NOTE.-One of these grounds must be specified in a Subd. 1.-3 Blackst. Com., p. 363; 3 Whart. Am. Cr. Subd. 2.-Liv. Crim. Code, p. 529, Art. 330, Subd. 2; Subd. 4.-Id. et id. Subd. 5.-Liv. Crim. Code, p. 529, Art. 330, Subd. 4. Subd. 7.-Id. et id. Subd. 8.-People vs. Cottle, 6 Cal., p. 227; People vs. Subd. 9.-People vs. Turner, 2 Cal., p. 257; People 1075. (§ 348.) An exemption from service on a jury is not a cause of challenge, but the privilege of NOTE.-The following sections of The Code of Civil Procedure are applicable to qualifications and exemptions of jurors in criminal cases as well: Sec. 198. A person is competent to act as a juror if he be: 1. A citizen of the United States, an elector of the county, and a resident of the township at least three months before being selected and returned; 2. In possession of his natural faculties and not decrepit; 3. Possessed of sufficient knowledge of the language in which the proceedings of the Courts are had; 4. Assessed on the last assessment roll of his county on property belonging to him. NOTE.-Under this subdivision the juror must be assessed for real or personal property, or both, on the assessment roll.-People vs. Thompson, 34 Cal., p. 671. Sec. 199. A person is not competent to act as a juror: 1. Who does not possess the qualifications prescribed by the preceding section; 2. Who has been convicted of a felony or misdemeanor, involving moral turpitude. NOTE.-Gamblers were formerly expressly disqualified, but are not now, under this Code. Sec. 200. A person is exempt from liability to act as a juror if he be: 1. A judicial, civil, or military officer of the United States or of the State of California; 2. A person holding a county office; 3. An attorney and counselor at law; 4. A minister of the gospel, or a priest of any denomination; 5. A teacher in a college, academy, or school; 6. A practicing physician; 7. An officer, keeper, or attendant of an almshouse, hospital, asylum, or other charitable institution; 8. Engaged in the performance of duty as officer or attendant of a County Jail, or the State Prison; 9. Employed on board of a vessel navigating the waters of this State; 10. An express agent, mail carrier, telegraph operator, or keeper of a public ferry or toll gate; 11. An active member of the Fire Department of any city, town, or village in this State, or an exempt member by reason of five years' active service; 12. A superintendent, engineer, or conductor on a railroad. Sec. 201. A juror cannot be excused by the Court for slight or trivial cause, or for hardship, or inconve nience to his business, but only when material injury or destruction to his property, or that of the public entrusted to him, is threatened, or when his own health 1076. (§ 349.) In a challenge for implied bias, one or more of the causes stated in Section 1074 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of Section 1073 must be alleged. In either case the challenge may be oral, but must be entered on the minutes of the Court or of the Phonographic Reporter. NOTE.-A challenge for cause must be interposed immediately after the examination of the juror on the part of the defendant, and before the other side takes the juror, otherwise it comes too late.-People vs. Stonecifer, 6 Cal., p. 405; People vs. Gatewood, 20 Cal., p. 146. An expression of an unqualified opinion good ground of challenge.-People vs. Cottle, 6 Cal., p. 227; People vs. Gehr, 8 Cal., p. 259. The intention is to restrict the principal challenge, or, as it is termed in this Code by Sec. 1074, a challenge for "implied bias," to the cases mentioned in Sec. 1074, ante, in which, when the fact is established, the partiality of the juror is manifest; and to confine within the challenge to the favor, or, as it is here termed, actual bias, an objection to the juror proceeding upon the formation or expression of an opinion, or any other ground showing him to be not impartial. And as another object, to define the kind of bias which will justify the triers in excluding the juror to be the existence of a state of mind on the part of the juror in reference to the case or to either party which satisfies the triers, in exercise of a sound discretion, that he cannot try the issue impartially, and without prejudice to the substantial rights of the party challenging. To carry out these views and objects, Sec. 1084, ante, was originally adopted in 1851, in this State, and for similar reasons was reported by the Code Commission of New York in 1849. The Legislature of 1867-8 (see session Acts, p. 704,) again, the more clearly to express this intention, amended the original Sec. 357 (now Sec. 1084), so as to read as here given in the text, and incorporated the same language with regard to a hypothetical opinion into original Section 346-Code Sec. 1073, ante. These Secs. 1073 and 1084, as originally adopted, were declaratory of the rule laid down in The People vs. Bodine, 1 Denio, pp. 307, 308, that "a fixed and Exceptions absolute opinion may be necessary to sustain a challenge for principal cause ('implied bias'), but not so when the challenge is for favor (‘actual bias'). In the first species of challenge the result is the conclusion of law upon ascertained facts, but in the latter the conclusion is a matter of fact to be found by the triers. No certain rule can be laid down for their guidance.” "They are sworn to try whether the juror challenged stands indifferent (Gia. Prac., second ed., p. 307; Bac. Abr. Juries, E., 12, notes; 1 Trials Per Pais, p. 205; Anonymous, 1 Salk., p. 152, pl. 1), and this must be determined upon their conscience and discretion, in view of the facts and circumstances in evidence before them." In order to find a juror competent and qualified, the triers must be satisfied, from a careful examination, that he will act with entire impartiality. ́ "They have the right to examine him fully and carefully, and they should exercise this right with freedom." "No invariable rules are prescribed as tests of this character" (" of impartiality "). "The triers must judge by what they can, in the exercise of their office, discover of the qualities, state of mind, motives, and relations of the particular juror, and from this knowledge their decision must be formed;" and from it there is no appeal.-People vs. Reynolds, 16 Cal., p. 137. 1077. (§ 350.) The adverse party may except to ($ lenge, and the challenge in the same manner as to a challenge to to chal denial thereof. Challenge, how tried. the panel, and the same proceedings must be had thereon as are prescribed in Section 1061, except that if the exception be allowed the juror must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge. NOTE.-See Secs. 1073, 1068, 1076, ante, and notes. 1078. (§ 351.) If the facts are denied, the challenge must be tried as follows: 1. If it be for implied bias, by the Court. NOTE.-Subd. 1.-Competency of a juror is not determined by himself, but by the Court from his trial.People vs. Woods, 29 Cal., p. 635. Residing and thereby acquiring a residence, it is not lost by temporary absence. If it is continued on return he is a competent juror.-People vs. Stonecifer, 6 Cal., p. 405. To be able to sit on a jury without bias-that any opinion he has can be changed by evidence, and a willingness to be governed by the evidence-constitute a good juror, if qualified in other respects.-People vs. McCauley, 1 Cal., p. 379. The mere hearing of or reading about a case, and even of a statement of the facts, does not disqualify a person, but it is the formation of a conclusion.-People vs. Reynolds, 16 Cal., p. 128. If a person called as a juror has said, "The people ought to take the prisoner out of jail and hang him,” it would be error to allow him to sit on the jury, and the Court would grant a new trial.-People vs. Plummer, 9 Cal., p. 298; but see People vs. Fair, January Term, 1872. Being a policeman, and having a general bad opinion of people charged with crime, is no valid objection to a person otherwise competent to sit on a jury.— . People vs. Reynolds, 16 Cal., p. 128. If a disqualifed juror is once accepted, the objection cannot be interposed by one who knew the disqualification and did not urge it at the proper time.-People vs. Stonecifer, supra, 6 Cal., p. 405. As challenge for implied bias, counsel must allege one or more of the causes so specified.—People vs. Haidin, 37 Cal., p. 259; People vs. Reynolds, 16 Cal., p. 130. Hearing the purported facts rumored, but conversing with none of the witnesses, and from this forming an opinion, is not a disqualification.-People vs. Williams, 17 Cal., p. 142. General impressions of defendant being a bad man, from reading papers, etc., not a disqualification.-People vs. Mahoney, 18 Cal., p. 180. Fixed conclusions do, but impressions do not, disqualify.-People vs. Symonds, 24 Cal., p. 17. And these conclusions must amount to settled convictions, or they must have been expressed to disqualify a juror.-People vs. King; see facts to be found by triers, note to Sec. 1076, ante, and People vs. Bodine, there cited. Notwithstanding the views expressed in this case, furnishing a guide to the discretion of the triers upon a challenge to the favor "actual bias," no rule which can be safely enforced has been established in respect to the degree of opinion necessary to sustain a principal challenge for implied bias." The rule remains that the formation or expression of an opinion sustains the challenge for implied bias, and in its practical application Courts have not felt themselves safe in going beyond that simple inquiry. It ought to be borne in mind that it would be a simple absurdity, after the Court has determined the question of implied bias, and overruled the challenge, to interpose a challenge for actual bias, and ask the triers 66 |