The San Francisco call., 1897-03-04


Young, los Cal, u To hold mandatory the
provisions OF section 2o5 OF the Code OF civil
Procedure, and thus to require OF the Judges
the strictest compliance wlth the law IN the
matter of the selection OF jurors, would De 10
the last degree unreasonable. They would
then be Obliged 10 lay aside all other business
and devote their time for days, and perhaps
weeks, 10 personal inquiry, inspection and
examination of 5000 men (the number OF
jurors called for), and after this labor TO de-
eide at the Ieril of q re- election OF the whole
panel thai 10 the final name upon the list
each mau possessed all the qualifications OF
juror. The provisions OF the section are d.
reetory, and substantial compliance Win
them is here shown and is all that may be de-
manded.
Regarding Trial Jurors
Section 204 OF the Code OF Civil Procedure
provides that in counties and cities and coun-
ties of more than 100000 inhabitants the
Judges of the Superior Court shall select and
return trial jurors. Though the section was
amended in 1881 and again i'll 1893 the pro-
visions relative 10 cities and counties OF over
100, 900 inhabitants remain unchanged so far
as affects this consideration Before the pres
ent constitution went into operation the
jurors were selected by the District Judges OF
the several judicial districts within the City
and County of San Francisco, the County
Judge, the Probate Judge and the Judge of the
Municipal Criminal Court The anne ndments
TO the section made alter the adoption OF the
present constitulio were designed TO meet
the new judicial system provided for by that
instrument. This section was u part of the
stitution, and by that instrument (article
XIII, section III all laws relative to the judi
eial system tnen IN force were made applica-
BILE TO the new system provided by the conSIi-
tuition. Section 204 of the Code of Civil Pro-
cedure not unconstitutional under our
earlier organic law, and did not become un-
constitutional by force of the present one. To
the contrary, the section was expressly re-
tanned in force.
The court summoned jurors by special ve
nlre. To the panel thus formed defendant OBJ
gles s.,,
section 1864 OF the Penal Code, but upon The
ground that the regular jury list had not been
exhausted. This is not ground for challenge
&C. G. p, sections 226-227; Levy VS.. Wilson, 90
Cal, III; Peop.e vs. Vincent, 95 Cal, 425).
The court may summon jurors by special ve-
nire without exhausting all Of the names upon
the regular list.
DisaIIowed Challenges.
To the jurors Crocker and Nathan chal-
lenges were interposed for actual bias, under
subdivision OF section 1913 of the Penal
code. The challenges were dlsallowed.
Whether or not the jurors Croeker and Nathan,
or either OF them, we're shown 10 be disquali-
fed by actual bias against the defendant, and
therefore whether or not the trial court erred
il disRllowing the challenges interposed to
them, Is not under the facts presented by the
record a subject for consideration by this
court The challenges Tor cause having been
disailowed, the defendant d id not see fiji 10 ex-
erclse his right of perenpt0ry challenge upon
either OF the jurors, but accepted them both.
had in reserve and unemployed eight of his
twenty peremptory challenges 1t has in this
State been held in numerous instances that,
even II the Judge errs in disallowing chal-
lenge for cause, and the defendant thereafter
excuses the obnoxious juror under a peremp-
tory challenge, and the jury is completed
without the exhaustion by the defense of all
of its peremptory challenges the error of the
court Will not be reviewed upon appeal, be-
cause no injury could have resulted 10 the de-
fendant. people vs.. Gatewood, 20 Cal, 146:
People VS.. Gsunt, 23 Cal, 1856; People VS.. Weil,
30 Cal, 25S; People VS.. MeGungill, Al Cal,
4299
Tne situation here presented differs some
what from that presented by the cases last
above cited, but the reasoning which gov
erned the decisions in those cases is strictly
applicable to the one at bar. The defendant
may not have reviewed error which he has
invited or has failed To avoid by the legal
means at his command. II the defendant
feared TO put himself on trial before the jurors
whom he had challenged, 1t was his duty TO
avail himself of the liberal aid which theaaw
affords him and TO have excused them from
the box If in so dong he lessened the num-
Der OF his peremptory challenges TO such an
extent that II appears that they were ex-
hausted before the completion of the jury, he
may we'll be heard to urge in argument hat
by reason of the erroneous ruling the number
OF his perem ptory challenges was improperly
curtailed and he was deprived of legal right;
but when It is show as here, that The two
jurors in question were accepted and allowed
10 remain, when the defense could have exer-
.clsed peremptcry challenges upon them, and
further, thai at the time when the Jury was
completed there was-stiu held in reserve by
fhe defense neatly half of its peremptory cha-
4enses-n under these circums tences error
was committed by the trial court, il was either
acqulesced in by the defense or permitted by
its failure TO exercise its legal right, and the
ruling Will not be reviewed.
The Rule Overwhelming.
There will be found in the cases some slight
diversity of opinion upon the question, but
the great weight of authority is in support of
the view above expressed. Thompson on
Trials, Sectien 100 thus declares the princi-
pie: at is a rule of paramount importance
that errors committed IL overruliug Challenges
for cause are not grounds for reversal, un-
less il be shown an Objectionable juror was
forced upon the challenging party after he
had eXhauStef his peremptory challenges; ii
his peremptory challenges remain unex-
hausted, so that he might have exc uded the
objectiona bic juror by that means, he has no
ground of complaint" The rule above stated
finds overwhelming support from the authori-
ties, of which few may be cited: State VS..
Gooch. "a \. C.. 9S7; Williams VS., the State,
80 Tex. App, 354; State VS.. lie Duff, 46 La
An, 546; State vs. Yetzer Qa.), 66 n. W. Rep,
7S7; State VS. Hartley (Nev.) 40 Pac Rep.
372; People VS.. Aplin, S6 Mich, 1893; Brum.
back vs.. German National Bank, 46 Neo, $40;
Prewitt We. Lambert, 10 Colo, z; Spies VS.. The
People, 122 ILL.,, 1.
Nine jurors had been sworn to try the case
At this stare OF the proceedings the District
Attorney asked and obtained permission OF
the court 10 reopen the examination of one
OF these Brown, and TO question him upon
matters which had come 10 his knowledge
since his acceptance as a juror, Permission
was granted over objection and exception of
defendant AT the conclusion of the examina-
tion the District Attorney asked leave TO in
terpose peremptory challenge to the juror.
Leave was given, aud this ruling was assigned
as error. Section 106S of the Penal Code pro-
vfdes that a challenge feither perem ptory or
Tor causel must be taken when the juror ap-
pears, and before he is sworn to try the cause,
but the court may for cause permit it 10 be
taken after the juror is sworn, and before the
jury is completed. 1t was not error, there
lore, for the court to permit a re-examination
Oh the juror upon matters coming TO the
knowledge of the people or defendant after
his acceptance, and before the completion of
the jury. The course here pursued was that
followed in People VS.. Bemmerley, 81 Cal
H. and approved by this court
Brown and the Howell Case.
The uew matter upon which the juror Brown
was questioned touched his connection with
the case of one Howell, who had been tried in q
Federal court for passing coun terfeit money.
Brown had been juror in the case, and with
others had voted for Howel.'s aequittal The
result was disagreement OF the jury and
mistrisl. Rumors that the Howell jury had
been approached and corrupted were current
and the next Federal Grand Jury Instituted an
inves tigation. Brown was summoned before
il and interrogated as 10 his knowledge OF the
matter, but in justice II should be added that
the record before US does not disclose that his
own integrity was under assault
There was undoubtedly not enough in this
to warrant the inter poSi ton OF a challenge for
cause, but section 1868 OF the Penal Code con-
templates also the taking of a peremptory
challenge, as one does IN this case. When the
code says that the court may for cause permit
the challenge to be taken it means as the
language has been interpreted that it is not
matter OF right to either party, but may be
permitted in the exercise OF Il sound discretion
people VS.. Reynolds, is Cal, 12S; People VS..
Montgomery, 53 Cal, 076: People vs.. Benz