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Triers, how appointed..

Majority may decide

Oath of triers.

1294

Juror challenged may be examined

to override the finding of the Court by a different finding on the same facts, which is sometimes resorted to. If, however, other evidence can be produced under the latter challenge, it ought to be interposed. See Sec. 1074, ante, for specification of grounds, and note.

Subd. 2.—A challenge for "actual bias" must state against whom, and if against defendant, it must be so stated to avail him.-People vs. Dick, 37 Cal., p. 279. Both for the people and the defendant the law favors a jury without bias or any kind of prejudice, and how the triers are to determine a question of actual bias, see People vs. Ryan, 5 Cal., p. 347. How the judgment and discretion of triers are to be exercised, with what care and what they may consider in determining the fact, see People vs. Reynolds, 16 Cal., p. 128. The preceding note to Subdivision 1 furnishes much to guide the conduct of triers. See, also, note to Sec. 1076, ante.

1079. (§ 352.) The triers are three impartial per sons, not on the jury panel, appointed by the Court. All challenges for actual bias must be tried by three triers thus appointed, a majority of whom may decide. NOTE. See note to preceding section.

1080. (§ 353.) The triers must be sworn generally to inquire whether or not the several persons who may be challenged are biased against the challenging party, and to decide the same truly, according to the evidence.

NOTE.-See note to Sec. 1076, ante, et seq.

1081. (§ 354.) Upon the trial of a challenge to an individual juror, the juror challenged may be exas a witness amined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry.

Rules of

evidence on trial of

challenge.

1082.

NOTE.-See note to Sec. 1076, ante, and People vs. Reynolds, 16 Cal., p. 136. Triers have a right to examine the juror fully and carefully.

(§ 355.) Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge.

1083. (§ 356.) On the trial of a challenge for implied bias, the Court must determine the law and the fact, and must either allow or disallow the challenge, and direct an entry accordingly upon the minutes.

NOTE.-See note to Sec. 1076, ante, and People vs.
Bodine, there cited.

Challenge
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for actual
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1084. ($357.) On the trial of a challenge for Instrucactual bias, when the evidence is concluded the Court triers on must instruct the triers that it is their duty to find the challeng challenge true, if, in their opinion, the evidence warrants the conclusion that the juror has such a bias against the party challenging him as to render him not impartial; and that if, from the evidence, they believe him free from such bias, they must find the challenge not true; that a hypothetical opinion, unaccompanied with malice or ill will, founded on hearsay or information supposed to be true, is of itself no evidence of bias sufficient to disqualify the juror. The Court can give no other instruction.

NOTE.-See notes to Secs. 1074-1076, ante. Actual bias is that cause stated in the second subd. of Sec. 1073, ante, and referred to in Sec. 1076, ante. The difference between the two forms of challenge for implied and actual bias is that the former is based upon the allegation of a fact which carries with it evident marks either of malice or favor, and is sufficient of itself to exclude the juror, without leaving anything to the discretion of the triers or of the Court; while the latter, though of the same nature, is of inferior degree, and is to be resorted to only when, though the juror is not so palpably partial as to give cause for a challenge for implied bias or principal challenge, yet there are grounds to suspect that he will act under some undue influence or bias, in which case the triers, in the exercise of a sound discretion, may reject him. In this trial it is competent to prove intimacy of the challenged juror and the opposite party; that they are members of the same society, partners in business, and the like; also, the feelings of the juror-whether they amount to positive partiality, or ill will, or not; whether his views and opinions are mature, absolute, or hypothetical. Indeed, every circumstance or fact from which bias,

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partiality, or prejudice may be inferred, although weak in degree, may be thoroughly inquired into. The inquiry should by no means be limited to the isolated question of a fixed and absolute opinion of the guilt or innocence of the prisoner.-People vs. Bodine, 1 Denio, p. 307; People vs. Honeyman, 3 id., p. 124.

1085. (§ 358.) The triers must thereupon find the challenge either true or not true, and their decision is final. If they find it true, the juror must be excluded.

NOTE.-See notes to Secs. 1074, 1076, 1084, ante.

10S6. (§ 359.) All challenges to an individual juror, except peremptory, must be taken, first by the defendant, and then by the people, and each party must exhaust all his challenges before the other begins.

NOTE.-See People vs. Scoggins, 37 Cal., p. 676, et seq.

1087. (§ 360.) The challenges of either party for cause need not all be taken at once, but they must be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class:

1. To the panel;

2. To an individual juror, for a general disqualification;

3. To an individual juror, for an implied bias;
4. To an individual juror, for an actual bias.

NOTE.-See People vs. Scoggins, 37 Cal., p. 676; Taylor, Adm'r, vs. West. Pac. R. R. Co., Oct. Term, 1872.

1088. (§ 361.) If all challenges on both sides are challenges disallowed, either party, first the people and then the

may be

challenges

taken after defendant, may take a peremptory challenge, unless the parties' peremptory challenges are exhausted.

for canse
on both

ides are
exhausted.

NOTE.-See People vs..
. Scoggins, 37 Cal., p. 676, et seq.

CHAPTER II.

THE TRIAL.

SECTION 1093. Order of trial.

1094. When order of trial may be departed from.

1095. Number of counsel who may argue the case to the

jury.

1096. Defendant presumed innocent until the contrary is proved. Reasonable doubt.

1097. When reasonable doubt as to degree, he can be convicted only of lowest.

1098. Separate trials.

1099. Discharging one of several defendants before verdict, that he may be a witness.

1100. Same.

1101. Effect of such discharge.

1102. Rules of evidence in civil applicable to criminal cases,

except, etc.

1103. Evidence on trial for treason.

1104. Evidence on trial for conspiracy.

1105. When burden of proof shifts in trials for murder.

1106. Evidence on a trial for bigamy.

1107. Evidence upon a trial for forging bank bills, etc.

Experts.

1108. Evidence upon trial for abortion and seduction.

1109. Evidence on a trial for selling, etc., lottery tickets.

1110. Evidence of false pretenses.

1111. Conviction cannot be had on uncorroborated testimony of accomplice.

1112. If the evidence show higher offense than the one charged, proceedings to be had thereon.

1113. Court may discharge jury when it has not jurisdic-
tion, etc.

1114. Proceedings, if jury discharged for want of jurisdic-
tion of offense committed out of the State.
1115. Proceedings in such case, when offense committed in
the State.

1116. Same.

1117. Proceedings, if jury discharged because the facts do

not constitute an offense.

1118. When evidence on either side is closed, Court may

advise jury to acquit.

1119. View of premises, when ordered and how conducted. 1120. Knowledge of juror to be declared in Court, and he to

be sworn as a witness.

1121. Jurors may be permitted to separate during trial. If kept together, oath of officer.

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SECTION 1122. Jury at each adjournment must be admonished, etc. 1123. Proceedings when juror becomes unable to perform

his duties.

1124. Court to decide questions of law arising during trial. 1125. On indictment for libel, jury to determine law and fact. 1126. In all other cases Court to decide questions of law. 1127. Charging the jury.

1128. Jury may decide in Court or retire in custody of officers. Oath of officers.

1129. When defendant on bail appears for trial he may be

committed.

1130. If District Attorney fails to attend, Court may appoint.

1093. (§ 362.) The jury having been impaneled and sworn, the trial must proceed in the following order:

1. If the indictment is for felony, the Clerk must read it and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with;

2. The District Attorney or other counsel for the people must open the cause and offer the evidence in support of the indictment;

3. The defendant or his counsel may then open the defense, and offer his evidence in support thereof;

4. The parties may then respectively offer rebutting testimony only, unless the Court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case;

5. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the District Attorney or other counsel for the people must open and the District Attorney may conclude the argument;

6. The Judge must then charge the jury, if requested by either party; he may state the testimony and declare the law, but must not charge the jury in respect to matters of fact; such charge must be reduced to writing before it is given, unless by the mutual consent of the parties it is given orally, or unless it is fully taken down by the Reporter of the Court at the time it is given.

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