1065. If challenge allowed, jury to be discharged; if disallowed, to be impaneled. SEC. 1065. If, either upon an exception to the challenge or a denial of the facts, the challenge is allowed, the court must discharge the jury so far as the trial in question is concerned. If it is disallowed, the court must direct the jury to be impaneled. [Amendment, approved April 9, 1880; Amendments 1880, 20 (Ban. ed. 166); took effect immediately.]

1066. Defendant to be informed of his right to challenge individual jurors.

SEC. 1066. Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror he must do so when the juror appears, and before he is sworn. "The object of this provision of the law is to protect the rights of the defendant in the matter of challenging jurors. He should be informed of the fact that if he desires to challenge any particular juror, he must exercise that right before the juror is sworn; but it appears from the record in this case that the defendant's rights in this respect were fully understood by him and his counsel, and the

privilege of challenging jurors was exercised to a large extent in the case. It is true that the court omitted a duty imposed by law, but it clearly appears that the defendant was not in any manner prejudiced by the error complained of, and such being the case, the omission of the court in the matter referred to constitutes no sufficient ground for reversing the judgment:" People v. Mortier, 58 Cal. 262, 266.

1067. Kinds of challenges to individual juror.

SEO. 1067. A challenge to an individual juror is either:

1. Peremptory; or,

2. For cause.

1068. Challenge, when taken.

SEC. 1068. It must be taken when the juror appears, and before he is sworn to try the cause; but the court may for cause permit it to be taken after the juror is sworn, and before the jury is completed.

Challenge, when taken.-Defendant has a right to interpose a peremptory challenge to a juror at any time after his name is drawn, and before he is sworn to try the cause: People v. Ah You, 47 Cal. 121. And the court has no power to adopt a rule compelling a defendant to interpose his peremptory challenges at any particular time: People v. Jenks, 24 Id. 11. The court, in the exercise of sound discretion, may allow the prosecution to interpose a peremptory challenge to a juror after he has been accepted and before he is sworn to try the cause: People v. Montgomery, 53 Id. 576. It is not error to refuse permission to defendant to interpose a peremptory challenge to a juror after he has been sworn to try the case, no cause being shown: People v. Rodriguez, 10 Id. 50. The defendant has not the right to have twelve jurors in the box before he is required to exercise his right to challenge, peremptorily or for cause: People v. Iams, 57 Id. 115; People v. Russell, 46 Id. 121; People v. Scoggins, 37 Id. 676; and see next paragraph.

Order of challenges.-In People v. Scoggins, 37 Cal. 676, the court said: "In a civil action each party has the whole twelve before exercising his right of peremptory challenge as to any; and if some are excused for cause, the deficiency must be supplied with other names, who may in like manner be examined, until there shall be found in the box twelve men whom the court shall adjudge to be competent and qualified jurors, and thereupon each may exercise his right of peremptory challenge; but neither can be required to exercise it prior to this stage of the proceeding. The theory of the law probably is that the right to challenge

peremptorily cannot be exercised so judiciously
until the panel is filled with competent and
qualified jurors, of whom each party is allowed
to reject a certain number without assigning
any reason therefor. But while this is the rule
in civil actions, it is slightly varied in criminal
actions by section 341 of the criminal practice
act. Twelve names must be drawn, as in a
civil action, and the defendant may examine
the whole twelve before exercising the right of
peremptory challenge as to any, and those not
challenged or excused must then be sworn to
try the issue; after which as many more
names as will make up the deficiency must
be drawn from the box, when the same pro-
cess will be repeated until the jury is com-
plete. In a civil action, none are to be sworn
until the jury is complete, and the peremptory
challenge may be made at any time before
the jury is sworn to try the issue; but under
section 341, in a criminal action, those not
challenged or excused must be sworn at the
time; and the same process must be repeated
until the jury is complete. If, however, the
party has omitted to make his challenge before
a juror is sworn, 'the court may, for good
cause, permit it to be taken after the juror is
sworn, and before the jury is completed.' After
the whole twelve are sworn and the jury is com-
plete, no further challenge is permissible, even
with leave of the court. This variance between
the methods of selecting juries in criminal and
civil actions was probably dictated by the sup-
posed necessity of placing the jurors in a crim-
inal action under the control of the court
during the process of forming the jury.
In order to avoid all misconstruction on this

important point in practice, we repeat that in a criminal action twelve names must be drawn from the jury-box, and the defendant may examine each separately, and exhaust his challenges for cause before challenging any one peremptorily. If he should accept, say six, and challenge six, those accepted must then be

sworn, and six additional names must be drawn and presented for examination, with which the same process should be repeated, and so continued until the jury is complete." This was also held to be the rule in People v. Russell, 46 Cal. 121; People v. Iams, 57 Id. 115, 125.

1069. Peremptory challenge, what and how taken.

SEC. 1069. A peremptory challenge can be taken by either party, and may be oral. It is an objection to a juror for which no reason need be given, but upon which the court must exclude him.

Peremptory challenges: Sec. 1068, note; People v. Weil, 40 Cal. 268; People v. Jenks, 24 Id. 11; People v. Reynolds, 16 Id. 128; People v. Kohle, 4 Id. 198.

tried by a juror against whom no legal objection can be urged:" People v. Hamilton, 62 Cal. 377, 383. The law gives the defendant the benefit of any knowledge obtained after a trial of the issue of bias, "but does not afford him an opportunity to examine a juror for the avowed object of determining whether he will challenge him peremptorily:" Id. 382. The earlier case of Watson v. Whitney, 23 Id. 379, declaring otherwise, is not followed; and People v. Car Soy, 57 Id. 102, is distinguished from the case before the court.

1070. Number of peremptory challenges. SEC. 1070. If the offense charged be punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to twenty and the state to ten peremptory challenges. On a trial for any other offense, the defendant is entitled to ten and the state to five peremptory challenges. [Amendment, approved March 30, 1874; Amendments 1873-4, 441; took effect July 1, 1874.] Twenty peremptory challenges: People v. Hamilton, 62 Cal. 377. In People v. Clough, 59 Id. 438, 441, a prosecution for robbery, the defendant claimed the right to twenty peremp tory challenges. The contention was that robbery might be punished by imprisonment for life, and therefore twenty peremptory challenges ought to be allowed. "The section in question," say the supreme court, "has never received a judicial interpretation, and the point is a new one. We are called upon to decide it without precedent or authority to aid us." After quoting the section, they continue: "Such is the language of the section now under consideration. We have reached the conclusion that it is only in capital cases, or cases in which

a life sentence is in terms affixed by the legis lature as the punishment of the crime, that the defendant is entitled to twenty peremptory challenges. Robbery is not such a crime. It is true that the maximum punishment is not designated by the statute, but the minimum is, and that need not be for a longer time than one year." The ruling of the lower court was therefore affirmed.

In the later case of People v. Harris, 61 Cal. 136, a prosecution for robbery, where the information charged a previous conviction of a similar crime, the defendant was held entitled to twenty peremptory challenges, the punishment being in terms imprisonment for life.

1071. Definition and kinds of challenge for cause.

SEC. 1071. A challenge for cause may be taken by either party. It is an objection to a particular juror, and is either:

1. General-that the juror is disqualified from serving in any case; or,

2. Particular that he is disqualified from serving in the action on trial.

1072. General causes of challenge.

SEC. 1072. General causes of challenge are:

1. A conviction of felony;

2. A want of any of the qualifications prescribed by law to render a person a competent juror;

3. Unsoundness of mind, or such defect in the faculties of the mind or organs of the body as renders him incapable of performing the duties of a juror. Qualifications required of jurors: Code Civ. Proc., sec. 198; see Const., art. 20, sec. 11. The fact that the names of two of the jurors is not on the assessment roll for the previous year constitutes no ground for reversal: People v.

Mortier, 58 Cal. 262, citing People v. Sanford,
43 Id. 29; People v. Chung Lit, 17 Id. 320.
Exemptions: Code Civ. Proc., sec. 200.
Challenge, what constitutes: Sec. 1055,

note.

1073. Particular causes of challenge.

SEC. 1073. Particular causes of challenge are of two kinds:

1. For such a bias as, when the existence of the facts is ascertained, in the judgment of law disqualifies the juror, and which is known in this code as implied bias;

2. For the existence of a state of mind on the part of the juror in reference to the case, or to either of the parties, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party, which is known in this code as actual bias. [Amendment, approved March 30, 1874; Amendments 1873-4, 441; took effect July 1, 1874.]

Implied bias: Sec. 1074. Actual bias: Sec. 1076. Challenge, how taken.-A challenge must state the specific grounds upon which it is taken; otherwise it will be disregarded. A challenge which merely states that the juror is challenged for cause, ""for actual bias," or for implied bias," is no challenge: People v. Cotta, 49 Cal. 166; People v. Buckley, Id. 241; People v. Walsh, 43 Id. 447; People v. McGungill, 41 Id. 429; People v. Hardin, 37 Id. 258; People v. Dick, Id. 277; People v. Reynolds, 16 Id. 128. "I challenge the juror,"

is not sufficient: People v. Cochran, 61 Id. 548. Upon the examination of a juror who has stated that he has formed a qualified opinion as to the guilt or innocence of the defendant, the juror cannot, in the absence of a challenge for actual bias, be asked whether he believes the defendant to be guilty or not guilty. Upon a challenge for actual bias such a question might properly be asked as tending to show an existence of actual bias: People v. Hamilton, 62 Id. 377. In this decision the early cases of People v. Williams, 6 Id. 206, and People v. Backus, 5 Id. 277, are explained.

1074. Grounds of challenge for implied bias.

SEC. 1074. A challenge for implied bias may be taken for all or any of the following causes, and for no other:

1. Consanguinity or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant;

2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages;

3. Being a party adverse to the defendant in a civil action, or having complained against or been accused by him in a criminal prosecution;

4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment or information;

5. Having served on a trial jury which has tried another person for the offense charged;

6. Having been one of a jury formerly sworn to try the same charge, and whose verdict was set aside, or which was discharged without a verdict, after the case was submitted to it:

7. Having served as a juror in a civil action brought against the defendant for the act charged as an offense;

8. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror. [Amendment, approved April 9, 1880; Amendments 1880, 20 (Ban. ed. 166); took effect immediately.]

Challenge, how taken: Sec. 1073, note. Formed or expressed an unqualified opinion.-Prior to the amendment of section 1074, adopted in 1874, the section included, as an addi

tional ground of challenge for implied bias, the following: "Having formed or expressed an un qualified opinion or belief that the prisoner is guilty or not guilty of the offense charged.

This ground of challenge, however, no longer exists, People v. Brown, 59 Cal. 345, 355; People v. Hamilton, 62 Id. 377, though it is in part supplied by the provisions of sections 1073 and 1076, relating to challenges for actual bias. No exception can be taken, however, to an order allowing or disallowing a challenge to a juror for actual bias-the only exception that can be reserved being to rulings admitting or rejecting evidence on the trial of such challenge: Sec. 1170. It would seem that, on appeal, the only question that will be considered, where a challege for actual bias has been taken, is whether or not the trial court erred in admitting or rejecting testimony on the trial of the challenge, and that the decision of the trial court on the question of the fitness of the juror to serve a question of fact-will not be reviewed. And unless an exception is taken to the ruling of the court in admitting or rejecting evidence, a challenge to a juror for actual bias will not be considered at all by the supreme court: People v. Cotta, 49 Cal. 166; People v. Vasquez, Id. 560; People v. Taing, 53 Id. 602. Prior to this amendment, the most common ground of challenge for implied bias was "that the juror had formed or expressed an unqualified opinion" on the merits of the case, and the ruling of the trial court disallowing such challenge was subject to direct review by the supreme court: See People v. Brown, 48 Id.

253; People v. Brotherton, 47 Id. 388; People Brotherton, 43 Id. 530; People v. Edwards, 41 Id. 640; People v. Weil, 40 Id. 268; People v. King, 27 Id. 507; People v. Symonds, 22 Id. 348; People v. Mahoney, 18 Id. 180; People v. Reynolds, 16 Id. 128; People v. Cottle, 6 Id. 227.

Consult People v. Hamilton, 62 Cal. 377, for the proper practice in regard to examination and challenge of jurors, to fishing examinations with a view to peremptory challenges, and the like.

Defendant to exhaust all peremptory challenges.-The ruling of the court disallowing a challenge to a juror for implied bias, after which the defendant challenges the juror peremptorily, will not be reviewed, unless it ap pears from the record that defendant exhausted all his peremptory challenges before a jury was secured: People v. McGungill, 41 Cal. 429; People v. Gatewood, 20 Id. 149; People v. Gaunt, 23 Id. 156. But if defendant exhausts all his peremptory challenges, the ruling of the court will be reviewed on appeal: People v. Weil, 40 Id. 268.

Conscientious opinions.—A juror who has such conscientious opinions as would preclude him from finding the defendant guilty in a capital case, upon circumstantial evidence, is not competent if challenged: People v. Ah Chung, 54 Cal. 401.

1075. Exemption not a ground of challenge. SEC. 1075. An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted. Exemption from service-Privilege of the party. A party who accepts a juror, knowing him to be disqualified, is estopped from afterwards availing himself of such disqualification: People v. Stonecifer, 6 Cal. 411. So a defendant who receives a juror whose name is upon the poll-tax list only, cannot, after the verdict, object that he was not a competent juror: Id.; People v. Sanford, 43 Id.

31. An exemption from service on a jury is a personal privilege, and such persons are not disqualified from serving as jurors. If they fail to exercise their privilege, the parties cannot complain: Proffatt on Jury Trial, sec. 119; State v. Wright, 53 Me. 328; State v. Forshner, 43 N. H. 89; State v. Adams, 20 Iowa, 486. Exemption from jury duty: See Code Civ. Proc., secs. 199, 200.

1076. Causes of challenge, how stated-Juror not to be excused.

SEC. 1076. In a challenge for implied bias, one or more of the causes stated in section ten hundred and seventy-four must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section ten hundred and seventy-three must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journals, or common notoriety; provided it appear to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered in the minutes of the court or of the phonographic reporter. [Amendment, approved March 30, 1874; Amendments 1873-4, 443; took effect July 1, 1874.]

Formed or expressed an opinion: See impartial verdict no cause for challenge: Peo note to sec. 1074. ple v. Cochran, 61 Cal. 548.

Newspaper opinion not preventing giving

1077. Exceptions to challenge, and denial thereof.

SEC. 1077. The adverse party may except to the challenge in the same manner as to a challenge to the panel, and the same proceedings must be had thereon as are prescribed in section ten hundred and sixty-one, except 'hat if

the exception be allowed the juror must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge.

SEC. 1078. If the facts are denied, the challenge must be tried by the court. [Amendment, approved March 30, 1874; Amendments 1873-4, 443; took effect July 1, 1874.]

1079, 1080. Appointment and oath of triers.

Sections 1079 and 1080 were repealed by act approved March 30, 1874; Amendments 1873-4, 443; took effect July 1, 1874.

1081. Juror challenged may be examined as a witness.

SEC. 1081. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry.

1082. Rules of evidence on trial of challenge.

SEC. 1082. Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge.

SEC. 1083. The court must allow or disallow the challenge, and its decision must be entered in the minutes of the court. [Amendment, approved March 30, 1874; Amendments 1873-4, 443; took effect July 1, 1874.]