People v. Lee

SMITH, J.

The defendant was convicted in the lower court of murder in the second degree and sentenced to imprisonment in the state prison for thirty years. He appeals from the judgment and from an order denying a new trial-

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Several points are urged for reversal, which will be considered in the order stated in appellant’s brief. The first of these is, that the court erred in excusing, over the objection of defendant, one of the jurors examined who was in fact not disqualified. But this point has been determined adversely to the defendant by the decision in

People

v.

Arceo,

32 Cal. 40, and several later cases affirming that decision.

The next point is, that the court erred in denying the defendant ’s challenge to the panel of jurors without permitting, or at least without waiting for, him to prove the facts upon which his challenge was made. This doubtless was error. But it seems to have been the result of a misunderstanding upon the part of the court as to the defendant’s offer to prove the facts; and on the next day, when the court’s attention was directed to the error, it offered the defendant opportunity to make the proof; which the defendant declined to avail himself of. The effect of the proof, if made, would have been to set aside the panel, and thus to give to the defendant all the advantage he would have had had he been allowed to make the proof in the first place. He was therefore in no way injured.

Another point is an alleged departure from the method prescribed by the provisions of the code for the impaneling of a jury. Bight jurors had been accepted and sworn to try the ease, and, the original twelve having been disposed of, four others were drawn from the box by the clerk. Of these one was challenged for cause and the challenge allowed, and the court ordered the name of another juror to be drawn from the box, over the defendant’s objection; who insisted that the remaining three should be first examined before a new name was drawn. And the same ruling occurred with reference to one or more of the other jurymen. But this was not in conflict with the provisions of the codes governing the subject. It is indeed provided by section 1068 of the Penal Code that the challenges of the defendant, both peremptory and for cause, “must be taken when the juror appears, and before he is sworn to try the cause”; and under this provision it was competent for the court to require the defendant to ottercise his right of challenge, both peremptory and for cause, as to each juror immediately upon his appearance.