Challenge when jury is summoned but

examined to prove or disprove the facts alleged as the ground of the challenge.

1064. (§ 337.) When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any summoning bias of the officer who summoned them, which would

not drawn,

for bias in

officer.

If

challenge allowed, jury to be dis

charged: if

be good ground of challenge to a juror. Such challenge must be made in the same form, and determined. in the same manner, as if made to a juror.

NOTE.-The case of The People vs. Coyodo, 40 Cal., p. 592, involved the construction of this section; and the Court held that when the trial of a challenge shows that the Sheriff acting had formed and expressed an opinion that the defendant was guilty, the challenge to the panel, on the ground of the bias of the officer, should have been sustained.-See, also, People vs. Rodriguez, 10 Cal., p. 50.

1065. (§ 338.) If, either upon an exception to the challenge or a denial of the facts, the challenge is allowed, the Court must discharge the jury, so far as disallowed, the trial of the indictment in question is concerned. If it is disallowed, the Court must direct the jury to be impaueled.

to be

impaneled.

Defendant

to be

1066. (§ 339.) Before a juror is called, the deinformed of fendant must be informed by the Court, or under its direction, that if he intends to challenge an individual juror he must do so when the juror appears, and before he is sworn.

his right to challenge individual jurors.

Kinds of challenges

1067. (§ 340.) A challenge to an individual juror

to individ is either:

ual juror.

Challenge,

when taken

1. Peremptory; or,

2. For cause.

1068. (§ 341.) It must be taken when the juror appears, and before he is sworn to try the cause; but the Court may for cause permit it to be taken after the juror is sworn, and before the jury is completed.

NOTE. The order of challenges having been in some doubt, and the provisions considered somewhat contradictory, the Supreme Court, in the case of The People vs. Scoggins, 37 Cal., p. 679, say: "In a criminal action it is the duty of the Clerk, under the direction of the Court (as in a civil action), to prepare separate ballots, containing the names of jurors summoned who have appeared and not been excused, and deposit them in a box, and to draw from the box twelve names, as required by Sec. 159 of the Civil Practice Act" (Sec. 600 of the Code of Civil Procedure; see, also, post in this note). "Thus far the proceeding is the same in criminal and civil actions. In a civil action each party has the whole twelve before exercising his right of peremptory challenge as to any; and if some are excused for cause, the deficiency must be supplied with other names, who may in like manner be examined until there shall be found in the box twelve men whom the Court shall adjudge to be competent and qualified jurors, and thereupon each may exercise his right of peremptory challenge; but neither can be required to exercise it prior to this stage of the proceeding. The theory of the law probably is that the right to challenge peremptorily cannot be exercised so judiciously until the panel is filled with competent and qualified jurors, of whom each party is allowed to reject a certain number without assigning any reason therefor. But while this is the rule in civil actions, it is slightly varied in criminal actions by Sec. 341 of the Criminal Practice Act (being Sec. 1068 of this Code). Twelve names must be drawn, as in a civil action, and the defendant may examine the whole twelve before exercising the right of peremptory challenge as to any, and those not challenged or excused must then be sworn to try the issue; after which as many more names as will make up the deficiency must be drawn from the box, when the same process will be repeated until the jury is complete. In a civil action none are to be sworn until the jury is complete, and the peremptory challenge may be made at any time before the jury is sworn to try the issue; but under Sec. 341 (this Sec., 1068 of the Code), in a criminal action, those not challenged or excused must be sworn at the time; and the same process must be repeated until the jury is complete. If, however, the party has omitted to make his challenge before a juror is sworn, "the Court may, for good cause, permit it to be taken after the juror is sworn, and before the jury is completed." After the whole twelve are sworn and the jury is complete, no further challenge is permissi

Per-
emptory
challenge,
what, and

ble, even with leave of the Court. This variance between the methods of selecting juries in criminal and civil actions was probably dictated by the supposed necessity of placing the jurors in a criminal action under the control of the Court during the process of forming the jury. Hence the provision in Sec. 341 (this Sec., 1008), that the challenge "must be taken when the juror appears, and before he is sworn, unless for good cause the Court shall permit it to be taken after he is sworn, and before the jury is completed."

"In order to avoid all misconstruction on this important point of practice we repeat that in a criminal action twelve names must be drawn from the jury box, and the defendant may examine each separately and exhaust his challenges for cause before challenging any one peremptorily. If he should accept, say six, and challenge six, those accepted must then be sworn, and six additional names must be drawn and presented for examination, with which the same process should be repeated, and so continued until the jury is complete.” This opinion was affirmed in the recent case of Taylor, Administrator, vs. West. Pac. R. R. Co., delivered at the October Term of the Supreme Court, in a civil case which it will be profitable to examine in construing this section. As to last sentence of this section, see People vs. Jenks, 24 Cal., p. 11, in support. Without naming the juror or stating the facts coming to his knowledge, a demand or offer to challenge after the twelfth juror is accepted, but not sworn, may be properly refused.— People vs. Rodriguez, 10 Cal., p. 50.

1069. (§ 342.) A peremptory challenge can be taken by either party, and may be oral. It is an objec how taken. tion to a juror for which no reason need be given, but upon which the Court must exclude him.

Number

of per

emptory

challenges.

NOTE. Should a Court adopt a rule requiring s defendant to exercise this right, at a particular time, it would conflict with the preceding section, and it would be error to enforce it.-People vs. Jenks, 24 Cal., p. 11. And this may be exercised after the twelve jurors are passed or taken, but before they are sworn to try the action. People vs. Kohle, 4 Cal., p. 198; People vs. Reynolds, 16 Cal., p. 128.

1070. (§ 343.) If the offense charged is punishable with death, or with imprisonment in the State Prison for life, the defendant is entitled to ten and the

State to five peremptory challenges. On a trial for any other offense, the defendant is entitled to five and the State to three peremptory challenges.

NOTE.-Stats. 1864, p. 394, Sec. 1.

and kinds

1071. (§ 344.) A challenge for cause may be Definition taken by either party. It is an objection to a partic

ular juror, and is either:

1. General-that the juror is disqualified from serving in any case; or,

2. Particular-that he is disqualified from serving in the action on trial.

of chal

lenge, for

cause.

1072. (§ 345.) General causes of challenge are: General 1. A conviction for felony;

2. A want of any of the qualifications prescribed by law to render a person a competent juror;

3. Unsoundness of mind, or such defect in the faculties of the mind or organs of the body as renders him incapable of performing the duties of a juror.

causes of
challenge.

1073. (§ 346.) Particular causes of challenge are Particular of two kinds:

1. For such a bias as, when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this Code as implied bias;

2. For the existence of a state of mind on the part of the juror in reference to the case, which, in the exercise of a sound discretion on the part of the trier, leads to the inference that he will not act with entire impartiality, and which is known in this Code as actual bias; but a hypothetical opinion, founded on hearsay or information supposed to be true, unaccompanied with malice or ill will, does not disqualify a juror, and is not a cause of challenge for either actual or implied bias.

NOTE.-Stats. 1868, p. 704, Sec. 1. See note to Sec. 1078, post.

causes of
challenge.

1074. (§ 347.) A challenge for implied bias may be taken for all or any of the following causes, and for no other:

1. Consanguinity or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant;

2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages;

3. Being a party adverse to the defendant in a civil action, or having complained against or been accused by him in a criminal prosecution;

4. Having served on the Grand Jury which found the indictment, or on a Coroner's jury which inquired into the death of a person whose death is the subject of the indictment;

5. Having served on a trial jury which has tried another person for the offense charged in the indictment;

6. Having been one of a jury formerly sworn to try the same indictment, and whose verdict was set aside, or which was discharged without a verdict, after the case was submitted to it;

7. Having served as a juror in a civil action brought against the defendant for the act charged as an offense;

8. Having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged;

9. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.