People v. Zeigler (1902) · DecisionDepot

People v. Zeigler

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Feb 6, 1902 No. Crim. No. 788.Published

Before: Garoutte, Temple

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Holding. The court held that the established rule, which denies a defendant the right to begin the jury selection process anew and receive a fresh set of peremptory challenges when a juror is excused for sickness after being sworn, should be maintained. Consequently, the judgment was reversed and the cause remanded for a new trial.

Issues

Whether a defendant is entitled to begin the jury selection process anew and receive a full set of peremptory challenges when a juror is excused for sickness after being sworn.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The judgment and order are reversed and the cause remanded for a new trial.”

“The general rule, however, is, that the excusing of a juror before the jury is completed is but an incident, the possibility of which was contemplated by the legislature in determining the number of peremptory challenges allowed.”

Synopsis

' The facts are stated in the opinion of the court.

Opinion — Temple

TEMPLE, J.

The defendant having been convicted of murder in the first degree and sentenced to imprisonment for life, has appealed from the judgment and from an order refusing a new trial.

[463]

Appellant’s principal point, and the only one which I find it necessary to consider, arises upon an exception taken while impaneling the jury. On the commencement of the trial twelve jurors were called and sworn to answer questions. Of these, three were finally sworn to try the case. This consumed the first day of the trial, and defendant had then used six of his peremptory challenges. On convening court on the following day, the court excused one of the jurors who had been accepted and sworn to try the case, on account of sickness. Upon this matter the bill of exceptions recites: “The defendant at that time duly excepted to the excusing of said juror and moved that the rest of the jurors be excused, and the impaneling of the jury be commenced anew.” After some colloquy between the court and counsel, the court denied the request, and the defendant excepted. Then, to make the matter certain, counsel again demanded that the trial should begin anew, and that the jurors sworn be discharged. The court again denied the motion, and exception was taken.

The court proceeded to complete the jury, retaining the two already sworn, who were not, however, resworn, nor was defendant allowed more than his fourteen remaining peremptory challenges. These remaining challenges were exhausted when the eleventh juror was accepted and sworn. Another juror was then called and examined and passed as to challenges for cause, and was then challenged peremptorily by defendant. The court denied the challenge on the ground that defendant had used all his peremptory challenges, and the juror was sworn and as a juror participated in the trial. Defendant had made use of but fourteen peremptory challenges since the sick juror was excused. Had the trial been begun anew, as directed by section 1123 of the Penal Code (if that section is applicable), defendant would have been entitled to six more challenges. That he was denied this right is the grievance presented by this appeal.

The point was decided by this court in

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Dissent — Garoutte

GAROUTTE, J., dissenting.

I am compelled to dissent from the conclusion declared in this case. It may be conceded support for it is found in

People

Stewart,

64 Cal. 60, which was afterwards followed in

People

Wong Ark,

96 Cal. 125, without further consideration of the question. But the decision in

People

Stewart,

upon careful examination, I conclude, is wholly unsatisfactory as containing sound exposition of the law, and should not be longer followed. That decision has been carefully reviewed in

State

Hasledahl,

2 N. D. 521, and the reasoning found there pointing out its unsoundness appears to be conclusive.

The decision in

People

Stewart,

64 Cal. 60, is inconsistent upon its face, for it declares that the defendant was entitled to twenty additional peremptory challenges, for the reason that after the sick juror was excused the trial, in the language of the statute, must “begin anew”; and it is then said, the trial beginning anew, the defendant necessarily is entitled to twenty challenges. The court also declared that the impanelment of the jury was part of the ’’trial.” Yet in that case it is apparent that the trial did not “begin anew,” in the sense that the impanelment of the jury was part of the trial, for the eleven jurors already in the box were still retained there.

It is plain that the section of the Penal Code (1123) here involved refers to a “trial” in a limited sense of the word,—that is, the procedure after the impanelment of the

[466]

jury. In

People

Stewart,

64 Cal. 60, there appears to have been twelve jurors selected and sworn at the time the juror was excused for sickness. The defendant at that time had already exercised nineteen peremptory challenges, and by the decision it was held that he was entitled to twenty more, or thirty-nine in all." In the case at bar, the defendant having exercised six peremptory challenges when the juror was excused, it is now held he is entitled to exercise twenty more, making twenty-six in all. These facts alone seem to stamp the conclusion of the court as unsound; for there is no law in this state which allows a defendant more than twenty peremptory challenges in any ease. It may be further suggested that the conclusion following from these views tends to the prompt and certain administration of justice*

Beatty, C. J., and Van Dyke, J., concurred in the dissenting opinion.

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Synopsis

Opinion — Temple

TEMPLE, J.

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Dissent — Garoutte

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