People v. Vincent
Before: McFarland
Synopsis
Criminal Law — Jury — Challenge to Panel — Second Venire — Challenge to Jurors Resummoned.—The fact that some of the jurors summoned in a criminal case upon a second special venire had also been summoned upon the first special venire, to which a challenge to the entire panel had been sustained by the court, upon the ground of the bias and prejudice of the deputy sheriff who summoned them, furnishes no ground to a challenge of the entire panel of the second venire. Whatever objections might be had to the second panel should be presented as challenges to individual jurors.
Id.—Power of Court to Direct Summons of Jurors.—Under section 226 of the Code of Civil Procedure, the court may at any time direct the sheriff to summon jurors from the body of the county, although there be ■ names of properly selected regular jurors in the jury-box; and when from any cause there are no regular jurors to he drawn from, the court may exercise the power granted by said section.
Id. — Change of Venue — Discretion. — Although the discretion of the trial court in granting or refusing a change of venue in a criminal action is not an arbitrary discretion, yet where its exercise has not gone beyond legitimate and reasonable limits, it cannot he rightfully interfered with by the appellate court.
Id. — Homicide — Drunkenness — Instruction. — Upon a prosecution for murder, an instruction to the jury that evidence of drunkenness can only be considered by them for the purpose of determining the degree of crime, and for such purpose it should be received with great caution, is correct.
Id. —Death Penalty — Amendment of Code—Prior Offenses.—The act of the legislature of March 31,1891, amending sections 1217 and 1229 of the Penal Code, relating to the time and place for the execution of the death penalty of one convicted of murder in the first degree, does not apply to convictions for offenses committed prior to its enactment.
McFarland, J. Appellant was convicted of the crime of murder in the first degree, and appeals from the judgment, and from an order denying a motion for a new trial.
1. We see no errors in the rulings of the court below in the matter of impaneling the jury.
It appears that the regular venire of jurors having been exhausted before the jury was completed, the court ordered a special venire to be summoned by the sheriff; that upon the return of the sheriff, the appellant interposed a challenge to the entire panel of jurors summoned upon said special venire, upon the ground of the bias and prejudice of the deputy sheriff who summoned them; and that said challenge was by the court sustained. Appellant then interposed a challenge to the regular venire of jurors, upon the ground that they had not been drawn in the manner as prescribed in section 205 of the Code of Civil Procedure, and the court also sustained that challenge. The court then ordered a second special venire to be issued for one hundred jurors, and upon the return of the sheriff, it appeared that of the one hundred jurors summoned, several were jurors who had also been [427]upon the first special venire to which a challenge had been sustained for bias of the officer who summoned them. Appellant then interposed a challenge to the panel (of the second special venire), upon the ground that a part of the panel was composed of persons who were upon the first special venire, and for which the challenge for bias of the officer had been sustained as aforesaid; and upon the further ground (as we understand it) that because the drawing of regular jurors for the year was invalid, therefore there could be no valid order for the summoning of special jurors by the sheriff. As to the first point, it is clear that the fact that á few persons summoned on the second venire had also been summoned on the first furnished no basis for a challenge to the panel. It is not made a ground for such challenge by the statute. (Pen. Code, sec. 1064.) Whatever legal objections appellant may have had to those persons should have been presented as challenges to individual jurors. As to the second point, it was held in Levy v. Wilson, 69 Cal. Ill, and other cases, that the court, under section 226 of the Code of Civil Procedure, may at any time direct the sheriff to summon jurors from the body of the county, although there be names of properly selected regular jurors in the jury-box; and when, from any cause, there 'are no regular jurors to be drawn from, the very case arises where the court may, without any doubt whatever, exercise the power granted by said section 226.
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