People v. Murphy

By the Court: The prisoner was convicted of the crime of murder in the first degree and sentenced to be executed on Friday, the 3d of Dovember, 1871. Do point is made, or could be successfully made here, against the judgment, in that it undertakes in itself to fix a day to carry the sentence of death into execution; but we had occasion to say in People v. Bonilla, 38 Cal. 99, that “the practice of designating in a judgment of death a day for carrying it into effect is not in keeping with the provisions of the Criminal Practice Act. The day should be designated in the warrant, and not in the judgment.” More or less inconvenience and sometimes delay in the proper administration of criminal justice ensues from a nonobservance by trial Courts of the statute in this respect, and we, therefore, think it proper to again call attention to the practice which ougdit to be pursued in such cases.

1. The first error relied upon is the disallowance of the challenges interposed by the prisoner to the jurors Hitchcock, Smith, and Kingsley. These persons were respectively challenged for implied bias as having formed an unqualified opinion in relation to the guilt or innocence of the prisoner, and the challenges were overruled.

The challenges were not put upon the ground that either of the jurors had expressed, an unqualified opinion as to the [142]guilt or innocence of the prisoner so as to bring the case within the ruling made here in the case of People v. Cottle, 6 Cal. 227, and followed in the case of People v. Brotherton, 4 Cal. 530. The opinions, if any, appearing to have been entertained by the jurors, were certainly not more than mere hypothetical opinions, founded on hearsay or information, and unaccompanied with malice or ill will, and under the Act of March 30th, 1868 (Acts 1867-8, p. 704), the mere formation of such opinions would not support a challenge for implied bias. Besides this, the juror Hitchcock seems never to have formed an opinion at any time, and the jurors Smith and Kingsley, if they ever had any opinions upon the question, were unable to call to mind what those opinion's were, and at the trial had none at all. We are not prepared to say that a juror is to be held disqualified from the mere fact that he had at one time formed an opinion which he had never expressed, and even the purport of which he is unable at the trial to recall to memory.

2. The next point relied upon by the prisoner is that Martin, a person competent to sit as a juror upon the trial of the case, being called upon the venire, was challenged by the people for implied bias, the challenge erroneously sustained by the Court, and Martin thereupon excluded from serving as a juror, to all which the prisoner then and there excepted. But the action of the Court below in this respect was not the subject of an exception, and is not open to review in this Court.