People v. Plyler

GAROUTTE, J.

—Defendant has been convicted of mayhem, and appeals from the judgment and order denying his motion for a new trial.

Under objection and exception the court allowed various jurors upon their

voir dire

to answer the question, “Do you believe thait a man has the right to take the law into his own hands and thereby commit a crime?” The attorney general

[381]

contends that the question was clearly proper for the purpose of securing light upon the minds of the jurors with a view to a peremptory challenge, and for authority relies upon

People v. Car Boy,

57 Cal. 102. It would seem that

People v. Hamilton, 6

2 Cal. 378, to some degree at least, curtails the doctrine of the previous case. Tet, aside from any question of peremptory challenge, we deem the action of the court in allowing the question entirely proper. It is, in effect, asking the prospective juror, if taken upon the panel will he decide the case according to the law and the evidence. Certainly, a juror who declares that he believes a party is justified in taking the law into his own hands in certain cases, notwithstanding he commits a crime thereby, should not be taken upon a jury. The identical case upon trial might be one of those cases which the juror had in mind when making such a statement, and a man in that mental condition should not be taken. He has a bias which in law disqualifies him as a competent juror. Pc' be sure, if it should be developed upon further examination that the case upon trial could not, under any circumstances, come within the class toward which the witness’ bias extended, then possibly the juror would be qualified. But in this case the various jurors in answer to this question declared in the negative, and the examination there closed. Clearly, there was no substantial error in allowing the question to be answered.

One Bradley testified at the preliminary examination of the defendant. He was a very important witness. At the trial, his evidence taken at the preliminary examination was offered, supported by an attempted showing that he had since died. Section 686 of the Penal Code provides that this kind of evidence may be introduced “upon it being satisfactorily shown to the court” that the party is dead or insane, or cannot, after due diligence, be found in the state. The sole showing made by the prosecution going to the fact of the death of the witness was in the form of an affidavit made by his sister, to the effect that he was dead. This affidavit was admitted under objection. Any evidence introduced to show the death of the witness was as much a part of the trial as any other part of it. And the fact that the witness was dead could no more be shown by affidavit than the fact that declarations could be shown by affidavit to have been made under the sense of im