character of the diligence that has been used, whether by exhausting the process of the court or otherwise. The facts which such witness will testify to should also be set out, to enable the court to judge of their materiality. People v. Baker, 1 Cal. 403; People v. Thompson, 4 Id. 241; People v. Diaz, 6 Id. 248; People v. Quincy, 8 Id. 89; People v. Gaunt, 23 Id. 156; People v. Williams, 24 Id. 31; People v. Jocelyn, 29 Id. 562; People v. Francis, 38 Id. 183; People v. Mellon, 40 Id. 648; People v. Ashnauer, 47 Id. 98; People v. Ah Fat, 48 Id. 63. Facts also should be set out, from which the court can judge whether there is reasonable ground to believe that the attendance of the absent witness or his testimony can be procured at a future day. People v. Francis, 38 Id. 188; People v. Ashnauer, 47 Id. 98; People v. Ah Fat, 48 Id. 63. It also should appear that the absent witness can not be readily reached by attachment. People v. Weaver, 47 Id. 106. If the testimony of the absent witness would be no defense to the action, the motion should be denied. People v. Williams, 43 Id. 344. On motion for a new trial on the ground of error in denying a motion for a continuance, the affidavits of the absent witnesses should be obtained, showing that they will testify to the facts sought to be proved, or good reason should be shown for not obtaining such affidavits. People v. De Lacey, 28 Id. 589; People v. Jocelyn, 29 Id. 562. 3. Counsel, Sickness of, sufficient ground for a continuance. Logan, 4 Cal. 188. See Lightner v. Menzel, 35 Id. 452. People v. TITLE VII. OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT. CHAPTER I. CHALLENGING THE JURY, §§1055-1088. II. THE TRIAL, §§1093-1131. III. CONDUCT OF THE JURY AFTER CAUSE IS SUBMITTED TO THEM, §§1135–1143. IV. THE VERDICT, §§1147-1167. V. BILLS OF EXCEPTION, §§1170–1176. VI. NEW TRIALS, §§1179-1182. VII. ARREST OF JUDGMENT, §§1185-1188. CHAPTER I. CHALLENGING THE JURY. SECTION 1055. Definition and division of challenges. 1056. Defendants can not sever in challenges. 1057. Panel defined. 1058. Challenge to the jury defined. 1059. Upon what founded. 1060. When and how taken. SECTION 1061. If sufficiency of the challenge be denied, adverse party may except. Exception, how taken and tried. 1062. If exception overruled, court may allow denial, etc. may be examined on trial of challenge. Who 1064. Challenge when jury is summoned but not drawn, for bias in summoning officer. 1065. If challenge allowed, jury to be discharged; if disallowed, to be impaneled. 1066. Defendant to be informed of his right to challenge individ ual jurors. 1067. Kinds of challenges to individual juror. 1068. Challenge, when taken. 1069. Peremptory challenge, what, and how taken. 1070. Number of peremptory challenges. 1071. Definition and kinds of challenge, for cause. 1072. General causes of challenge. 1073. Particular cause of challenge. 1074. Ground of challenge for implied bias. 1075. Exemption not a ground of challenge. 1076. Causes of challenge, how stated. 1077. Exceptions to challenge, and denial thereof. 1078. Challenge, how tried. 1079. Repealed. 1080. Repealed. 1081. Juror challenged may be examined as a witness. 1082. Rules of evidence on trial of challenge. 1083. Decision of court to be entered. 1084. Repealed. 1085. Repealed. 1086. Challenges, first by the defendant and then by the people. 1087. Order of challenges. 1088. Peremptory challenges may be taken after challenges for cause on both sides are exhausted. 1055. A challenge is an objection made to the trial jurors, and is of two kinds: 1. To the panel; 2. To an individual juror. 1. Challenge, What Constitutes.-A defendant exercising his right to challenge, is bound to designate, in some way, the objection upon which he intends to rely. He is not permitted to interpose a challenge of such an indefinite character that it can not be ascertained upon what particular ground it is taken. Unless the cause be alleged, the challenge may be disregarded by the court. People v. Renfrow, 41 Cal. 37; People v. Dick, 37 Id. 277; People v. Reynolds, 16 Id. 128. 2. Court may Excuse Jurors.-The court may, of its own motion, for any good reason, excuse a qualified juror from sitting on the panel in a criminal case; and this will not be error, if the defendant is tried by a jury of lawful men. The defendant is entitled to a lawful jury, but is not entitled, as a matter of absolute right, to have the first juror who is called, and who possesses all the statutory qualifications, sit in his case. Cal. 40. People v. Arceo, 32 1056. When several defendants are tried together they can not sever their challenges, but must join therein. 1. Defendants Tried Jointly.-See People v. McCalla, 8 Cal. 301. 1057. The panel is a list of jurors returned by a sheriff, to serve at a particular court, or for the trial of a particular action. 1. Selecting and Returning Jurors -Code of Civil Procedure, 204– 211, post. 2. Drawing Jurors.-Code of Civil Procedure, 214-220, post. 3. Summoning Jurors.-Code of Civil Procedure, 225-228, post. 1058. A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party. 1. Sec. 1059, n. 1059. A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions, or on the intentional omission of the sheriff to summon one or more of the jurors drawn. 1. Challenge to the Panel.-On the trial of a challenge to the panel, the defendant can not offer his ex parte affidavit in support of the challenge. People v. Brown, 48 Cal. 253. Where but twenty-seven jurors, of thirty-six ordered to be summoned on a special venire, appeared, and the court caused the names of these twenty-seven to be placed in the box, it was held not to be a ground of challenge by defendant to the panel, that the names of the jurors who did not appear were omitted from the box. People v. Stuart, 4 Id. 218. Nor is it a good ground of challenge that the venire is special, and that there was no general venire drawn. People v. Vance, 21 Id. 400; People v. Stuart, 4 Id. 218. There is but one ground of challenge to a special venire, and that is specified in section 1064. People v. Welch, 49 Id. 174. See also, People v. Ah Chung, 54 Id. 398; People v. Rodriguez, 10 Id. 50. 1060. A challenge to the panel must be taken before a juror is sworn, and must be in writing or be noted by the phonographic reporter, and must plainly and distinctly state the facts constituting the ground of challenge. 1061. If the sufficiency of the facts alleged as ground of the challenge is denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered on the minutes of the court, or of the phonographic reporter, and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true. 1062. If, on the exception, the court finds the challenge suffi cient, it may, if justice requires it, permit the party excepting to withdraw his exception, and to deny the facts alleged in the challenge. If the exception is allowed, the court may, in like manner, permit an amendment of the challenge. 1. Amended Challenge.-Where an amended challenge to the panel is allowed, it becomes a substitute for the original. People v. Brown, 48 Cal. 253. 1063. If the challenge is denied, the denial may be oral, and must be entered on the minutes of the court, or of the phonographic reporter, and the court must proceed to try the question of fact; and upon such trial, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge. 1. Evidence on Trial of Challenge.-A witness can not substitute his ex parte affidavit for an oral examination and cross-examination; nor can a defendant, by incorporating his own affidavit into his statement of the grounds of a challenge, make it evidence of the facts averred in the statement. The challenge is the pleading; its averments must be proved by legal evidence. People v. Brown, 48 Cal. 256. 1064. 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 bias of the officer who summoned them, which would 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. 1. Challenge Sufficient, When.—Where the sheriff who summoned the special panel is sworn and examined, and by his testimony discloses that he has formed or expressed an opinion that defendant is guilty, the challenge to the panel on the ground of the bias of the sheriff should be allowed. People v. Coyodo, 40 Cal. 592. See also People v. Welch, 49 Id. 174; People v. Rodri guez, 10 Id. 50. 1065. 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 the trial in question is concerned. If it is disallowed, the court must direct the jury to be impaneled. [Amendment, approved April 9, 1880; in effect immediately. 1066. Before a juror is called, the defendant 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. 1067. A challenge to an individual juror is either: 1. Peremptory; or 2. For cause. 1068. 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. 1. Challenge, When Taken.-Defendant has a right to interpose a peremptory challenge to a juror at any time after his name is drawn, and before he is sworn to try the cause. People v. Ah You, 47 Cal. 121. And the court has no power to adopt a rule compelling a defendant to interpose his peremptory challenges at any particular time. People v. Jenks, 24 Id 11. The court, in the exercise of sound discretion, may allow the prosecution to interpose a peremptory challenge to a juror after he has been accepted and before he is sworn to try the cause. People v. Montgomery, 53 Id. 576. It is not error to refuse permission to defendant to interpose a peremptory challenge to a juror after he has been sworn to try the case, no cause being shown. People v. Rodriguez, 10 Id. 50. 2. Order of Challenges.—In People v. Scoggins, 37 Cal. 676, the court said: "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 can not 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 section 341 of the criminal practice act [Sec. 1068]. 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 section 341 [Sec: 1068], 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 permissible, 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. In order to avoid all misconstruction on this important point in 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 |