People v. Boling

Foote, C. The defendant was convicted of the crime of manslaughter, under an information charging him. with murder; from the judgment and an order denying a new trial he appeals.

His first point is, that the court erred in not allowing his challenges as to three persons sworn to answer ques[381]tions as jurors, on the ground of actual bias. There was no exception taken to the decision of the court in the admission or rejection of testimony upon the trial of the challenges.

It has been often held by the appellate court that no exception can be taken to a decision disallowing a challenge to a juror for actual bias; that section 1170 of the Penal Code does not authorize it. (People v. Riley, 65 Cal. 108, and cases there cited.)

It is also urged that the court erred in giving, of its own motion, a part of instruction 8, which is: “When the act is proved to have been done by the defendant, if it be an act itself unlawful, the law in the first instance presumes it to have been intended, and the proof of justification or excuse lies on the defendant to overcome this legal and natural presumption.” And also in giving in the same way this part of instruction 9: “Malice is implied by law from any deliberate, cruel act, committed by one person against another, however sudden; as when a man kills another suddenly, without any considerable provocation, the law implies malice, and unless overcome by preponderating proof the other way, it must be held murder. “If malice be proved to the satisfaction of the jury, beyond all reasonable doubt, to have existed a short time before the crime was committed, if any there was, it will be presumed to have continued down to the actual commission, unless modifying circumstances are shown to have taken place, or the defendant is in some other way proved to have acted under fresh controlling motives.”

As to the last-mentioned instruction, it may be said that, even conceding it to have been erroneous under the rule laid down in People v. Bushton, 80 Cal. 160, we do not perceive that the defendant suffered any injury. He was not convicted of murder, where the ingredient of malice is necessary to be proven, but was convicted of manslaughter. The instruction could not have preju[382]