17 Cal. 320 | Cal. | 1861
Baldwin, J. concurring.
The objection that one of the jurors was an alien could not be taken for the first time upon the motion for a new trial. The defendants might have examined him upon the subject, and exercised their right of challenge before he was sworn, but having failed to do this, they must suffer the consequences of their own neglect. The authorities upon the question are collected by Graham & Waterman, in their work on New Trials. There is some conflict in the cases, but the weight of authority is largely in favor of the rule as we have stated it.
We cannot reverse the judgment upon the ground that the record does not show that the instructions of the Court were given in writing. The presumption is that they were given in the manner provided by law, and in the absence of anything to the contrary, this presumption must prevail.
The declarations of the defendant, Chung Lit, were properly excluded. They were no part of the res gestee, and we do not see upon what principle they could have been admitted.
The other points made are without merit. The judgment is affirmed, and the Court below will designate a day for the execution of its sentence.
