72 P. 505 | Cal. | 1903
The defendant, having been convicted in the superior court of Los Angeles County of the crime of murder in the first degree, and adjudged to suffer death, appeals from the judgment and order denying his motion for a new trial. The principal question presented by this appeal is as to the impanelment of the trial jury.
When the case came on for trial, on April 21, 1902, in department one of the superior court of said county, in which department the information against him had been filed and was regularly pending, there was a regular panel of jurors present, which had been, on January 23, 1902, drawn from the trial jury-box of the county, by order of the presiding judge of said department, to serve as term trial jurors in said department one, for the period of three months from February 1, 1902, and until legally discharged.
There was also present the regular panel of department three of said court, consisting of twenty-three jurors, brought into department one on this day for the trial of this case, in the manner and for the reasons indicated by the statement of the presiding judge of department one, which is contained in the record, and is as follows, viz.: —
"Thinking that we had not enough regular jurors here in our regular panel to obtain a jury in this case, knowing that the defendant had twenty peremptory challenges, and the people ten; that the challenges alone would exceed the numbr of jurors that we had here in this department, I ordered the clerk to obtain the term trial jury from department three, so as to give you plenty of names to draw from, and not to have to issue a special venire." *62
These jurors, so procured, had been, on April 7, 1902, regularly drawn from the trial jury-box of the county by order of the presiding judge of department three, for the trial of cases at issue in said department three. The names of all these jurors in attendance, both those belonging to the panel of department one and those belonging to department three, were placed together in the trial jury-box, and the jury drawn therefrom to try this case, the jury as completed and sworn having upon it jurors from both panels.
Before any juror was sworn, defendant made his objection to the method adopted, in the form of a challenge to the panel, fully and specifically stating his objections to the placing in the jury-box of the names of twenty-three persons who were not on the regular panel of the department, and who were not present, it was claimed, in pursuance of any law or any valid direction of the court. The challenge, after the facts above stated had been elicited, was disallowed, and defendant saved his exception to the ruling of the court. In the impanelment of the jury, he exercised all of the peremptory challenges allowed under the law, and asked to be allowed to exercise further and additional peremptory challenges, which application was denied, and he excepted to such denial.
If it be conceded that the alleged irregularity is not a ground of challenge to the panel, we are satisfied that the point could be made by objection seasonably interposed, and that the challenge here made, fully and specifically stating the matters complained of, should be treated as such an objection.
The precise question presented by these facts has never been determined by this court, although it was involved in the case ofPeople v. Compton,
The attorney-general is thus driven to the necessity of contending that all drawn jurors attending any and all of the six departments of the superior court of Los Angeles County constituted but one panel, basing this contention upon the fact that there is but one superior court in that county. It is apparent that there can be nothing in this contention, when we consider for a moment what a panel of jurors is, and the manner in which these jurors were drawn and summoned, and the expressed purpose for which they are required to attend. As was said inCottrell v. Cottrell,
We are satisfied that the action of the court below in calling in and using the twenty-three jurors from another department in the impanelment of a jury for the trial of defendant *65 was such a substantial departure from the statute as to necessitate a reversal. It is no sufficient answer to the objection of defendant that the jurors so obtained were probably fair and impartial. Such an answer could be made in any case, regardless of the extent to which the statutes had been violated. Where the statute provides a method for the selection of juries, that statute must be at least substantially followed. The question as to whether or not, where there are two or more departments of the superior court in any county, the judges thereof may unite in drawing one panel for general service in all of said departments, is not here involved, and need not here be decided, for such a course was not followed as to the jurors in the case at bar. Here the judge of each department had regularly drawn his own panel for service in his own department; such panels were drawn at different times, and constituted separate and distinct panels, which could be brought together and joined only by some subsequent order, for which the statute furnishes no authority. The method suggested, of one general panel, may be practicable in some counties having two or more departments, a question not necessary here to decide, but it is clear that to make it possible the jurors must all be drawn at the same time, and the panel so drawn and summoned must at all times be used asone panel.
The instruction given as to the manner in which the jury should determine the credibility of witnesses is, almost word for word, the instruction given in the case of People v. Benc,
There is nothing in the point made as to the argument of the district attorney. The defendant had voluntarily gone upon the stand as a witness, and as such witness went fully into the details of the difficulty, claiming that the killing was in self-defense. Under these circumstances the district attorney was authorized in commenting upon his failure to deny certain alleged statements testified by other witnesses to *66
have been made by him, inconsistent with his testimony given on the trial. (Nevada v. Harrington,
On account of the irregularity in the method of impaneling the jury, the judgment and order are reversed and the cause remanded for a new trial.
Shaw, J., Van Dyke, J., McFarland, J., Lorigan, J., and Henshaw, J., concurred.