People v. Atherton

By the Court: The prisoner having been convicted in the court below of the crime of murder in the first degree, in the felonious killing of Edgar Gr. May, and adjudged to suffer death, brings this appeal from the judgment, and from an order denying his motion for new trial:

1. We are unable to discover any error in the action of court below denying the motion of the prisoner to change the place of trial of the case. Though the point is made in form, no argument in its support has been submitted, and it is understood to have been abandoned.

2. In impaneling the trial jury, T. V. Johnson, who had been returned upon the venire, having stated that he “did not like to have anything to do with a case where death was at stake,” was thereupon challenged by the District Attorney for implied bias. The challenge was sustained by the [496]court, and Johnson not permitted to serve as a juror. To the action of the court in sustaining the challenge, an exception was reserved by the prisoner. Section 1170 of the Penal Code (which is in this respect identical with section 433 of the former Criminal Practice Act), provides that on the trial of an indictment, exceptions may be taken by the prisoner to a decision of the court upon a matter of law “in disalloiuivg a challenge * * * to an individual juror for implied bias.” In People v. Murphy (45 Cal. 142), the provisions of the statute upon this point were considered, and we there held, in accordance as we think with the plain intent of the statute, that the action of the court in allowing a challenge to an individual juror for an implied bias is not the subject of an exception.

3. At the trial the court below charged the jury as follows: “That if the defendant, knowing the deceased to be unarmed, provoked a quarrel with deceased and voluntarily engaged in a combat with him, having, himself, upon his person, and concealed, a deadly weapon, proposing to use the same on the deceased, and did in $uch combat, and not in self-defense, use such weapon, and slay the deceased therewith, such killing is murder. ”

To the giving of this instruction the prisoner reserved an exception, and now claims that it involves an error, entitling him to a reversal of the judgment.

In considering the propriety of this instruction it should be borne in mind that, under the provisions of the statute now in force in this State, the jury not only, as formerly, by their verdict, ascertain the guilt or innocence of the prisoner, but in case they find him guilty of the crime of murder in the first degree, also determine whether he shall suffer the extreme penalty of the law or imprisonment in the penitentiary. (People v. Welch, 49 Cal. 174.)