No. 2,690.

#### THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent, *v.*JOSE B. COYODO, Appellant.

Criminal Law. — Practice.—-Challenge.—A challenge may he made to the panel, on account of any bias of the officer summoning them, which would be good ground of challenge to a juror.

Idem. — Panel.—Definition of. — The word “panel” includes within its definition the jurors returned upon a special venire to fill out the-deficiency, after the regular “panel” has been exhausted.

Idem. — Verdict.—Instructions.—Evidence.—A verdict of guilty rendered by a jury under an instruction of the Court, to the effect, “that they must acquit the defendant, unless they find that the deceased was killed by Paul Tibeaux, while the defendant aided and abetted the killing,” and the evidence was that the fatal shot was fired by a Prenchman named Paul, without proving that Paul was the same person known as Paul Tibeaux, is contrary to the instruction of the Court, and therefore erroneous.

Appeal from tb© Eleventh District Court, County of Cal-averas.

The facts are sufficiently stated in the opinion.

*Walter L. HopMns,*for Appellant.

*First*— The Court erred in overruling defendant’s challenge to the panel and list-of jurors appearing pursuant to the special venire.

When the panel is formed from persons whose names are not drawn from the grand jury bos, a challenge may be made to the panel on account of *any bias*of the officer who summoned the jury which *would be good grounds of challenge to a juror.*(Orim. Pr. Act Sec. 337.)

*587Section 346 Crim. Pr. Act, lays clown tbe distinction between “actual” and “implied” bias, and tbe succeeding Section (347) makes having formed or expressed an unqualified belief or opinion tbat tbe prisoner is guilty or not guilty of tbe offence charged, *good ground of challenge to a juror for implied bias;*and, consequently, under Section 337 it is “good ground” of challenge to tbe panel formed as therein mentioned.

Tbe answers of tbe Sheriff showed tbat be bad expressed an unqualified opinion. *{People*y. *Williams,*6 Cal. 206.) Also, tbat be bad formed an unqualified opinion. *{People*y. *Weil,*Oct. Term, 1870.) Under either of tbe cases above cited, if a juror, examined as to bis competency, bad made tbe same answers as tbe Sheriff did, and defendant bad challenged him for implied bias, tbe challenge would have been sustained.

Should tbe objection be raised here tbat tbe jurors appearing pursuant to tbe special venire, did not constitute a panel, I answer, *“thq panel is a list of jurors returned by the Sheriff,”*to serve at a particular court, or for the trial of a *particular cause.*(Crim. Pr. Act, Sec. 328.)

Besides tbe wording of Section 337, is, “where tbe panel is formed from persons, etc.” Now tbe panel cannot certainly be formed until every act *necessary to complete*tbe forma* tion of it has been done, and if tbe issuance of tbe special venire was an act necessary to complete tbe panel, tbe panel evidently-was not formed until tbe jurors summoned thereunder bad appeared. Of course defendant does not claim tbat bis challenge to tbe panel, under tbe circumstances, could have any effect upon tbe ten iurors sworn to try tbe cause.

*Second*— In tbe First Count of tbe Indictment it is alleged tbat “ *Paul Pibeaux** * * did kill and murder one Elkanab Said, and tbe means, etc., by which tbe killing was accomplished are stated with due particularity. It is further alleged in tbe same-Count, “Baptiste Dueny, Andreas Molino and *Jose B. Ooyodo,** * * stood by, aiding and abetting * *him,*tbe *said Paid Pibeaux, in the felony and mu/rder aforesaid,*in *manner*and form aforesaid to do and commit.”

*588In'the Second Count of tbe Indictment it is alleged generally, “that * * Paul Tibeaux, Baptiste Deuny, Andreas Molino and Jose B. Coyodo * * did kill and murder El-kanah Said.”

Tbe evidence proved tbat a Prencbman named “Paula” or “Paul” fired tbe fatal shot wbicb killed Mr. Said, and tbat tbe defendant Jose B. Coyodo stood by aiding and abetting, etc., and there was no evidence tending to prove tbat Paul Tibeaux, tbe principal named in tbe indictment, was in any manner concerned in tbe commission of tbe of-fence therein charged, and there was no evidence tending to prove tbat tbe defendant Jose B. Coyodo, was in any manner concerned or implicated in tbe-killing of Mri Said, except as an accessory before tbe fact.

Defendant’s counsel moved tbe Court to quash tbe indictment and discharge defendant because of tbe variance between tbe allegations and tbe proofs; motion was overruled; defendant’s counsel excepting, and refusing to introduce any evidence in behalf of defendant.

Tbe Court instructed tbe jury tbat they must acquit-defendant, unless they find tbat tbe deceased was killed by Paul Tibeaux, while tbe defendant aided and .abetted tbe killing.

" Defendant was convicted, and moved for a new trial on tbe grounds of variance between tbe allegations and tbe proofs. Motion was overruled. Defendant excepting: *First*— Tbe Court erred in overruling motion to quash indictment and discharge tbe defendant. *Second*— Court erred in refusing to grant defendant a new trial, for tbe verdict was contrary to tbe law as laid down in tbe instructions of tbe Court, and tbe verdict was contrary to tbe evidence, for tbe guilt of tbe defendant, as charged, was not proved.

Tbe connection cannot be sustained under tbe last count of tbe indictment, for therein tbe defendant is’ charged as a principal, and there is no evidence implicating tbe defendant as a principal in any crime whatever. *(People*v. *Trim,*39 Cal. 75; *People v. Campbell,*Oct. Term, 1870.)

*589We contend that under tbe first count of tbe indictment tbe name of tbe alleged principal, Paul Tibeaux, should have been proved as alleged, and tbe failure so to prove it constituted a material variance between tbe allegations and proofs.

Defendant was chargeable only as an accessory before tbe fact, and it was necessary to indict him as such. *{People*v. *Campbell, supra.)*And in indicting him as such, it was necessary to allege tbe name of some principal, known or unknown — (for bow can there be an accessory unless there is a principal?); and tbe name of tbe principal being necessarily alleged, it ought to have been proved as alleged.

If tbe indictment states tbe name of tbe principal to be unknown contrary to tbe truth, tbe defendant is entitled to an acquittal. (1 Wbartin Criminal Law, Sec. 251.) And surely when tbe indictment states tbe name of a known principal, the people must prove tbe name alleged.

Again “ no allegation descriptive of that which is charged can ever berejected.” (1 Greenleaf’s Evidence, Sec. 56, notel.) The name Paul Tibeaux is descriptive of defendant’s of-fence. His offence was not tbe killing of Said, but tbe standing by, aiding and abetting, etc. Aiding and abetting whom ? Paul Tibeaux, tbe principal named in tbe indictment.

Again, strike out tbe word Paul Tibeaux from tbe indict, ment, and tbe sense and meaning of tbe whole instrument is destroyed, and tbe rule is that whatever can not be stricken out without getting rid of a part essential to tbe cause of action must be retained, and of course must be proved, though it be described with unnecessary particularity. (Greenleaf, 1 vol. Secs. 68-65.)

Again, any variance in sound in tbe names of material third parties is fatal at common law. (1 Wharton Crim. Law, Sec. 259, Subdivision 4, and Sec. 595 and 596.)

But it was suggested by tbe people’s counsel in tbe Court below, that tbe Common Law does not govern this -case, but tbe Statute does. What Statute? Section 253 Crim. Pr. Act only covers tbe case of an “erroneous allegation as to tbe person injured or tbe person intended to be injured;” and *590even if that section was applicable to this case, it surely could not be contended with any show' of reason that the defendant could be convicted" of the murder of a man named Paula or Paul under an indictment charging him with the murder of Paul Tibeaux.

When substantial error is once shown, the law presumes that it was to the prejudice of the defendant, and the record in the present case affirmatively sustains this presumption of the law, for the conduct of the defendant, in refusing to put in any evidence in rebuttal of the offence proved, can only be explained by the fact that the offence proved was not the offence alleged.

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

*Mrst*— The challenge in this case was not addressed to the panel, but it was addressed simply to the talesman who was summoned to fill up and complete the jury, the number of which is provided by the statute, and is not such a challenge as is contemplated by the statute, on which appellant relies.

The statute provides the manner and mode by which the panel which tries a case shall be summoned, and in the event a jury is incomplete after the panel is exhausted — how it shall be complete (Art. 3,887, Sec. 18, 1 Hittell, page 564.) Section 337, Grim. Pr. Act, provides for a challenge to the panel from which the jury is formed, the challenge goes no further. Section 18, *supra,*makes and recognizes a difference between the regular panel and such special talesman summoned to complete a jury, calling the latter special trial jurors, and seeming to guard by special care against the objections urged by the appellant, provides that the persons thus summoned shall be as competent, in all respects, as if drawn and summoned before the commencement of the term. (Also, Section 21, of same Act.)

The special jury law as. fixed by the Act approved April 23d, 1863, and subsequently amended by the Act approved April 4th, 1864, Stat. 1863-4, page 450, being special in its character nullifies and repeals so much of Section 337 of *591tbe Criminal Practice Act as is relied upon by appellant if it were ever in point.

Under tbe Act known as tbe Criminal Practice Act, passed in 1851, tbe Sheriff bimself or bis deputies selected tbe grand and trial jurors. Prejudice on tbe part of tbe summoning officer might very readily endanger a criminal defendant; but, under tbe Act of 1863, tbe Sheriff is simply a ministerial officer of tbe Court, whose duty it is to bring into tbe Court tbe persons whose names have been drawn as provided by law.

But I further respectfully submit that tbe challenge referred to in Section 337, relied on by appellant’s attorney, relates not only not to special jurors, but does not refer to trial jurors at all, but applies alone to grand jurors. (Crim. Pr. Act, Secs. 321, 159, 180-190).

*Second*— Appellant’s second point does not sustain tbe plea of variance between tbe indictment and proof; tbe only question is, was tbe proof full enough?

I think it sufficient on this point to reply that it is not Tibeaux on trial, but tbe defendant “Coyodo.” If, on tbe trial under tbe second count in tbe indictment, any of tbe defendants did tbe killing, and tbe defendant aided and abetted or assisted therein, then tbe crime is made out.

It would also be sufficient under tbe first count. (1 Cbitty Criminal Law, 260, and authorities in note “A” thereto.) "Where several defendants are jointly indicted, and sever on trial, I do not understand that on tbe trial of one tbe guilt of all must be proven.

Tbe indictment and proof under the second count are good under tbe authority of tbe *People*v. *Gronise,*(34 Cal. 210;) Crim. Law Pr. Act, (Sec. 253); *People*v. *Goyodo,*(6 Cal. 23;) *People*v. *Beurs,*(10'Cal. 68.)

The defendant being associated in a common and unlawful cause (robbery), any act done by one in furtherance of tbe common cause was alike done by all.

*592Temple J.,

delivered tbe opinion of tbe Court, Rhodes, C. J., Wallaoe J., and Crockett J., concurring:

Tbe defendant was convicted of tbe crime of murder in tbe first degree. At tbe trial, from tbe regular panel, ten jurors were selected and sworn — tbe regular panel being then exhausted. By tbis time tbe defendant bad exhausted all bis peremptory challenges. A special venire for six additional jurors having been issued, was served by tbe Sheriff, and tbe jurors summoned appeared in Court. Tbe defendant then interposed a challenge to tbe panel returned on tbe special venire, on tbe ground that tbe Sheriff bad formed and expressed an unqualified opinion that tbe defendant was guilty. Tbe challenge was denied,' and on tbe trial of it tbe Sheriff was sworn, and from bis evidence it appears plainly enough that be bad formed and expressed such an opinion as would have disqualified him from serving as a juror in tbe case. Section 337, of tbe Criminal Practice Act, provides that a challenge may be made to tbe panel on account of any bias of tbe officer summoning them, which would be good ground of challenge to a juror; and we think tbe ruling of tbe Court in denying tbe challenge clearly erroneous.

We find nothing in tbe Act Concerning Jurors, passed April 27, 1863, (Stats. 1863, p. 630), inconsistent with tbe provisions of tbe Criminal Practice Act. It expressly enacts that either party may have tbe number of tbe peremptory challenges, and tbe challenges for cause now provided by law; and it makes no provisions for tbe manner in which tbe challenges shall be interposed. Tbis is left for tbe Criminal Practice Act, and we think clearly implies that its provisions upon tbe subject are still to continue in force.

We think tbe word “panel” includes within its definition tbe jurors returned upon a special venire to fill out tbe deficiency after tbe regular panel has been exhausted. Section 337 of tbe Criminal Practice Act was intended to -apply to just such a case as that presented in tbis record.

*593The indictment, in tbe first count, charges tbe homicide to have been committed by one Paul Tibeaux, and that the defendant aided and abetted. The second count charged that the defendant and others did kill and murder Elkanah Said. The Court instructed the jury that they must acquit the defendant unless they find that the deceased was killed by Paul Tibeaux, while the defendant aided and abetted the killing. The evidence was that the fatal shot was fired by a Frenchman by the name of Paul, and there was no evidence to show that Paul Tibeaux had anything to do with the homicide. The failure to prove that Paul was the same person known as Paul Tibeaux was probably a mere oversight, but the total absence of proof upon that point is fatal to the verdict. It would be contrary to the instruction of the Court, and, therefore, erroneous.

Judgment reversed and new trial ordered.