People v. Overacker

JAMES, J.

Defendant was charged with having committed the crime of murder by killing one Gustavus A. Winn. Upon trial under that charge he was found guilty by a jury of the crime of manslaughter. An appeal has been taken from the judgment of imprisonment entered against him and from an order made denying a motion for a new trial. Upon a former trial the same defendant was convicted of murder in the first degree, and this court upon appeal reversed the judgment and order denying a new trial. (See

People

v.

Overacker,

15 Cal. App. 620, [115 Pac. 756].) In the decision just cited is contained a general statement of facts from which the evidence heard at the second trial made no substantial variance. It will.therefore not be necessary to reiterate here that narrative.

Among the errors assigned it is claimed on behalf of defendant that the trial court decided wrongly in its rulings on challenges for cause interposed as to a number of the jurors. Only two of such jurors so objected to remained upon the jury, however, as the defendant, exercising his right to peremptorily challenge the persons offered, excused all of them except L. C. Shadel and William Boyer. When the jury was finally completed and sworn defendant had exhausted all of his peremptory challenges. It is, therefore,

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shown that the defendant, by reason of not having the right to exercise further peremptory challenges, was compelled to accept two men who were not satisfactory to him. All of the jurors challenged on the ground that they entertained an actual bias as to the defendant’s guilt or innocence, disclosed upon their examination that they had formed opinions upon the matter at issue, and nearly all of them stated that it would require evidence to remove such opinion. They were, therefore, disqualified to act, unless it was made to appear, under the exceptional eases provided for by section 1076 of the Penal Code, that their opinions were founded upon public rumor, statements in public journals, or common notoriety, and that they could, notwithstanding such opinions, act impartially and fairly upon the matters to be submitted to them. A trial judge in determining the competency of a juror and in deciding whether such juror can lay aside any preconceived opinion which he may have and act f airly and impartially, is called upon to determine questions of fact, and an appellate court in reviewing such rulings will find no question of law presented unless the evidence taken upon the examination of the juror is entirely uncontradictory. In other words, if the evidence as presented to the trial judge is such as might justify a conclusion to be made thereoni, either in the affirmative or negative, of the question of competency, the determination of the trial court upon that question is final and conclusive. In the case of