Vance v. Richardson

McFarland, J. Appeal by defendant from a judgment rendered for plaintiff. The action is to recover damages for an alleged assault and battery committed by appellant upon the person of respondent. The jury gave damages in the sum of four hundred and fifty dollars. The only questions involved relate to certain alleged errors of law.

Appellant contends that the court erred in a ruling concerning his right of peremptorily challenging jurors. It seems that during the examination of the jurors, and before the panel was filled, each party had alternately exercised peremptory challenges. When the panel was completed it was appellant’s turn to challenge, and his attorney said: “ I will pass our peremptory for the present.” The court asked him if he was satisfied with the jury. Counsel replied that it was his right then to challenge, but that he waived it for the present; that if plaintiff exercised his right the panel would be filled again; and that if plaintiff did not exercise a challenge then appellant would nevertheless have the right to challenge another juror. The court informed him that the court did not understand it that way ; and that if he did not then exercise his peremptory challenge, and the plaintiff should express his satisfaction with the jury, [416]appellant would not afterward be allowed another peremptory challenge. Appellant excepted. The attorney for respondent then said: “ I am satisfied with the jury.” The attorney for appellant then said: “We now ask the court to permit us to exercise our right of peremptory challenge”; and the court said: “I will deny the request.” Appellant excepted. That was all that occurred. Appellant did not offer a challenge to any designated juror.

Assuming that the above presents a definite ruling that can be reviewed, and not a mere abstraction, we see no error committed by the court—and certainly none of which appellant can justly complain. t It has been said several times that it is the proper practice to have twelve jurors in the box before requiring the parties to exercise their peremptory challenges, and then to call another juror whenever a peremptory challenge shall have been exercised. (People v. Scoggins, 37 Cal. 679; Taylor v. Western Pac. R. R. Co., 45 Cal. 323; Silcox v. Lang, 78 Cal. 118.) Then the parties must challenge alternately as provided by section 601 of the Code of Civil Procedure. In the case at bar the parties, without objection by either, adopted the practice of alternately exercising their peremptory challenges while the jurors were being examined and before the panel was filled. Under this method, when the panel was filled, it was appellant’s turn, as he admits, to challenge, and, if he desired to do so, he ought to have exercised his right then. He does not complain that the court forced him to challenge before the panel was full; he could not have made such a complaint, because the panel was full. We do not see, therefore, how he was prejudiced, or that he has any just right to complain. He merely sought an advantage to which he was not entitled. There is nothing in this view inconsistent with any of the authorities cited.