People v. Smith

BEATTY, C. J.

The defendant was accused by information of the crime of murder, and by the verdict of a jury found guilty of manslaughter, upon which verdict a judgment was duly entered. On appeal, this court reversed that judgment and remanded the cause for a new trial.

(People

v.

Smith,

121 Cal. 355.) Upon the next trial, defendant was again convicted of manslaughter, and he has again appealed. When the cause came on for trial the last time, the defendant, after having challenged ten jurors peremptorily, attempted to interpose another challenge of the same character, to which the people objected that he was entitled to no more than ten such challenges.

The ruling of the court sustaining this objection stands first among the various assignments of error that have been argued in support of the present appeal, and will be first considered. The defendant’s contention is, that inasmuch as he was charged by the information with the crime of murder, he was, by the express terms of the statute, allowed twenty peremptory challenges. It is true that section 1070 of the Penal Code does provide that if the offense charged be'punishable with death or imprisonment for life, the defendant is entitled to twenty peremptory challenges, and it is true that the crime of murder is punishable with death or imprisonment for life, so that the question is, whether, at the time this eleventh peremptory challenge was interposed, the defendant stood charged with the crime of murder,—whether, in other words, he was on trial for murder; whether the jury about to be sworn could convict him of the crime of murder on the information as it then stood. The information had, as "above stated, originally charged the

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crime of murder, which, of course, included a charge of the lesser grade of homicide, — manslaughter. But the verdict and judgment convicting the defendant of manslaughter was, in legal effect, an acquittal of the crime of murder, and eliminated that part of the charge from the information, leaving only the accusation of manslaughter pending, and when a new trial was ordered by this court, it was only a new trial of the pending issue that was intended, and its only effect was to subject the defendant to a new trial on the charge of manslaughter. The authorities everywhere support these views, as do the former decisions of this court. (See