DEPARTMENT No. 2. [Filed December 21, 1880.] THE PEOPLE, RESPONDENT, VS. CAR SOY, APPELLANT. CRIMINAL LAW-QUESTIONS TO JURORS-PREJUDICE AGAINST CHINESE. In empaneling a jury to try a criminal cause against a Chinaman, the defendant has a right to ask a proposed juror whether, other things being equal, he would take the word of a Chinaman as soon as that of a white man; and the exclusion of such a question is error. Appeal from the Superior Court of San Joaquin County. J. G. Swinnerton, G. E. McStay and W. M. Gibson, for appellant. A. L. Hart, Attorney-General, for respondent. MORRISON, C. J., delivered the following opinion: The defendant was prosecuted by information in the Superior Court of the County of San Joaquin, for the crime of robbery, and was convicted. On this appeal several errors are assigned, only one of which it will be necessary for the Court to notice. The defendant is a Chinaman, and on impaneling a jury in the case, counsel for the defendant asked each of the jurors the following questions: 1. "Other things being equal, would you take the word of a Chinaman as soon as you would that of a white man?" To this question the District Attorney objected on the ground that the same was incompetent, irrelevant and immaterial. The Court sustained the objection, and the defendant excepted. 2. "If the defendant, a Chinaman, should be sworn as a witness in his own behalf, would you give his testimony the same credit that you would give to the story told by a white person under the same circumstances?" To this question the District Attorney objected, on the ground that the same was incompetent, irrelevant and immaterial. The Court sustained the objection and the defendant excepted. We think the questions were proper, and that the Court erred in its rulings. The Court in the case of Watson vs. Whitney, 23 Cal. 375, lays down the correct doctrine on this subject. In that case it is said: "In impaneling the jury, the defendant propounded the following questions to each juror, which were objected to by the plaintiff, and excluded by the Court, and this is assigned as error: 1. Have you heard much conversation among the people in regard to the rights of the parties on the Suscol Rancho; and if so, have you formed or expresed an opinion in regard to those rights? 2. Have you any bias or prejudice against that class of citizens on the Suscol Rancho commonly called squatters, of which class the defendant is one? 3. Have you ever sat on any of these Suscol cases, similar to this, as a trial juror?' It is not necessary to determine whether affirmative answers to these questions, or any one of them, would have formed a proper ground for a challenge for cause. Each party has a right to put questions to a juror, to show not only that there exists proper grounds for a challenge for cause, but to elicit facts to enable the party to decide whether or not he will make a peremptory challenge, and the defendant had a right to put these questions if they were pertinent for either purpose. He was entitled to an anwer to these questions to enable him to decide whether he would make a peremptory challenge, and the Court erred in refusing them. The reason of the rule above stated applies with full force to this case. Judgment and order reversed, and cause remanded for a new trial. I concur: Sharpstein, J. I concur in the judgment: Myrick, J. IN BANK. [Filed December 17, 1880.] WILLIAM R. WELLS, APPELLANT, VS. BLOOMFIELD HARTER, MARY HARTER ET AL., RESPONDENTS. Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco. E. S. Lawrence, for appellant. A. W. Thompson, for respondents. By the Court: For the reasons set forth in the opinion of Department o. 1, judgment and order affirmed. [The opinion referred to was rendered March 19, 1880. See Pacific Law Journal, Vol. 5, page 234.] DEPARTMENT No. 2. [Filed December 24, 1880.] THE PEOPLE, RESPONDENT, VS. A. C. IAMS, APPELLANT. DRAWING OF Jury-Date of ORDER FOR DRAWING IN CLERK'S CERTIFICATE. The omission of the Clerk to insert in his certificate of the drawing of a jury the date of the order for the drawing, as required in Section 219 of the Code of Civil Procedure, is not a fatal one. CRIMINAL LAW-RIGHT OF CHALLENGING JURORS-WHEN TO BE EXERCISED. A defendant in a criminal case cannot insist upon having twelve jurors in the box every time he exercises his right of challenge; on the contrary, when twelve names are drawn all challenges against any of them must be exercised, and the jurors remaining after the disposition of the challenges, sworn in, before any other names are drawn. IMMATERIAL TESTIMONY PROPERLY RULED OUT. In a trial for murder, where there was a conviction for manslaughter, the widow of deceased, who had put away a knife and a piece of iron found in the boots of deceased when they were taken off, was asked whether she put them away of her own volition, and whether any one directed her to put them away; and the questions, upon objection of the prosecution for immateriality, were ruled out: Held, that even if it had appeared that deceased directed her to put them away, the testimony would not have helped defendant, and that there was therefore no error in the ruling. HOMICIDE-MERE THREATS NO JUSTIFICATION. Mere threats alone are not sufficient to justify homicide in any case. HOMICIDE-QUESTION OF CRIMINAL RELATIONS BETWEEN Defendant and DeCEASED'S WIFE. On a murder trial, which resulted in a conviction for manslaughter, defendant was asked if any criminal intimacy had ever existed between him and deceased's wife, who was a witness for the prosecution, and the question, on objection, was ruled out: Held, that the inquiry could not affect the question of the guilt or innocence of the accused, and was properly ruled out. HOMICIDE-TESTIMONY AS TO CHARACTER OF DECEASED. Where in amurder case the defense introduces testimony as to the character of the deceased, the prosecution has a right to introduce testimony on the same point. Appeal from the Superior Court, Monterey County. W. H. Webb and James A. Wall, for appellant. A. L. Hart, Attorney-General, for respondent. MORRISON, C. J., delivered the opinion of the Court: An information was filed by the District Attorney in the Superior Court of Monterey County, charging the defendant with the crime of murder, and the trial resulted in a conviction of the crime of manslaughter. On the appeal several errors are assigned to the proceedings in the Court below, which we will consider in this opinion: 1. The first objection taken by the defendant on trial was in the form of a challenge to the panel of trial jurors drawn to serve at the July session of the Superior Court of Monterey County. It was claimed that there was a substantial departure from the form prescribed by the statute in respect to the drawing of the jury in this: That the Clerk failed in his certificate, which was attached to the list of jurors drawn, to state the date of the order directing such drawing. In Section 219, C. C. P., provides that: "After the drawing shall be completed, the Clerk shall make a copy of the list of names of the persons so drawn, and certify the same. his certificate he shall state the date of the order and of the drawing, and the number of jurors drawn, and the time when, and the place where, such jurors are required to appear. Such certificate and list shall be delivered to the Sheriff for service." The order itself was introduced in evidence, from which it appears that it was properly made and entered on Tuesday, June 15, 1880. The only purpose which could be subserved by incorporating in the Clerk's certificate the date of the order, would be the identification of it. The Code does not require that it shall be made any given number of days before the session of the Court, or at any stated time before the jurors shall be required. Section 214 of the same Code provides that: "Whenever the business of the Superior Court shall require the attendance of a trial jury for the trial of criminal cases, * and no jury is in attendance, the Court may make an order, directing a trial jury to be drawn and summoned, to attend before said Court;" and the succeeding section provides that: "Immediately upon the order mentioned in the preceding section being made, the Clerk shall, in the presence of the Court, proceed to draw the jurors from the jury box." It appears from the transcript that the order was made on the fifteenth day of June, and it further appears that the drawing took place on that day. The proceedings were in all respects regular and in accordance with the provisions of the Code. We are, therefore, of opinion that the mere omission of the Clerk to insert in his certificate the date of the order was not a fatal one, and therefore the Court below committed no error in denying defendant's challenge to the panel of trial jurors. 2. The second point made on this appeal is, that the Court erred in the mode pursued by it in selecting a jury. It was claimed on the trial, that it was defendant's right to have twelve jurors in the box, before he should be at any time required to exercise his right to challenge a juror, either peremptorily or for cause. This question has been passed upon twice by the Supreme Court, and both times adversely to the position now taken on this appeal. In the case of The People vs. Scoggins, 37 Cal. 676, Mr. Justice Crockett examines the provisions of the statute relating to the selection of jurors in both civil and criminal cases, and after clearly defining the method to be pursued in each case, he says: "In order to avoid all misconstruction on this important point of practice, we repeat that in a criminal action twelve names must be drawn from the jury box, and the defendant may examine each separately and exhaust his challenges for cause before challenging any one peremptorily. If he should accept say six, and challenge six, those accepted must then be sworn, and six additional names must be drawn and presented for examination, with which the same process should be repeated, and so continued, until the jury is complete." In the more recent case of The People vs. Russell, 46 Cal. 121, the same Court says: "The first ground of error relied upon is that the Court erred in requiring the defendant to exercise his right of peremptory challenge prematurely, and before twelve jurors had been procured whom the Court decided to be competent and qualified. But the action of the Court was in strict accordance with the ruling of this Court in People vs. Scoggins, 37 Cal. 676, and was correct, unless that case is to be now overruled. After a careful consideration of the question, we adhere to the ruling in that case as to the method to be pursued in impaneling a jury in a criminal action." These cases settle this question of practice, and we adhere to the rule laid down by them. 3. The third point presented on this appeal is, that the Court erred in sustaining certain objections to the testimony of Mrs. Susie Mattart, the widow of the deceased. It appears from the evidence that a knife and piece of iron were found in the boots of the deceased when his boots were taken off, which knife and piece of iron the witness made some disposition of. She was asked: "Did you put them away of your own volition?" To this question an objection was made by the District Attorney, and the objection was sustained by the Court. She was also asked "if any one directed her to put them away," and to this question an objection was interposed on behalf of the People, which was also sustained. We are of the opinion that the inquiry was an immaterial one, and cannot see how the defendant was prejudiced by the action of the Court. If the question had elicited the reply that the knife and piece of iron were put away by the direc |