People v. Gilmore

LENNON, P. J.

The defendant was convicted of the crime of manslaughter, and appeals from the judgment and the order denying his motion for a new trial.

Assuming, without deciding, that subdivision 3 of section 199, and subdivision 13 of section 200, Code of Civil Procedure, must be read in connection with section 1072 of the Penal Code, and that when so read these sections formulate a valid challenge for cause to a juror in a criminal case, still it does not appear from the record before us that there was any foundation in fact for such a challenge to the prospective jurors Love, Thoroe and Holliday. Prom the testimony of these three talesmen upon their

voir dire

it appears that each .had served as jurors in certain cases pending and decided in the same court within a year of the trial of the defendant in the case at bar. It appears further as a matter of course that

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upon the termination of each case the jury was discharged, but the order of a trial court discharging a jury upon reaching a verdict in any given case does not mean that the individual jurors are thereby relieved from future jury duty. In the instance of juror Holliday, it affirmatively appears that he had never been' finally discharged from jury service by order of the court. On the contrary, he was in attendance upon the court to serve as a juror on the trial of the defendant in obedience to an express order previously made requiring him to report for further jury duty.

In the case of the other two jurors no showing was made to the trial court that they had been finally discharged from jury service in any court of this state within a year prior to the commencement of the trial of the defendant; and in the absence of such a showing it must be presumed that they were regularly upon the panel, and neither exempted nor disqualified from acting as jurors.

For these reasons, if for no other, the challenges interposed to each of the designated jurors were properly disallowed by the trial court.

There was no error in the ruling of the trial court permitting the witness Shea, who was present during the affray from its inception to its termination in the fatal stabbing of the deceased by the defendant, to testify to all that happened, on the night of the homicide, between Del Vane, the deceased, and Gilmore, the defendant. In the course of his testimony this witness told of a declaration of the deceased made immediately after the stabbing and in the presence and hearing of the defendant, wherein the deceased said to the witness, “Gene, look out,' he’s got something in his hand.’’ The objection made at the trial to this testimony was properly overruled. The witness declared plainly and positively, in answer to repeated questions, that all of the things which he narrated were said and done in the presence and hearing of the defendant. In our judgment the testimony of the witness as to his whereabouts and the position of the defendant during and immediately after the quarrel was neither clouded nor conflicting; but even if it could be fairly argued that the witness was contradictory in his testimony as to the defendant being in a position to know and hear all that was said and done by the deceased after the stabbing, this would