People v. Lytle

SHAW, J.

The information contained two counts. The first charged the defendant with the crime of assault with caustic chemical, as defined in section 244 of the Penal Code, in that he did, on or about December 8, 1915, throw upon the person of Thomas C. Potts a certain vitriol, corrosive acid, nitric acid, and caustic chemical, with intent to injure and dis-,

[361]

figure the body and person of said Potts. The second count charges defendant with a like offense committed upon the same person, to wit, Thomas 0. Potts, on June 12, 1916. Defendant was found guilty as charged in each of said counts so contained in the information, and prosecutes this appeal from the judgment pronounced upon him following his conviction.

One of the chief errors assigned by counsel for appellant and to which he devotes a large part of a voluminous brief is that the court erred in denying his challenge for cause to certain jurors called to try the case. The condition of the record, however, is such that this court cannot review the alleged error. Under the law defendant was entitled to ten peremptory challenges, by the use of which, unless his right was exhausted by the exercise thereof, he might have excluded the objectionable persons from the jury. There is absolutely nothing in the record showing that defendant exercised any of the peremptory challenges to which he was entitled. This being true, and conceding the court erred, it cannot be said that he was prejudiced by- the erroneous rulings.

(People

v.

Durrant,

116 Cal. 179, [48 Pac. 75];

People

v.

Winthrop,

118 Cal. 85, [50 Pac. 390].)

In justice to counsel it should be said that he

claims

to have exercised all of his peremptory challenges by writing the names of jurors made the subject of such challenges upon slips of paper and passed them to the trial judge, in accordance with an alleged rule of court. No record of such action was made, as shown either by the minutes of the court or in the stenographic notes of the reporter. No protest or objection appears to have been made by counsel for appellant to compliance with this novel procedure which deprives his client of the right to have the alleged erroneous rulings of the court in denying challenges of jurors for cause reviewed on appeal. In our opinion, no warrant exists in law for a rule or procedure which deprives an accused of a record upon which he is entitled to have alleged erroneous rulings made in the course of his trial reviewed. While the Constitution accords to an accused the right to a public trial, nevertheless, if denied him, he must on appeal present a record authenticated as the law directs affirmatively showing the fact. Since the record fails to show that appellant had exhausted his peremptory challenges, he could not have been prejudiced by