People v. Vasquez

SHAW, J.

Defendant was convicted of the crime of rape, committed upon 'a female child under the age of sixteen years. He appeals from the judgment and an order denying his motion for a new trial.

The sheriff, under an order for a special venire, summoned a panel of thirty-five men from which to select a jury to try the ease. Defendant, upon the ground specified in section 1064 of the Penal Code, interposed a challenge to the entire panel. Thereupon an examination was had and evidence introduced, from which it appeared the sheriff had formed and expressed an opinion adverse to defendant; whereupon, the court allowed the challenge and discharged the jury. Immediately thereafter, the court made a minute order as follows: “There being no jury in attendance on this court to try this cause, in consequence of allowing said challenge interposed by the defendant, it is ordered that the sheriff summon in the manner provided by law twenty good and lawful men to-be and appear in this court on August 13th, 1907, at two o ’clock P. M., to act as trial jurors in this cause. ’ ’ Pursuant to said minute entry, an order directed to the sheriff was duly issued out of the clerk’s office commanding such sheriff to-summon twenty men to appear at 2 o’clock of that day to-act as trial jurors in said case. The sheriff upon the same day made return to the said writ certifying the names of twenty men so summoned to act as jurors, nineteen of whom were identical with those theretofore discharged from the panel under defendant’s challenge thereto. This return was made and signed by “V. McPadden, Sheriff. By J. L. Walsh, Under Sheriff. ’ ’ Thereupon defendant interposed a challenge to this entire panel upon the grounds of bias and prejudice of the-officer who summoned said jurors, and the fact that such officer had formed and expressed an opinion unfavorable to defendant. Upon the evidence introduced and it being stipulated that the sheriff in person had not summoned any of said jurors, the challenge was denied. A second and third panel

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of jurors were summoned under like orders and with like return, to both of which defendant interposed a like challenge, and the same was by the court denied. Defendant exhausted all peremptory challenges to which he was entitled.

The court found that the sheriff, by reason of his having formed and expressed an opinion adverse to the defendant, was disqualified under the provisions of section 1064 of the Penal Code from summoning jurors to try the case, notwithstanding which fact it issued an order commanding him to summon a second special venire from which to select a jury to serve in the trial thereof. In so doing, and in denying the defendant’s subsequent challenge to the special panel summoned under the order directed to the sheriff and executed and returned by said sheriff, through his deputy or under sheriff, the court erred.