jury of inquest which inquired into the death of a person whose death is the subject of the information or indictment. 5. Having served on a trial jury which has tried another person for the offense charged. 6. Having been one of a jury formerly sworn to try the same charge, and whose verdict was set aside, or which was discharged without a verdict, after the case was submitted to it. 7. Having served as a juror in a civil action brought against the defendant for the act charged as an offense. 8. Having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged. 9. If the offense charged is punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted or compelled to serve as a juror. 10. Because he is, or, within a year preceding, has been engaged or interested in carrying on any business, calling, or employment, the carrying on of which is a violation of law, where the defendant is indicted for a like offense. 11. Because he has been a witness, either for or against the defendant, on the preliminary trial or before the grand jury. 12. Having a belief that the punishment fixed by law is too severe for the offense charged. [C. L. § 5022*, On a trial for bigamy in Utah, it is sufficient objection to a juror that he was or had been living in polygamy. U. S. v. Reynolds, 1 U. 319. Affirmed, 98 U. S. 145. Also, that a juror declines to answer whether he was living in polygamy. Id. Also, that a juror has conscientious scruples against indicting persons for polygamy. Id. U. S. v. Clawson, 4 U. 34; 5 P. 689. Affirmed, 114 U. S. 477. Also, that a juror believes that polygamy is a direct revelation. U. S. v. Miles, 2 U. 19. Same case, 103 U. S. 304. It is good ground for challenge for principal cause, that the juror has formed an opinion as to the issue to be tried, but it must be founded on some evidence and be more than an impression. U. S. v. Reynolds 1 U. 319. Affirmed, Reynolds v. U. S., 98 U.S. 145. A juror who has formed an opinion as to the guilt or innocence of the deceased, but says that sad opinion would not influence his verdict, is a comp tent juror, no other facts being shown. Id. Juror who has formed an impression" as t defendant's guilt is not disqualified. People v. Thiede, 11 U. 241; 39 P. 837. Affirmed, 159 U. S. 510. On the trial of a saloon keeper for murder, a jurer is not disqualified by the fact that he is prejudised against the business of saloon keeping, the man? at issue having no reference to such business I A challenge may be properly sustained when » juror entertains conscientious scruples against th death penalty. State v. Kessler, U.; 49 P 293. - 4835. Exemption is a privilege, not a cause of challenge. Ar exemption from service on a jury is not a cause of challenge but the privilege of the person exempted. [C. L. § 5023. Cal. Pen. C. ? 1075. 4836. Cause stated in challenge for bias. When opinion a disqualification. In a challenge for implied bias, one or more of the causes stated in section forty-eight hundred and thirty-four must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of section forty-eight hundred and thirty-three must be alleged; 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 it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters submitted to him. The challenge may be oral, but must be entered in the minutes of the court or of the stenographer. [C. L. § 5024. Cal. Pen. C. 1076. Evidence in a criminal case printed in a newspaper is a statement in a public journal within the meaning of the statute declaring that no person shall be disqualified as a juror by reason of his having formed or expressed an opinion upon a matter or cause to be submitted to him "founded upon public rumor, statements in public journals etc. Hopt v. Utah, 120 U. S. 430. Same case, 4 U. 247; 9 P. 407. A juror testified that he had read a newspaper account of the homicide; that he had never for or expressed an opinion; that he had formed al impression as to the defendant's guilt from the newspaper account read, which it would take evidence to remove, but he could try the case fairly and impartially. Another juror stated that he had read newspaper accounts of the homicide, had a strong impression as to the guilt of the defendant arising therefrom which it would take evidence to remove, but that his mind was entirely free from opinions or conclusions; that he could accord defendant the full presumption of innocence, and would enter the jury box unbiased; held, that said jurors were not disqualified for implied bias, not having formed nor expressed an unqualified opinion or belief. People v. Thiede, 11 U. 241; 30 P. 837. Affirmed, 159 Ú. S. 510. This section is not unconstitutional. Id. Impressions or qualified and conditional opinions formed upon reports, which easily yield to the evidence of witnesses having personal knowledge of the facts and testifying under oath, constitute no valid objection to a juror. But if the juror's mind is closed against and is in opposition to the truth as it may be related by the witnesses, resists its force and perverts the judgment, then such juror is disqualified for having "formed an unqualified opinion." People v. O'Loughlin, 3 U. 133; 1 P. 653. 4837. Exception to challenge. Denial. The adverse party may except to the challenge in the same manner as to a challenge to the panel, and the same proceedings must be had thereon as are prescribed in section forty-eight hundred and twenty-two, except that if the challenge be allowed the juror must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge. [C. L. § 5025. Cal. Pen. C. 1077. 4838. Trial of challenge. If the facts are denied, the challenge must be tried. [C. L. § 5026. Cal. Pen. C. 1078. Trial by triers, presence of defendant. Hopt v. People, 110 U.S. 574. Decision final. U. S. v. Miles, 2 U. 19; Id., 103 U. S. 304. 4839. Id. Juror as witness. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry. [C. L. § 5027. Cal. Pen. C. 1081. 4840. Other witnesses. Rules of evidence. Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge. [C. L. § 5028. Cal. Pen. C. ? 1082. 4841. Id. Court must allow or disallow challenge. The court must allow or disallow the challenge, and its decision must be entered in the minutes of the court. [C. L. § 5029. reviewing court unless the error is manifest. Reynolds v. U. S., 98 U. S. 145. Same case, 1 U. 226, 319. All challenges to an 4842. Order of taking challenges for cause. individual juror, except peremptory, must be taken, first by the defendant, and then by the state, and each party must exhaust all his challenges before the other begins. [C. L. § 5030. Cal. Pen. C. 1086. 4843. Id. The challenges of either party for cause need not all be taken at once, but they must be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class: 1. To the panel. 4844. Peremptory challenges, order of. If all challenges on both sides are disallowed, either party, first the state and then the defendant, may take a peremptory challenge, unless the parties' peremptory challenges are exhausted. [C. L. § 5032. Cal. Pen. C. 2 1088. Jury in criminal case should be impaneled as fol lows: Clerk must first draw from box twelve names and both prosecution and defense be required to exhaust all their challenges to those drawn, and those unchallenged be sworn to try the case; then a sufficient number of additional names to complete the twelve be drawn, and this process be repeated till a jury obtained. People v. Callaghan, 4 U. 49; 6 P. 49. Defendant who does not exhaust his peremptory challenges cannot complain on appeal of disallow ance of a challenge for cause. People v. Hopt, 4 U. 247; 9 P. 407. Affirmed, 120 U. S. 430. If a challenge to a juror for implied bias has been improperly denied, and defendant afterward peremptorily challenges the juror, he cures the error and cannot complain. People v. Thiede, 11 U. 241; 39 P. 837; 159 U. S. 510. CHAPTER 33. THE TRIAL. 4845. Order of trial. The jury having been impaneled and sworn, the trial must proceed in the following order: 1. If the information or indictment is for a felony, the clerk must read it and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with. 2. The county attorney or other counsel for the state must open the case and offer evidence in support of the charge. 3. The defendant or his counsel may then open the defense, and offer evidence in support thereof. 4. The parties may then respectively offer rebutting testimony only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case. 5. When the evidence shall have been concluded, unless the case is submitted to the jury on either side, or on both sides without argument, the county attorney or other counsel for the state must open, the counsel for the defendant or defendants must follow, and the county attorney or other counsel for the state may conclude the argument. 6. The court must then charge the jury as provided in subdivision four of section thirty-one hundred and forty-seven, and in sections thirty-one hundred and forty-eight, thirty-one hundred and forty-nine, and thirty-one hundred and fifty. [C. L. § 5033*. Cal. Pen. C. 1093*. Owing to the fact that this section was improperly amended it is not in harmony with 3147. Rules for determining competency of witnesses the same as in civil trials, exception, 5011. Rules of evidence, unless herein otherwise provided, the same as in civil trials, 25012. Defendant as a witness, 5015. Defendant not prejudiced by refusal or failure to testify, 5015. Husband and wife as witnesses for or against each other, 5014. Report of testimony of witness taken on previous trial when admissible, 22 4513, 5013. Jury may take with them the written instructions, 4881. Exceptions, 4943-4949. SUBDV. 2. Provision that prosecuting attorney or other counsel for the people must make opening statement is not mandatory. U. S. v. Sprague, 8 U. 378; 31 P. 1049. ORDER OF EVIDENCE. Allowing testimony in rebuttal which properly should have been given in chief is discretionary with the court. People v. Tidwell, 4 U. 506; 12 P. 61. The order in which testimony shall be admitted is largely within the discretion of the trial court. People v. Thiede, 11 U. 241; 39 P. 837. Affirmed, 159 U. S. 510. See citations under "cross-examination, rebuttal, etc.," 5012. ARGUMENT. Statements of counsel in his argument to the jury of facts not in evidence, which are immediately checked by the court, who instructs the jury not to consider facts not in evidence, that they should consider only evidence and consider it fairly, not ground for reversal. U. S. v. Musser, 4 U. 153, 7 P. 389. People v. Hopt, 4 U. 247; 9 P. 407; 120 U. S. 430. Private counsel may assist prosecuting attorney and make closing argument to jury. People v Calton, 5 U. 451; 16 P. 902. People v. Tidwell, 4 U. 506; 12 P. 61. Counsel in arguing the cause to the jury are justified in referring to the evidence and in making from it such deductions as they think are justitied by the evidence. People v. Hite, 8 U. 461; 33 P. 254. It was not error in the counsel for the prosecution in his opening statement to the jury to inform them that he expected to show the killing of two other young men besides the one with which the prisoner was charged under the facts and circumstances of this case. State v. Hayes, 14 U. 118; 46 P. 952. CHARGE TO THE JURY. Where instructions are made separately the court should remind the jury that they are all to be considered together. People v. Wiggins, 1 U. 324. Offense may be defined in language of statute without addition or explanation. People v. Biddlecome, 3 U. 208; 2 P. 194. Charge that jury are "sole judges of the facts," etc., need not be in exact language of statute. People v. Chadwick, 7 U. 134; 25 P. 737. Where evidence is wholly circumstantial, it is the duty of the court to charge upon the law of that subject even though the request asked was erroneous. People v. Scott, 10 U. 217; 37 P. 335. Instruction containing several propositions, one or more of which are erroneous, should be refused. People v. Biddlecome, 3 U. 208; 2 P. 194. U. S. v. Musser, 4 U. 153; 7 P. 389. Instruction given in substance need not be repeated in language of counsel. People v. Biddlecome, 3 U. 208; 2 P. 194. People v. Olsen, 4 U. 413; 11 P. 577. Court having charged properly on the entire case may refuse to instruct further. U. S. v. Musser, 4 U. 153; 7 P. 389. People v. Hampton, 4 U. 258; 9 P. 508. Where full and accurate charge is given, it is not error to reject special requests, though correct. People v. Chadwick, 7 U. 134; 25 P. 737. Charge should be considered as a whole, each part as qualified by the others, and if, when so considered, it is not misleading, it is not erroneous. U. S. v. Snow, 4 U. 280; 9 P. 501. U. S. v. Bassett, 5 U. 131; 13 P. 237. People v. Olsen, 4 U. 413; 11 P. 577. Instructions should always be given in reference to the evidence in the case, and the whole charge of the court should be construed together. People v. Lyman, 2 U. 30. Where inconsistent charges were given, one of which is erroneous, the jury is presumed to have followed that which is erroneous. People v. Hancock, 7 U. 170; 25 P. 1093. People v. Berlin, 10 U. 39; 36 P. 199. Defendant cannot complain of instruction given by his request, nor of refusal not excepted to, to charge as requested. People v. Berlin, 9 U. 383; 35 P. 498. People v. Gough, 2 U. 70. Charging as to facts. The judge, in charging the jury, has the right to review the facts and state his opinions and conclusions therefrom to them. They are, however, the sole judges of the weight of the evidence and the credibility of the witnesses (decision rendered under C. L. 2242, 1876). People v. Lee, 2 U. 441. Requests for instructions which pass upon the evidence and in effect direct acquittal are never proper except on points entirely unsupported by proof. People v. Biddlecome, 3 U. 208; 2 P. 194. Evidence received which is admissable for one purpose but not for all purposes of the trial should be restricted by instruction to the purpose for which it is admissible. People v. Biddlecome, 3 U. 208; 2 P. 194. Declarations of the court in the presence of the jury and instructions in effect stating that defendants are guilty are erroneous as invading province of the jury. People v. Glasmann, 12 U. 238; 42 P. 956. Miscellaneous instructions. On a trial for murder, an instruction that where the evidence, outside of the presumption of good character, is clear and explicit, on which no doubt can be cast, good character will only cause the jury to hesitate and think about the matter" is erroneous. People v. Hancock, 7 U. 170: 25 P. 1093. The court in its charge, without applying the language to defendant, characterized drunkenness as a vice and misconduct; held, not to be error. People v. Calton, 5 U. 451; 16 P. 902. See Calton v. Utah, 130 U. S. 83. It is not error for a trial court to charge that the jury should weigh with caution the testimony of a witness who appeared to be a weak-minded person with little intelligence. Lowe v. Herald Co., 6 U. 175; 21 P. 991. Reducing charge to writing. Failure of reporter to take down oral charge is waived if not objected to. U. S. v. Gough, 8 U. 428; 32 P. 695. Under a statute which requires the instructions of the judge to the jury to be reduced to writing before they are given, and provides that they shall form part of the record and be subjects of appeal, it is error to give instructions not reduced to writing otherwise than by a reference to a certain page of a law magazine. Hopt v. People, 104 U. S. 631; 114 U. S. 488. See People v. Hopt, 3 U. 396; 4 P. 250; Id., 3 U. 404; 5 P. 565; Id., 4 U. 247; 9 P. 407. The record, which stated that the court charged the jury, did not contain the charge in writing, nor show that with the defendant's consent it was given orally; held, error. Id. When an oral charge has been given the presumption, in the absence of any statement to the contrary in the record, is that the reporter took it down as required by statute. State v. Kessler, U. 49 P. 293. 4846. Order of argument may be changed. When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the court, the order of argument prescribed in the last section may be departed from. [C. L. § 5034. Cal. Pen. C. 1094*. 4847. Argument may be restricted. If the information or indictment is for an offense punishable with death, two counsel on each side may argue the case to the jury. If it is for any other offense, the court may, in its discretion, restrict the argument to one counsel on each side. [C. L. § 5035*. Cal. Pen. C. 1095. Reasonable doubt. A 4848. Defendant presumed innocent. defendant in a criminal action shall be presumed to be innocent, until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he shall be entitled to an acquittal. [C. L. § 5036. Cal. Pen. C. 1096. New information or resubmission of charge, ?? 4775, 4783. A charge to the jury that if, after an impartial comparison and consideration of all the evidence, they can truthfully say that they have an abiding conviction of the defendant's guilt, such as they would be willing to act upon in the more weighty and important matters relating to their own affairs, they have no reasonable doubt, is not erroneous. Hopt v. Utah, 120 U. S. 430. Same case, 4 U. 247; 9 U. 407. Instructions as to what constitutes a reasonable Peo doubt, not aptly expressed, but which could not have misled the jury, is not reversible error. ple v. Kerm, 8 U. 268; 30 P. 988. A charge to a jury that proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist; held, not erroneous. Miles v. U. S., 103 U. S. 304. Same case, 2 U. 19. An instruction that "a man has to commit his first crime ** he has to break over the rules of good conduct and good life for the first time sometime in his life" is erroneous, and is not cured by a subsequent instruction as to the effect of good character. 1093. People v. Hancock, 7 U. 170; 25 P. Where the state seeks to convict a defendant upon circumstantial evidence, it must show by a preponderance of the evidence that the alleged facts and circumstances which complete the chain are true, and it must also show that such facts and circum stances are not incompatible upon any reasonable hypothesis with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of the defendant's guilt. The chain of evidence must be complete and unbroken and established beyond a reasonable doubt. State v. Hayes, 14 U. 118; 46 P. 752. 4849. When doubt as to degree, conviction to be of lowest. When it shall appear that the defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he must be convicted of the lowest of such degrees only. [C. L. § 5037. Cal. Pen. C. 1097. Jury must find the degree, 4892. 4850. Defendants charged jointly. Separate or joint trial. When two or more defendants shall be jointly charged with a felony, any defendant requiring it must be tried separately. In other cases the defendants jointly charged may be tried separately or jointly, in the discretion of the court. [C. L. $ 5038. Cal. Pen. C. 1098. Two persons jointly indicted under section 5451, R. S. U. S., are entitled to separate trial under section 262, code of criminal procedure, and section 1845 of the compiled laws of 1876. U. S. v. Jones, 5 U. 552; 18 P. 233. On the separate trial of one of two indicted together for larceny, it is fatal error to admit the acts and statements of the other made after the crime had been admitted. People v. Farrell, 11 U. 414; 40 P. 703. 4851. Defendant discharged to testify for the state. When two or more persons shall be included in the same charge, the court may, at any time before the defendants have gone into their defense, on the application of the county attorney, or other counsel for the state, direct any defendant to be discharged, that he may be a witness for the state. [C. L. § 5039. Cal. Pen. C. ? 1099*. Testimony of accomplice not sufficient to convict unless corroborated, 2 4862. 4852. Id. To testify for co-defendant. When two or more persons shall be included in the same charge, and the court shall be of the opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must order him to be discharged before the evidence is closed, that he may be a witness for his co-defendant. [C. L. § 5040. Cal. Pen. C. 1100. 4853. Id. Such discharge a bar. The order mentioned in the last two sections shall be an acquittal of the defendant discharged, and shall be a bar to another prosecution for the same offense. [C. L. § 5041. Cal. Pen. C. ? 1101. Bar generally, ?? 4488, 4490, 4515. 4854. Treason. Proof necessary. Upon a trial for treason, the defendant cannot be convicted unless upon the testimony of two witnesses to the same overt act, or upon confession in open court; nor can evidence be admitted on an overt act not expressly charged in the information or indictment: nor can the defendant be convicted unless one or more overt acts be expressly alleged therein. Cal. Pen. C. 1103. Treason defined, proof, Con. art. 1, sec. 19. 4855. Conspiracy. Pleading and proof. Upon a trial for conspiracy, in a case where an overt act shall be necessary to constitute the offense, the defendant shall not be convicted unless one or more overt acts shall be expressly alleged in the information or indictment, nor unless one of the acts alleged shali have been proved; but other overt acts not alleged may be given in evidence. [C. L. § 5043*. Cal. Pen. C. 1104. Conspiracy defined, ?? 4156-4158. 4856. Murder. Burden of proof. Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, shall devolve upon him, unless the proof on the part of the prosecution tends to show that the crime |