heard." If that was so, and informing the prisoner as stated, was merely a matter of practice, there was nothing in the statute to hinder the court directing also, at what time before the jury were sworn, the challenge should be taken.

Potter's case was decided upon the Connecticut statute, as this case must be upon ours. The natural meaning of ours has already been given, and courts should not, by judicial legislation, give it any other.

The State v. Roderigas, 7 Nev. 328, is not in conflict with our opinion as before expressed. The intention of the court was to affirm the decision in Anderson's case, and nothing more. In both cases, the juror had been sworn before the challenge was taken.

Opinion of the Court-Leonard, J.

In the State v. Cameron, 2 Chand. (Wis.) 178, it appears that before the jury had been sworn, but after they had been accepted by both parties, the defendant, whose challenges had not been exhausted, asked leave to challenge a juror peremptorily, but his request was refused. A majority of the court thought the ruling was correct and said: “The cases cited by the counsel for the prosecution show, that in two of the states, the practice is not to allow a defendant in a criminal prosecution to challenge a juror peremptorily after he had been accepted; while in Massachusetts it appears that the privilege must be exercised before the juror is examined. (Commonwealth v. Rogers, 7 Met. 500.) An examination of the authorities shows, that the practice is different in different states, and has not been uniform in the same courts."

The opinion was rendered in 1850, and no reference is made to the statute. * * * The Revised Statutes of 1858 (p. 993, sec. 4) show that certain peremptory challenges are allowed, but there is no direction or intimation as to when they shall or may be taken. We presume such was the case at the time of the decision in question. If so, it does not necessarily militate against our view.

The chief justice, however, dissented from the opinion of the majority, and held that the right of peremptory challenge existed until the actual swearing of the juror. (p. 181.)

Commonwealth v. Rogers is the last case cited by the counsel for the state. The court held, that under the Revised Statutes "the right of peremptory challenge, if exercised at all, must be exercised in the first instance, before the juror should be interrogated as to his bias or opinions." Sec. 3 of ch. 137 (see Mass. Rev. Stats. 1836) provided that, "Every person indicted for any offense shall, when the jury is impaneled for his trial, be entitled to the same challenges that are by law allowed to defendants in civil cases. And sec. 27, ch. 95, regulating trials in civil actions, provided: "The court shall, on motion of either party in any suit, examine on oath any person who is called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion. * * * ;

Opinion of the Court-Leonard, J.

and if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be called and placed in his stead for the trial of that cause." Under those statutes the court held as before stated; evidently upon the ground that if an indifferent juror was placed upon the jury, "for the trial of that cause," it was not intended that he should be challenged off.

We conceive that upon the state's own authorities, its position is poorly sustained; but, as briefly as possible, let us examine those taking an opposite view. In People v. Kohle, 4 Cal. 199, after twelve jurors had been called and accepted, the prisoner, having ten peremptory challenges, offered to challenge one; but his offer was refused and the jurors were sworn. It was held that the court erred. The statute referred to in the opinion, as well as in all other cases in that court, to which we shall refer, was the same as ours. Kohle's case was decided in 1854-seven years before our Criminal Practice Act was copied from the California statute. In People v. Rodriguez, 10 Cal. 59, decided in 1858, the court said: "Had the eleven jurors been sworn against the objection of defendant, and then his challenge refused, the question would have presented another aspect. The right to challenge the juror before he is sworn is expressly secured by the statute and settled by the decision of this court in the case of the People v. Kohle."

In People v. Reynolds, it was held that, "jurors may be sworn as they are accepted, or the administration of the oath may be delayed until the panel is completed." (But see People v. Scoggins, 37 Cal. 676, and People v. Russell, 46 Id. 122.) "Either mode may be adopted, and in either case the defendant must exercise his right of peremptory challenge before the jury is sworn."

In Jenks' case, 24 Id. 12, after five jurors had been impaneled, the court informed the defendant "that he must exhaust all his challenges to the jury before accepting them, and that he would not be permitted to challenge afterward, without assigning a sufficient reason therefor." Defendant excepted to the rule. He afterward examined the remaining seven for cause, and passed them to the district attorney,

Opinion of the Court-Leonard, J.

who expressed himself satisfied with the jury. The court then ordered them to be sworn, when defendant challenged one of the seven last examined, without assigning any reason therefor, except his "statutory right." His challenge was disallowed and the jurors were sworn to try the cause. The supreme court held the disallowance of the challenge "clearly erroneous," saying, that "the plain and express provision of the statute can not be contravened by any arbitrary rule of the court. Facts touching the competency of the juror might come to the knowledge of the defendant or his counsel after their acceptance and before the administration of the oath, not known to them at the time he was accepted, which might materially affect their judgment upon the question of challenge. In such an event the defendant is not bound to disclose these facts to the court or jury."

* * *

In People v. Ah You, 47 Cal. 121, twelve jurors were sworn to answer questions. After they had answered, several peremptory challenges were interposed, and the remainder were accepted. Others were then called to fill the panel, and after they had been examined for cause, the defendant peremptorily challenged Davis, who had been accepted when the first list of jurors was called. The challenge was disallowed, the court holding that it could not be interposed without cause shown. The supreme court held that, the defendant could take his challenge at any time before the juror was sworn. Hendrick's case, 5 Leigh, 710, shows that, D. Hudson was called as a juror and elected by the prisoner. The court refused thereafter, but before he was sworn, to permit the defendant to challenge him peremptorily. On appeal the court said: "But we think the court below erred in refusing to permit the prisoner to retract his election of the juror D. Hudson, and to challenge him peremptorily.

Some circumstances are stated to show the reason of this decision, which it is not necessary to advert to; for this court is unanimously of opinion that the right of a prisoner to challenge any juror peremptorily is absolute at any time before the juror is sworn, and that no circumstances can bring that right within the discretion of the court, so long

Opinion of Hawley, J., dissenting.

as it is confined to the number of peremptory challenges allowed by law." And for that error the judgment was reversed. (See, also, other cases first cited in this opinion.)

We are of opinion, upon reason and authority, that the court erred in disallowing the challenge in question, and that thereby appellant was deprived of a material right.

The judgment and order overruling appellant's motion for a new trial are reversed, and the cause remanded.

HAWLEY, J., dissenting:

I am of opinion that the record affirmatively shows that the defendant waived his right to interpose a peremptory challenge to the juror Appleburg.

The rule is universal that a party, either in a civil or criminal action, may waive any statutory right, unless the observance of it is imperatively required.

As a general rule counsel can not consent by their presence and by their silence to any action of the court, and afterwards avail themselves of an objection thereto, which could, and should, have been made at the time.

These principles are elementary and, if applicable, conclude the defendant from complaining of the action of the court in this case.

Are they applicable? I am of opinion that they are. Why not?

It must be admitted that the court had the right, under the authority of The State v. Anderson, 4 Nev. 265, to have sworn the juror, in the first instance, when counsel refused to interpose any peremptory challenge, and if it had done. so the defendant would thereby have been deprived of the opportunity to interpose a peremptory challenge at any time thereafter, except within the discretion of the court. Now, this being true, what magic can be found in the language of the statute that wipes out the refusal of counsel to assert their rights when clearly and distinctly informed by the court that if they are not asserted they will be considered as waived?

Under the provisions of the statute a defendant in a criminal action is entitled to a certain number of peremptory