party may Exception, how made the challenge. The exception need not be in writing, but adverse must be entered upon the minutes of the court; and there- except. upon the court must proceed to try the sufficiency of the and tried. challenge, assuming the facts alleged therein to be true. facts tion over may allow challenge. If allowed, denial of § 365. If, on the exception, the court deem the challenge If excepsufficient, it may, if justice require it, permit the party ruled.court excepting, to withdraw his exception, and to deny the alleged in the challenge. If the exception be allowed, court may, in like manner, permit an amendment of challenge. may per mit chal the lenge to be the amended. challenge, § 366. If the challenge be denied, the denial may, in Denial of like manner, be oral, and must be entered upon the minutes how made, of the court; and the court must proceed to try the question of fact. and trial thereof. be exam trial of § 367. Upon the trial of the challenge, the officers, who may whether judicial or ministerial, whose irregularity is com- ined on plained of, as well as any other persons, may be examined challenge. to prove or disprove the facts alleged as the ground of the challenge. lenge jury to be dis § 368. If, either upon an exception to the challenge, or a If chaldenial of the facts, the challenge be allowed, the court must allowed, discharge the jury, so far as the trial of the indictment in charged. question is concerned. If the challenge be disallowed, the lowed, court must direct the jury to be impaneled. If disaljury to be impaneled be Defendant formed of to be in § 369. Before a juror is called, the defendant must informed by the court, or under its direction, that if he intend to challenge an individual juror, he must do so when an individ the juror appears, and before he is sworn. his right to challenge ual juror. § 370. A challenge to an individual juror may be taken Kinds of either by the people or by the defendant, and is either 1. Peremptory, or 2. For cause. challenge to individual juror. when §371. A challenge must be taken when the juror Challenge, Peremp tory chal lenge. Number of peremptory challeges to which de fendant is entitled. Definition and kinds of challenge for cause. General causes of challenge. Particular causes of discretion, for good cause, set aside a juror at any time before evidence is given in the action. § 372. A peremptory challenge is an objection to a juror, for which no reason need be given, but upon which the court must exclude him. § 373. Peremptory challenges must be taken in number as follows: 1. If the crime charged be punishable with death, thirty; 2. If punishable with imprisonment for life, or for a term of ten years or more, twenty; 3. In all other cases, five. § 374. A challenge for cause is an objection to a partic ular juror, and is either, 1. General, that the juror is disqualified from serving in any case; or 2. Particular, that he is disqualified from serving in the case on trial. § 375. General causes of challenge are, 1. A conviction for a felony; 2. A want of any of the qualifications prescribed by the Code of Civil Procedure, to render a person a competent juror. § 376. Particular causes of challenge are of two kinds: challenge. 1. For such a bias, as, when the existence of the facts is ascertained, does in judgment of law disqualify the juror, and which is known in this Code as implied bias; 2. For 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 court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this Code as actual bias. But the previous expression or formation of an opinion or impres sion in reference to the guilt or innocence of the defend is not a sufficient ground of challenge for actual bias, to any person otherwise legally qualified, if he declare on oath, that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain such a present opinion or impression as would influence his verdict. § 377. A challenge for implied bias may be taken for all Grounds or any of the following causes, and for no other: 1. Consanguinity or affinity within the ninth degree, to the person alleged to be injured by the crime charged, or on whose complaint the prosecution was instituted, or to the defendant; 2. Bearing to him the relation of guardian or ward, attor ney or client, or client of the attorney or counsel for the people or defendant, master or servant, or landlord or tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages; 3. Being a party adverse to the defendant in a civil action or having complained against, or been accused by him in a criminal prosecution; 4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment; 5. Having served on a trial jury, which has tried another person for the crime charged in the indictment; 6. Having been one of a jury formerly sworn to try the same indictment, and whose verdict was set aside or which was discharged without a verdict, after the cause was submitted to it; 7. Having served as a juror, in a civil action brought against the defendant, for the act charged as a crime; 8. If the crime charged be punishable with death, the entertaining of such conscientious opinions as would pre of challenge for implied bias. Grounds of chal lenge for actual bias tion, not a shall neither be permitted nor compelled to serve as a juror. § 378. A challenge for actual bias may be taken for the cause mentioned in the second subdivision of section 376, and for no other cause. Exemp- 379. An exemption from service on a jury is not a ground of cause of challenge, but the privilege of the person exempted. challenge. Causes of challenge, how stated. Excep tions to § 380. In a challenge for implied bias, one or more of the causes stated in section 377 must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section 376 must be alleged. In either case, the challenge may be oral, but must be entered upon the minutes of the court. § 381. The adverse party may except to the challenge, in challenge the same manner as to a challenge to the panel; and the thereof. same proceedings must be had thereon, as prescribed in and denial Challenge, how tried, section 364, except that, if the challenge be allowed, the juror must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge. § 382. If the facts be denied, the challenge must be tried if denied. by the court which must either allow or disallow the same and direct an entry accordingly on the minutes. If the challenge be allowed, the juror must be discharged. Juror chal- examined as a witness. Rules of evidence §383. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness, to prove or disprove the challenge; and is bound to answer every question pertinent to the inquiry therein. § 384. Other witnesses may also be examined on either on trial of side; and the rules of evidence applicable to the trial of other issues, govern the admission or exclusion of testi challenge. lenges, 385. Challenges to an individual juror, except those Chalwhich are peremptory, must be taken, first by the defend. rst by ant, and then by the people. § 386. Challenges of either party must be taken : 1. To the panel; 2. To an individual juror, for a general disqualification; 3. To an individual juror, for implied bias; 4. To an individual juror, for actual bias; defendant and then by the people. Order of challenges. $387. The first twelve persons who appear, as their Jury to be names are drawn and called, who are approved as indiffer- sworn, &c. ent between the parties, and are not discharged or excused, must be sworn; and constitute the jury to try the issue. II. Conduct of the jury, after the cause is submitted to them. CHAPTER I. THE TRIAL. SECTION 388. In what order trial to proceed. 389. Defendant presumed innocent, until contrary proved. In case of 390. When reasonable doubt of which degree he is guilty, he must be 391. Separate trial of defendants jointly indicted. 392. Rules of evidence in civil cases applicable in criminal cases, ex- 393. Defendant as witness. 394. Compensation of witness. 395. Confession of defendant, when evidence, and its effect. 396, 397. Evidence on trial for treason. 398. Evidence on trial for conspiracy. 399. Conviction cannot be had on testimony of accomplice, unless cor- |