6 P. 112 | Idaho | 1885
The defendant was tried and convicted at the June term, 1884, in the district court in Alturas county, on a charge of murder in the first degree. He appeals from the judgment, and the order overruling his motion for new trial, and assigns as error the ruling of the court compelling him, in impaneling the trial jury,. to exercise his peremptory challenges as the jurors were severally called, and before the whole number of twelve jurors were drawn, as in civil causes. Under the statutes of this territory the method of selecting, drawing, and summoning jurors is the same for both criminal and civil actions. The procuring the attendance of jurors preliminary to the trial is provided for in our Code of Civil Procedure, from sections 73-108, inclusive. Section 109 directs that when an action is called for trial such proceedings shall be had in impaneling a trial jury as are prescribed in said code; and section 111 provides that if the action is a criminal one the jury must be impaneled as provided by the statutes relating thereto. The statutes relating thereto are in the Criminal Practice Act. Sections 109 and 111 of the Code of Civil Procedure, if not contradictory, have at least the tendency to confuse the practice; but the obvious intention of the legislature was to provide different methods of impaneling juries in civil and criminal actions. This method in civil causes is specified in chapter 23 of our Civil Code; and in criminal actions, in the Criminal Practice Act, from sections 318-353, inclusive. Section 313 of the Criminal Practice Act, which provides that the trial juries in criminal actions shall be formed in the same manner as trial juries in civil actions, if it was intended to apply to the impaneling of trial juries
These sections clearly contemplate that in trials for murder after a juror is called he shall remain under the control of the court until he is rejected as incompetent; or, if accepted, until the termination of the trial. The ordinary import of the language used in these sections would justify the practice of requiring the respective parties to exercise all their challenges, either peremptory or for cause, and, if accepted, that each juror be sworn to try the cause before another is called. This was the method pursued in impaneling the jury in the case at bar, and we think the exception to it is not well taken. This method may be, and often is, so far modified in the discretion of the court as to allow the clerk to draw twelve names from the box before any challenges are interposed, and after these are examined for cause and passed upon, to allow others to be drawn to take the place of those excused, and allowing the defendant to examine and pass upon all those thus called before exercising his peremptory challenges. We see no objection to this method, provided that in case of recess or adjournment the peremptory challenges be exercised or waived upon all those passed for cause, and those accepted be sworn to try the cause and remain under the control of the court.
The reason for this practice may be found in the necessity on the part of the government of securing jury trials as far as possible free from every suspicion of improper influences.
The legislature have modified the effect of swearing the juror to try the cause by providing, in section 4 of the act before referred to, that a jury sworn to try an indictment for any offense, except murder, may at any time during the trial, before the submission of the cause, in the discretion of the court, be permitted to separate; but this enactment does not modify the method of impaneling the jury. The appellant also assigns as error the admission of the statement of defendant before the committing magistrate at the time of his preliminary examination. The objection to this evidence was not distinctly made, nor was any exception taken to its admission. It is an established principle in practice that when evidence is admitted under objections, and no exception is taken to the ruling of the court, the objection is waived. (Turner v. Water Co., 25 Cal. 398.)