People v. Edwards

Harrison, J.— The defendant was convicted of burglary in the second degree in entering a room of a building on Market street, in San Francisco, with intent to commit larceny, and was sentenced to the state prison for three years.

When the court commenced to impanel the jury for the purpose of trying the defendant, twelve of the jurors who were in attendance upon the court had been impaneled to try another cause, and were then deliberating upon their verdict, and the slips upon which their names were written had been tied together by a rubber band, and placed by the clerk in the jury-box. When five or six jurors had been drawn and sworn in the [544]present case, this other jury came into court with their verdict, and were discharged. The clerk did not, however, remove the band from their names until after ten jurors had been accepted and sworn to try the defendant, nor until after the defendant’s counsel had called the attention of the court to this fact. The defendant’s attorney then moved for the discharge of the jury upon the ground that it had been irregularly and illegally drawn and impaneled, and, after the completion of the jury, made another motion for its discharge upon the same grounds. These motions were denied by the court and exceptions taken. It appears from the minutes of the trial, of which a copy is included in the judgment-roll, that out of the twelve jurors first drawn in the box, four were peremptorily challenged by the defendant, and seven accepted and sworn in the case, and that before ten had been accepted and sworn, three others were peremptorily challenged by the defendant. Of the four next drawn he challenged three peremptorily, and was compelled to accept the twelfth juror against his will.

It does not appear how many jurors were in attendance upon the court whose names should have been in the jury-box before the impaneling of the jury began; but the defendant had the right to have all the names of the jurors from which were to be drawn the jury by which he was to be tried, in the jury-box before the impaneling began. (Code Civ. Proc., sec. 246.) It is to be assumed that the defendant knew the names of the jurors in attendance upon the court, as it was a part of the records of the court, and also those to whom he might wish to take a perempiory challenge. The right of peremptory challenge is one of the chief safeguards of a defendant against an unjust conviction, and courts ought to permit the freest exercise of this right, within the limits fixed by the legislature. Any diminution in the number of names in the jury-box would reduce the proportion of acceptable jurors, and to the same extent diminish the opportunity of the defendant to exclude