The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-08-13

based would not be a ground of challenge "for
cause"
Whether the language of section 341 of the
criminal practice act as it existed prior TO the
codes and upon which the decision People VS..
Reynolds, Is CAL 131, is based, is of more re-
strictive and of more binding force and effect
than section 106S, Penal Code. have not the
time now to discuss or illustrate, for the reason
that think the strict construction claimed to
have been given in that case TO the section in the
criminal practice act has been materially mod
fled il not overruled IN the late case OF People
VS.. Montgomery, 53 CAL, SIC, III which the
court says:
'sUnder section 1908 of the Penal Code, the
court. in the exercise of a sound discretion,
may permit peremptory challenge, even after
the jury are sworn, and, fortiori, it may per-
NIT it before the jury is sworn, even though
the Juror is accepted, and 1t VIII not De pre-
sumed the court abused its discretion.
And when the Penal Code provides that
either OF these challenges may be allowed for
cause it does not contemplate that the right to
exercise peremptory challenge snail be
founded on one of the grounds of challenge
for cause, but it means that the right OF per
emptory challenge may be exercised for mat
tiers which would not be grounds OF challenge
for "cause."
Now, the object of the law is that jurors who
are to determine the most vital ques lions
should have the entire confidence of all the
parties to the litigation we'll as the faith
and confidence of the public at large-jurors
in whom, after the cause is determined, the
parties and the public can say, that whatever
their own ideas may be, they believe that the
result arrived at was honest and conscientious.
Jurors should be of such character that there
can be no lurking suspicion that they will not
well and truly live up TO and act upon the tes-
timony and the law-and that only-in arriv-
ing at Just conclusion. Such are he Jurors
the law contemplates, and only such are the
jurors that should sit on trials in our courts.
In this case it appears that the District
Attorney states in open court that since ae-
cepting the juror Brown he has learned GER
] toiD or Wh haH ha rorin IN
accepting him, he would have exercised the
legal right accorded him of peremptorily chal-
longing the juror This statement has been
made in open court in the presence and hear
ing of the juror. So far as the testimony given
on this hearing is concerned there is no evil
dence before me upon which any charge of
wrong or bad faith on the part of Mr.. Brown
as a juror in the Howells case can be based,
nor is there any evidence before me that i'm
peaches his honesty or fairness in his action in
that case.
Yet the fact remains that the District Attor-
ney, in calling the attention of the court to
this matter, and urging his right to exercise
the peremptory challenge, has placed himself
in such position as may have aroused the ami
cause he represents. Suppose it should
appear that from some imaginary cause
juror who was accepted and sworn,
but before the jury was completed, had de-
nounced either one of the counsel in the case.
thereby showing great personal hostility
against said counsel, and which might have a
tendency to impair the usefulness of said coun-
sci in the trial OF the case-and supposing that
the fact of such prejudice against said counsel
came to his knowledge after the juror had been
sworn-would any court If such state of
facts existed and was brought to its attention
by motion to allow such counsel to exercise
peremptory challenge, refuse to grant the
same? / think not.
Now such a state of mind may exist on the
part OF the juror in this case against the coun-
sci for the people; don't say it does, but it is
not outside OF the range of possibility that it
might, and certainly such juror should not
be allowed to act in the case.
Besides. we must consider that party upon
trial is not entitled-as was well said in People
VS.. Murphy, As CAL 143-of right to any par
ticular juror. He is only entitled to fair and
impartial jurors and to a competent jury; and
when such competent jury is impaneled and
sworn in the case, the purpose of the law in
that respect has been accom- plished.
Though in the impaneling of the jury any
competent person may be rejected, yet if an
other competent person has been substituted
in his stead no injury has been done to the
prisoner.
Upon the whole matter as now before me,
after such thought as / have been able to give
the subject, have determined to allow the
motion of the District Attorney and to permit
him at this tine TO exercise peremptory chal-
lenge to the juror, Brown,
1--WE take an exception" said General
Dickinson.
81 DESIRE" said the District Attorney
rising from his seat without delay, ito in
terpose peremptory challenge to Walter
s. Brown"
1.-THE peremptory challenge of the Dis
trict Attorney has been entered said the
court "You are excused, Mr.. Brown"
And the Juror reached for his hat.
stepped down and out of the box and left
the courtroom without delay. Judge
Murphy began again.
= Now, there is another matter desire to dis
pose of before proceeding with the business be-
fore the court That is on the application of
the counsel for the defendant for the issuance
by the court for certain citations to parties
connected with certain papers, in which it is