it is insufficient for the District Attorney to admit that the witnesses, if present, would swear to the facts as stated he must admit the truth of the facts.-People vs. Dias, 6 Cal., p. 249. The affidavit should show that the defendant has used due diligence to procure the attendance of the witness, setting out the facts constituting it.-People vs. Baker, 1 Cal., p. 403; People vs. Thompson, 4 Cal., p. 238. To show the fact that a certain witness resides in another county is insufficient, though it is also shown that a subpoena was placed in the hands of the Sheriff of that other county, and a return made of "Not served." People vs. Williams, 24 Cal., p. 31. The affidavit and proofs should show all the efforts made to procure the attendance of absent witnesses, and if subpoenas have or have not been served, how in the first case, and why not, and what has been done in the second. In each case the service, if had, must be such as would command obedience under the law. People vs. Joselyn, 29 Cal., p. 562, supports this position. It is the general rule that statements of belief will be insufficient; the grounds of belief, the character of the evidence, and its materiality must be shown. When the postponement is on the ground of surprise at not finding the name of a witness on the indictment who is proposed to be examined, the surprise must be shown by affidavit, or in some other proper form suggested.-People vs. Symonds, 22 Cal., p. 348. Particularly in the case of an absent witness resident out of the State must the grounds of belief be set out and the nature and character of the information. The showing must be to obtaining the presence of the witness, or it must be to obtaining his deposition; it must not be to either the one or the other, but as positive as may be as to the one or the other as a separate basis of the application.-People vs. Francis, 38 Cal., pp. 188, 189. See leading rules regulating "postponements," and the exercise of this discretionary power of the Court, 3 Whar. Am. Cr. Law, pp. 411-415, et al., Sec. 2922, et seq., and cases there cited. TITLE VII. OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT. CHAPTER I. Challenging the jury. II. The trial. III. Conduct of the jury after cause is submitted to them. IV. The verdict. V. Bills of exception. VI. New trials. VII. Arrest of judgment. CHAPTER I. CHALLENGING THE JURY. SECTION 1055. Definition and division of challenges. 1056. Defendants cannot sever in challenges. 1057. Panel defined. 1058. Challenge to the jury defined. 1059. Upon what founded. 1060. When and how taken. 1061. If sufficiency of the challenge be denied, adverse party 1062. If exception overruled, Court may allow denial, etc. 1065. If challenge allowed, jury to be discharged; if dis allowed, to be impaneled. 1066. Defendant to be informed of his right to challenge individual jurors. 1067. Kinds of challenges to individual juror. 1068. Challenge, when taken. 1069. Peremptory challenge, what, and how taken. 1070. Number of peremptory challenges. 1071. Definition and kinds of challenge, for cause. 1072. General causes of challenge. 1073. Particular causes of challenge. SECTION 1074. Ground of challenge for actual bias.. 1077. Exceptions to challenge, and denial thereof. 1079. Triers, how appointed. Majority may decide. 1081. Juror challenged may be examined as a witness. 1082. Rules of evidence on trial of challenge. 1083. Challenge for implied bias, how determined. 1084. Instructions to triers on trial of challenge for actual bias. 1085. Verdict of triers, and its effect. 1086. Challenges, first by the defendant and then by the people. 1087. Order of challenges. 1088. Peremptory challenges may be taken after challenges for cause on both sides are exhausted. 1055. (§ 326.) A challenge is an objection made Definition to the trial jurors, and is of two kinds: 1. To the panel; 2. To an individual juror. NOTE." Challenge."-Bouvier's Law Dict.: "An exception to the jurors who have been arrayed to pass upon a cause on its trial." An exception to those who have been returned as jurors.-Coke Littleton, p. 155, b. Defendant is entitled to a lawful jury, but it is a qualified right, nevertheless. The law provides exemptions from jury duty, and one so exempt may not be compelled to serve, though drawn, and the like. This is supported by People vs. Arceo, 32 Cal., p. 50. A panel of jurors may be served after the term commences.— People vs. Rodriguez, 10 Cal., p. 50. It is not error for the Court to discharge a juror, notwithstanding the objection of the defendant.-People vs. Lee, 17 Cal., p. 76; People vs. McCalla, 8 Cal., p. 301. Jurors may be questioned in regard to having formed an opinion, etc., before being challenged for cause.-People vs. Backus, 5 Cal., p. 275. An allowance of a challenge on the part of the people which is improper is good ground for reversal of a verdict of guilty.-People vs. Stewart, 7 Cal., p. 140. See the case of Arceo, supra, on discretion of the Court to excuse jurors who speak different languages, under proviso to statute excepting Monterey, etc. The People vs. Earnest, October Term, 1872. and division of challenges. cannot An indictment found by a jury which was summoned as a trial jury and impaneled as a Grand Jury is illegal. By the Court (Filed November 15th, 1872): The statute (Hit., Secs. 3918, 3919) requires that a copy of the order of the Court for the summoning of a Grand Jury should be delivered to the Sheriff, and that it shall be the duty of that officer to summon the Grand Jury "upon the receipt of the order," etc. In this case the only order delivered to the Sheriff was an order to summon twentyfour persons to serve as trial jurors. This trial jury was subsequently impaneled by the Court as a Grand Jury, and found the indictment upon which the prisoner was convicted, and his motion to set aside the indictment, duly made on that ground, was denied. Had a subpoena been issued to summon twenty-four witnesses in the case, there would have been just as much authority in the Court to impanel them as a Grand Jury as to impanel this trial jury as a Grand Jury. Judgment reversed and cause remanded, with directions to set aside the indictment, and for such further proceedings as may be proper. Defendants 1056. (§ 327.) When several defendants are tried together they cannot sever their challenges, but must join therein. sever in challenges. Panel defined. Challenge to the jury defined. Upon what founded. NOTE.-Challenges, peremptory and for cause, must be taken together and not severed.-People vs. McCalla, 8 Cal. p. 301. 1057. (§ 328.) The panel is a list of jurors returned by a Sheriff, to serve at a particular Court or for the trial of a particular action. 1058. (§ 329.) A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party. NOTE.-See Sec. 1064, post, and note. 1059. (§ 330.) A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions, or on the intentional omission of the Sheriff to summon one or more of the jurors drawn. NOTE.-Challenges to the panel were formerly challenges to the array: 1. Principal challenge to the array; 2. Challenge to the array for favor; of which, see Am. Cr. Law, 3 Whart., pp. 425, 426, Secs. 29472953, and notes. The statutory challenge to the panel is based on a departure from the statute providing for the drawing or an omission to summon the jury as required. See note to Sec. 1046, ante. how taken. 1060. (§ 331) A challenge to the panel must be When and taken before a juror is sworn, and must be in writing or be noted by the Phonographic Reporter, and must plainly and distinctly state the facts constituting the ground of challenge. NOTE.-See note to Sec. 1068, post, et alia. 1061. (§§ 332, 333.) If the sufficiency of the facts alleged as ground of the challenge is denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered on the minutes of the Court, or of the Phonographic Reporter, and thereupon the Court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true. NOTE.-See note to Sec. 1076, post, and People vs. 1062. (§ 334.) If, on the exception, the Court finds the challenge sufficient, it may, if justice requires it, permit the party excepting to withdraw his exception, and to deny the facts alleged in the challenge. If the exception is allowed, the Court may, in like manner, permit an amendment of the challenge. If suffithe ciency of challenge be denied, adverse party may except. Exception, by how taken and tried. If exception overruled, anal, etc. Court may allow Denial of how made, challenge, and trial thereof. 1063. (§§ 335, 336.) If the challenge is denied, the denial may be oral, and must be entered on the minutes of the Court, or of the Phonographic Reporter, and the Court must proceed to try the question of fact; and upon such trial, the officers, whether who may judicial or ministerial, whose irregularity is com- examined plained of, as well as any other persons, may be challenge. be on trial of |