3141. Id. When and how taken. A challenge to the panel must be taken before a juror is sworn and must be in writing or be noted by the stenographer, and must plainly and distinctly state the facts constituting the ground of challege. [C. L. § 5009*. Cal. Pen. C. 2 1060. In absence of stenographer, clerk to take testimony in writing, ? 3476. 3142. Id. Jury discharged, if allowed; impaneled, if disallowed. If the challenge to the panel is allowed, the court must discharge the jury, so far as the trial in question is concerned. If it is disallowed, the court must direct the jury to be impaneled. [C. L. § 5013*. Cal. Pen. C. 2 1065*. 3143. Peremptory or for cause. Three peremptory challenges, when taken. The challenges to individual jurors are either peremptory or for cause. Each party is entitled to three peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff. [C. L. § 3356*. Cal. C. Civ. P. ? 601*. 3144. Grounds of challenge for cause. Challenges for cause may be taken on one or more of the following grounds: 1. A want of any of the qualifications prescribed by law to render a person competent as a juror. 2. Consanguinity or affinity within the fourth degree to either party. 3. Standing in the relation of debtor and creditor, guardian and ward, master and servant, employer and clerk, or principal and agent to either party; or being a member of the family of either party; or a partner, or united in business with either party; or being surety on any bond or obligation for either party. 4. Having served as a juror or been a witness on a previous trial between the same parties for the same cause of action, or being then a witness therein. Pecuniary interest on the part of the juror in the event of the action, or in the main question involved in the action, except his interest as a member or citizen of a municipal corporation. 6. That a state of mind exists on the part of the juror with reference to the case or to either party which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury founded upon public rumor, statements in public journals, or common notoriety; provided, that it satisfactorily appear to the court that the juror can and will, notwithstanding such opinion, act impartially and fairly upon the matter to be submitted to him. [C. L. § 3357*. Cal. C. Civ. P. ? 602*. Qualification of juror, ? 1297. Who exempt from jury duty, ? 1299. Religious belief or absence thereof not to disqualify juror, Con. art. 1, sec. 4. It is not material whether the opinion of a juror is founded upon rumor or fact. Conway v. Clinton, 1 U. 215. Party cannot complain of denial of his challenge for cause to juror whom he subsequently challenges peremptorily. Id. 3145. Id. Tried by the court. Witnesses. Challenges for cause must be tried by the court. The juror challenged, and any other person, may be examined as a witness on the trial of the challenge. [C. L. § 3358. Cal. C. Civ. P. 2 603. 3146. Oath of jury. As soon as the jury is completed, an oath must be administered to the jurors, in substance, that they and each of them will well and truly try the matter in issue between plaintiff, and ant, and a true verdict render according to the evidence. [C. L. § 3359. Cal. C. Civ. P. 2 604. 3147. Order of trial. of evidence. Argument. defend Court to instruct in writing at conclusion proceed in the following order, unless the judge for special reasons otherwise directs: 1. The plaintiff, after stating the issue, shall open the case and produce the evidence on his part. 2. The defendant may then open his defense, and offer his evidence in support thereof. 3. The parties may then respectively offer rebutting evidence only, unless the court for good reasons, in furtherance of justice, permit them to offer evidence upon their original case. 4. When the evidence is concluded, the court shall instruct the jury in writing upon the law applicable to the case, and, if it state the testimony of the case, it must inform the jury that they are the exclusive judges of all questions of fact; provided, that with the consent of both parties entered in the minutes the court may instruct the jury orally, in which case the instructions shall be taken down by the court stenographer. 5. When the court has instructed the jury, unless the case is submitted to the jury on either side, or on both sides, without argument, the plaintiff must commence and may conclude the argument. 6. If several defendants, having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument. [C. L. §§ 3360*-1*. Kansas (1889) 4370*. Cal. C. Civ. P. 2 607*. Judicial knowledge, 3374. Public writings, ?? 3375-3395. Private writings, ?? 3396-3411. Witnesses, 22 3412-3441. Affidavits, ?? 3442-3448. Depositions, ?? 3449-3465. Admission or inspection of writings, 3473, 3474. Nonsuit, 23181. Jury exclusive judges of credibility of witnesses, ? 3412. When testimony officially reported may be used in subsequent trial, 3475. Evidence addressed to jury, 3478. Discussions of law addressed to the court, 3479. Offering of evidence after motion for nonsuit overruled not a waiver, ? 3181. Exceptions, 3282-3290. For decisions on instructions in special cases, see ?? 2488, 3304. The court may permit plaintiff, after defendant has rested, to introduce evidence in chief. Godbe v. Young, 1 U. 55. Rebutting evidence is such as explains, repeals or counteracts evidence that comes out on the defense. Smith v. Richardson, 2 U. 424. What may be admitted as testimony in rebuttal rests in the sound discretion of the court. Harrington v. Chambers, 3 U. 94; 1 P. 362. Court has discretion in a proper case to limit number of witnesses as to one point, and also time consumed in argument. Skeen v. Mooney, 8 U. 157; 30 P. 363. It is discretionary with the court to permit counsel to read from a law book to the jury. Gilberson v. Miller M. & S. Co., 4 U. 46; 5 P. 699. Instructions desired should be presented to the court before the charge is given. Flint v. Nelson, 10 U. 261; 37 P. 479. Party cannot complain of lack of specific instructions upon a point when he failed to request them. Griffiths v. Clift, 4 U. 462; 11 P. 609. The court having charged properly on the whole case may refuse to instruct further. Cunningham v. U. P. Ry. Co., 4 U. 206; 7 P. 795. Reddon v. U. P. Ry. Čo., 5 U. 344; 15 P. 262. Scoville v. S. L. City, 11 U. 60; 39 P. 481. Chapman v. Sou. Pac. Co., 12 U. 30; 41 P. 551. All instructions should be applicable to the evidence. Firman v. Bateman, 2 U. 268. Snell v. Crowe, 3 U. 26; 5 P. 522. Requests not applicable to the evidence should be refused. Clampitt v. Kerr, 1 U. 246. Ogden Clay Co. v. Harvey, 9 U. 497; 35 P. 510. Thomas v. Springville, 9 U. 426; 35 P. 503. If not so applicable, though abstractly correct, it is error. Such error does not compel reversal, however, unless it appears that the jury was misled. Clampitt v. Kerr, 1 U. 246. Davis v. Utah Southern Ry. Co., 3 U. 218; 2 P. 521. In instructing jury that the burden of proving his allegations is on plaintiff, it is not necessary to repeat such allegations if once stated. Scott v. Provo, 14 U. 31; 45 P. 1005. Where testimony that is immaterial against a defendant is admitted for the purpose of implicating another defendant, who is nonsuited, the jury should be instructed to disregard the immaterial testimony. Marks v. Culmer, 6 U. 419; 24 P. 528. Request which is too much upon the weight of the evidence, confining jury to particular circumstances stated without notice of others of importance, and selecting a particular fact as controlling to the exclusion of others, should be refused. Leak v. R. G. W. Ry. Co., 9 U. 246; 33 P. 1045. An instruction not responsive to any issue in the case, is reversible error, in that it is calculated to mislead the jury. Holt v. Pearson, 12 U. 63; 41 P. 561. It is error for the court to intimate an opinion as to the weight of evidence or the facts. Hawley v. Corey, 9 U. 175; 33 P. 695. Where there is a substantial conflict in the evidence or room for a difference of opinion among reasonable men as to the existence of material facts, it is error to instruct the jury to find a verdict. Johnston v. Meaghr, U.; 47 P. 861. It is not error in a court to direct a jury to return a verdict of no cause of action in a proceeding in replevin for the possession of goods or their value, against a sheriff who attached the same as the property of B, when the liability of the officer depends upon the validity of a sale of the goods claimed to have been made by bill of sale, which has never been recorded, and where there was no change of possession as required by section 2837, C. L. 1888. Munns v. Loveland, · ·Ŭ. —; 49 P. 743. Instruction that "if the jury find for the plaintiff they may, in computing the damages, take into consideration the expenses of his care, and a fair compensation for the physical and mental suffering caused by the injury"; held, not error. Giblin v. McIntyre, 2 U. 384. Affirmed by U. S. Sup. Ct., 25 Lawy. Co-op. Ed. 572. An instruction that the jury should take into consideration the probable earnings, the age, health, business capacity, habits and experience, also the value of his services in the care of his family and education of his child, but should not take into consideration the distress of mind of the plaintiffs, caused by the death of the deceased, or any personal suffering of the deceased; held, to correctly state the law as to measure of damages. Openshaw v. Utah & Nevada Ry. Co., 6 U. 132. No opinion on file. Syllabus written by reporter. An instruction that the jury could take into consideration the benefits of association, comfort and pleasure the family of the deceased would have received from him had his life been spared, as well as the number and ages of deceased's children, is not error. Chilton v. U. P. Ry. Co., 8 U. 47; 29 P. 963. justify an instruction of a verdict for plaintiff. Jones v. Memmott, 8 U. 212; 30 P. 752. On the trial of an action for libel charging rape, it is not error for the court to charge the jury as to what constitutes the crime of rape. Lowe v. Herald Co., 6 U. 175; 21 P. 991. In an action of an agent for commission where fraud in the sale is not pleaded, an instruction that if the agent acted in his own interest or that of the purchaser he could not recover, was properly refused. Lawson v. Thompson, 10 U. 462; 37 P. 732. The trial court has the power to make the record of the case correspond with the actual ruling, notwithstanding an appeal may have been taken to the supreme court. Wasatch Mining Co. v. Jennings, 14 U. 221; 46 P. 1106. The facts examined in ejectment case and held to 3148. Instruction refused or modified must be so marked. Either party may before the court has instructed the jury, or later by consent of the court, ask special instructions, which shall be in writing and numbered, and the court must either give such instructions as requested or refuse to do so, or give the instructions with modifications. Those refused shall be so marked; those modified shall be marked in such manner as clearly to point out the changes therein by words indicating the same. [C. L. § 3362*. Cal. C. Civ. P. 2 609; Col., Mills' An. C. 2 187*; Kansas (1889) 4370*. See citations, 3147. 3149. Instructions to be numbered; read without comment. The instructions given shall be in consecutively numbered paragraphs, and shall be read to the jury without oral comment or explanation. Iowa, McClain's An. C. ?? 3993-3995; Neb. (1895) ? 2449; N. Dak. (1895) ? 5433*. 3150. Instructions to be signed; may be taken by jury. When the charge is in writing, it must be signed by the judge and delivered to the jury, and may be taken by the jury in their retirement and returned with their verdict into court. Col., Mills' An. C. 2 187; Kansas (1889) 2 4370*. charge into the jury room. Scoville v. Salt Lake City, 11 U. 60; 39 P. 481. 3151. Instructions to be filed. Exceptions to charge, when and how taken. All instructions requested or given shall be filed by the clerk and become a part of the judgment roll. Exceptions to the charge or any portion thereof, or to the refusal or modification of any instruction requested, shall be taken at the time the charge is given or before verdict. No reason need be given for such exceptions, but the exceptions shall be noted upon the minutes of the court, or by the court stenographer if one is in attendance. Iowa, McClain's An. C. ? 3994; N. Dak. (1895) ? 5433*. Judgment roll, 3197. Exceptions generally, ? 3282-3290. 3152. View by jury. When, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation or of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person other than the person so appointed, shall speak to them on any subject connected with the trial. [C. L. § 3363. Cal. C. Civ. P. 2 610. 3153. Admonition to jury upon separating. If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by, any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them. [C. L. § 3364. Cal. C. Civ. P. 2 611. 3154. What papers may be taken to jury room. Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause, except depositions, or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in possession, and they may also take with them notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person. [C. L. § 3365. Cal. C. Civ. P. 2 612. 3155. Jury may decide in court or retire. Duty of officer. When the case is finally submitted to the jury, they may decide in court or retire for deliberation. If they retire they must be kept together in some convenient place under charge of an officer until they agree upon a verdict or are discharged by the court. Unless by order of the court, the officer having them under his charge must not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon their verdict; and he must not before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed upon. [C. L. § 3366*. Cal. C. Civ. P. 2 613*. 3156. Jury may ask for further instructions. After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the parties or counsel. Such information must be given in writing or taken down by the stenographer. [C. L. § 3367*. 3157. Sick juror may be discharged. Effect. If, after the impaneling of the jury and before verdict, a juror becomes sick so as to be unable to perform his duty, the court may order him to be discharged. In that case the trial may proceed with the other jurors or another juror may be sworn and the trial begin anew, or the jury may be discharged and a new jury then or afterwards impaneled. [C. L. § 3368. Cal. C. Civ. P. 2 615. 3158. Action retried when jury discharged or fail to render verdict. In all cases where the jury are discharged, or prevented from giving a verdict by reason of accident or other cause during the progress of the trial or after the cause is submitted to them, the action may be again tried immediately or at a future time, as the court may direct. [C. L. § 3369. Cal. C. Civ. P. 2 616. Judge or juror may be called as a witness, effect, ? 3415. 3159. Court open during deliberation of jury. Sealed verdict. While the jury are absent the court may adjourn from time to time in respect to other business, but it is nevertheless open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged. The court may direct the jury to bring in a sealed verdict at the opening of the court, in case of an agreement during a recess or adjournment for the day. [C. L. § 3370. Cal. C. Civ. P. 2 617. Courts open on legal holiday when jury out, ? 701. 3160. Return of jury. Three-fourths may render verdict. Poll. When the jury or three-fourths of them, have agreed upon a verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman; the verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury, and the inquiry made whether it is their verdict. Either party may require the jury to be polled, which is done by the court or clerk asking each juror if it is his verdict; if upon such inquiry or polling more than one-fourth of the jurors disagree thereto, the jury must be sent out again, but if no such disagreement be expressed, the verdict is complete and the jury discharged from the case. [C. L. § 3371*; '92, p. 46*. Cal. C. Civ. P. 2 618. legal holiday, 701. Three-fourths of the jurors may find a verdict, Con. art. 1, sec. 10. Verdict may be received or jury discharged on a 3161. Informal or insufficient verdict, how corrected. When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out. [C. L. § 3372. Cal. C. Civ. P. 2 619. CHAPTER 29. THE VERDICT. 3162. Verdict either general or special. Defined. The verdict of the jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant; a special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented that nothing shall remain to the court but to draw from them conclusions of law. [C. L. § 3373. Cal. C. Civ. P. 2624. Report of referee on the facts has the effect of a special verdict, ? 3177. 3163. Court may direct special verdict or special findings. In all cases, the court may direct the jury to find a special yerdict in writing upon all or any of the issues, or may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding must be filed with the clerk and entered upon the minutes. When a special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly. [C. L. § 3374*. Cal. C. Civ. P. ? 625*. Verdict containing a finding on the whole issue, also special findings, is good. Smith v. Ireland, 4 U. 187; 7 P. 749. In personal injury case, directing special findings is discretionary with court. Webb v. D. & R. G. Ry., 7 U. 17; 24 P. 616. Where special verdict is capable of two constructions, one supporting general verdict, the other not, appellate court will adopt the one that sustains the general verdict. Warner v. U. S. Mutual Accident Ass'n, 8 U. 431; 32 P. 696. 3164. In action for recovery of money, verdict must state amount. When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a counterclaim for the recovery of money is established exceeding the amount of the plaintiff's claim as established, the jury must also find the amount of the recovery. [C. L. § 3375. Cal. C. Civ. P. 2 626. Judgment on counterclaim, ? 3193. 3165. In action for specific personal property, verdict to state value and damages. In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant by his answer, claims a return thereof, the jury, if their verdict be in favor of the plaintiff, or if, being in favor of the defendant, they also find that he is entitled to a return thereof, must find the value of the property, and, if so instructed, the value of specific portions thereof, and may, at the same time, assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property. [C. L. § 3376. Cal. C. Civ. P. 2 627. Judgment in action to recover personal property, 23194. In an action in replevin, brought against the county collector, to recover possession of cattle levied upon for taxes, where the plaintiff between |