No. 2,497.

#### THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent, *v.*HENRY WEIL, Appellant.

Jubob. — Competency op. — Where a juror in a criminal proceeding, upon examination as to his qualification to try the case, states that he has formed a fixed decided opinion in regard to the guilt or innocence of the defendant, a subsequent statement by him on cross-examination, that his opinion is not an unqualified one, and that he could try the case and render a verdict according to the evidence, notwithstanding any previously formed opinion, will not remove his disability as a juror.

Idem. — Challenge op. — Where a challenge for cause was erroneously disallowed by the Court, and the juror then peremptorily challenged, if the defendant exhausted the number of peremptory challenges to which he was entitled before the jury was completed, the practical result of the erroneous disallowance of defendant’s challenge for cause was to contract the number of peremptory challenges to which he was entitled, and may have been seriously prejudicial to the defendant.

Appeal from tire County Court of Calevaras County.

Defendant was convicted of tbe crime of “grand larceny.” He moved for a new trial, wbicb was denied, and be appealed from tbe judgment- and from tbe order denying a new trial,

Tbe other- facts are stated in tbe opinion.

*JR. & W. L.*HopJcins, .for Appellant.

It was decided in tbe case of tbe *People*v. *Qatewood,*(20 Cal. 149), and in *People*v. *Gaunt*(23 Id. 157), that tbis Court will not review tbe ruling of a Court below upon a challenge for cause in cases where tbe juror objected to is afterward peremptorily challenged and does not sit on tbe trial, and the defendant has peremptory challenges left after tbe jury is completed. It follows, then, that tbe Court will review alleged error in overruling a challenge for cause though tbe juror is thereafter peremptorily challenged and does not sit in tbe case, provided defendant exhausts bis peremptory challenges prior to tbe completion of tbe jury; because in such a case, tbe error, if any, would necessarily tend to tbe prejudice of tbe defendant-

*269“Unqualified opinion” is defined by tbis Court to be, in the sense of tbe statute, “a decided or fixed opinion.” *(.People*v. *Reynolds,'*16 Cal. 128). Tbe juror must bave reached a conclusion like that upon which be would be willing to act in ordinary matters.

According to tbis definition tbe juror, Biley Senter, bad certainly formed an unqualified opinion, and there was nothing which would justify tbe inference that bis opinion was “hypothetical” or that it was a “mere impression” or a “suspicion or inclination of bis mind toward a conclusion.’ Tbe effect upon bis mind of what be bad beard and believed, and still believed, was more than a “mere impression;” it amounted to a “conviction.” *(People*v. *Reynolds, supra.)*

Tbe fact that tbe juror upon bis cross-examination denied that bis opinion was an unqualified one, amounted to nothing; be simply denied a conclusion of law.

Tbe competency of tbe juror must be determined by tbe Court; be is not rendered competent by bis declaration that be could try tbe case, and render a verdict according to tbe evidence.

*Jo Hamilton,*Attorney-General, for Eespondent.

An answer to tbe objection of appellant to tbe ruling concerning tbe juror Senter, lies in tbe fact that tbe statement does not show that be was prejudiced in any degree thereby. It does not appear that be attempted any more peremptory challenges, or bad any desire to exercise any other than those be did exercise. *(People*v. *Gateioood,*20 Cal. 146.)

Tbis case is not parallel with *People*v. *Gerlce*(8 Cal. 359). Tbe juror bad formed no unqualified opinion.

Unless it appear that tbe decision of tbe Court was erroneous, tbe verdict will not be set aside, for by bis answers tbe Court is to decide as to- tbe competency of tbe juror. *(People*v. *Henderson,*28 Cal. 465.) :

Sprague, *3.,*

delivered tbe opinion of tbe Court:

Tbe first point made by appellant in bis brief is that tbe *270Court erred to Ms prejudice in denying Ms challenge for implied bias of Eiley Senter as a trial juror.

As appears from tbe record, during tbe impaneling of tbe jury for tbe trial of tbe cause, “ one Eiley Senter was called, as a juror, and was sworn upon Ms *voire dire*to answer questions concerning Ms competency, and in answer to sucb questions — upon Ms direct examination- — stated: I bave formed a fixed, decided opinion in regard to tbe guilt or innocence of tbe defendant; my opinion is sucb that I would be willing to act upon it in tbe ordinary affairs of life; I bave reached a conclusion or conviction sucb as I would be willing to act upon in my business transaction’s; I believe what I beard; I beard what purported to be tbe facts of tbe case; I believe what I beard now; it will require evidence to remove tbe opinion now existing in my mind.”

On cross-examination be said: “My opinion is not an unqualified one; I could try tbe case and render a verdict according to tbe evidence, notwithstanding any opinions previously formed by me in regard to tbe case.” Thereupon defendant’s counsel challenged said juror for implied bias, assigning as tbe ground of challenge that tbe said juror bad formed an unqualified opinion as to tbe guilt or innocence of tbe defendant. Tbe counsel for tbe people then and there denied tbe said challenge, and tbe challenge was then and there denied and overruled by tbe Court, to which ruling defendant’s counsel then and there duly excepted. And thereupon tbe said juror, Eiley Senter, was peremptorily challenged by defendant’s counsel. Other jurors in attendance were then called, sworn to answer questions as to their competency, and examined in regard thereto, and before tbe jury before whom tbe cause was tried was completed, and before tbe last juror was called to tbe jury-box, tbe defendant bad exhausted tbe whole number of peremptory challenges allowred to him by law.

Before a jury thus formed tbe defendant was «tried and *271convicted. Tbe ruling of tbe Court, in disallowing tbe defendant’s challenge of tbe proposed juror after bis answers to questions, as above recited, in my judgment, was clearly erroneous. Tbe statement of tbe juror, on bis examination in chief, clearly shows that be bad formed an unqualified opinion and belief as to tbe guilt or innocence of defendant, notwithstanding bis subsequent statement on cross- examination.

It appears, from tbe above recital of facts from tbe record, that defendant was driven to a peremptory challenge to relieve himself of this, to him, obnoxious juror, and thus contribute to swell tbe number of peremptory challenges exercised by him, to tbe full extent allowed by law, before tbe panel was full; and before tbe last man required to complete tbe jury was called to tbe box for examination as to qualifications, so that defendant could not exercise a peremptory challenge upon this last juror, however obnoxious be may have been.

Thus, it plainly appears, that tbe practical result of tbe disallowance by tbe Court of defendant’s challenge for cause of Pi/iley Senter, was to contract tbe number of peremptory challenges to which be was entitled, and that such an error may have been seriously prejudicial to defendant.

With these views, it is deemed unnecessary to consider tbe second point urged by appellant, as tbe irregularity is not likely to be repeated in this case on re-trial.

Judgment reversed and cause remanded.