CHAPTER IV. CHALLENGING THE JURY. 1913. SEO. 326. A challenge is an objection made to the trial jurors, and is of two Chailenges. kinds : First. To the panel: Second. To an individual juror. 1914. SEC. 327. When several defendants are tried together, they are not allowed Co-defendants to to sever their challenges, but must join therein. join in challenges. 1915. SEC. 328. The panel is a list of jurors returned by a sheriff to serve at a par- 8 Cal. 301. ticular court or for the trial of a particular cause. Panel defined. 1916. SEC. 329. A challenge to the panel is an objection made to all the jurors Challenge to returned, and may be taken by either party. panel. 1917. SEC. 330. A challenge to the panel can only be founded on a material depart- Grounds. ure from the forms prescribed by statute in respect to the drawing and return of the jury, or an intentional omission of the sheriff to summon one or more of the jurors drawn. taken. 1918. SEC. 331. A challenge to a panel must be taken before a juror is sworn, and When and how must be in writing, specifying plainly and distinctly the facts constituting the grounds of challenge. 1919. SEC. 332. If the sufficiency of the facts alleged as a ground of challenge be Exception to determined, the adverse party may except to the challenge. The exception need not challenge. be in writing, but shall be entered on the minutes of the court. 1920. SEC. 333. Upon the exception, the court shall proceed to try the sufficiency Trial of of the challenge, assuming the facts alleged therein to be true. challenge. exception. 1921. SEC. 334. If on the exception the court deem the challenge sufficient, it may, Withdrawal of if justice require it, permit the party excepting to withdraw his exception, and to Amendment of deny the facts alleged in the challenge. If the exception be allowed, the court may in challenge. like manner permit an amendment of the challenge. challenge. 1922. SEC. 335. If the challenge be denied, the denial may in like manner be oral, Denial of and shall be entered on the minutes of the court, and the court shall proceed to try the question of fact. witnesses. 1923. SEC. 336. Upon such trial, the officers, whether judicial or ministerial, whose Officers irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the grounds of challenge. ing officer. 1924. SEC. 337. When the panel is formed from persons whose names are not drawn Challenge for from the grand jury box, a challenge may be made to the panel on account of any bias bias in summonof the officer who summoned the jury, which would be good ground of challenge to a juror. Such objection shall be made in the same form and determined in the same manner as when made to a juror. challenge. 1925. SEC. 338. If, either upon an exception to the challenge, or a denial of the Effect of fact, the challenge be allowed, the court shall discharge the jury, so far as the trial of the indictment in question is concerned. If it be disallowed, the court shall direct the jury to be impaneled. 1926. SEC. 339. Before a juror is called, the defendant must be informed by the Challenge to court, or under its direction, that if he intend to challenge any individual juror, he must do so when the juror appears and before he is sworn. individual juror. 1927. SEC. 340. A challenge to an individual juror is either: The same. First. Peremptory; or, Second. For cause. taken. 1928. SEC. 341. It must be taken when the juror appears, and before he is sworn, When to be but the court may for good cause permit it to be taken after the juror is sworn, and 4 Cal. 198. 10 Cal. before the jury is completed. 59. 16 Cal. 129. 1929. SEC. 342. A peremptory challenge may be taken by either party, and may be Peremptory challenge. oral. It is an objection to a juror for which no reason need be given, but upon which the court shall exclude him. 1930. SEC. 343. If the offense charged be punishable with death, or with imprison- Nuumber of ment in a State prison for life, the defendant shall be entitled to ten and the State to peremptory challenges. five peremptory challenges; on a trial for any other offense, the defendant shall be 8 Cal. 301. entitled to five and the State to three peremptory challenges.(") [Amendment, approved April 4, 1864; 1863-4, 394; took effect from passage. (*) The original section gave the defendant "twenty" peremptory challenges instead of "ten" in the first case, and "ten” instead of "five" in the second. 1931. SEO. 344. A challenge for cause may be taken by either party. It is an objection to a particular juror, and is either: First. General, that the juror is disqualified from serving in any case; or, First. A conviction for felony : Second. A want of any of the qualifications prescribed by statute to render a person a competent juror: Third. Unsoundness of mind, or such defect in the faculties of the mind or the organs of the body, as renders him incapable of performing the duties of a juror. 1933. SEC. 346. Particular causes of challenge are of two kinds: First. For such a bias as when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this act as implied bias: Second. For the existence of a state of mind on the part of the juror in reference to the case which, in the exercise of a sound discretion on the part of trier, leads to the inference that he will not act with entire impartiality, and which is known in this act as actual bias. 1934. SEO. 347. A challenge for implied bias may be taken for all or any of the following causes, and for no other: First. Consanguinity, or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant: Second. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages: Third. Being a party adverse to the defendant in a civil action, or having complained against, or been accused by him in a criminal prosecution: Fourth. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment: Fifth. Having served on a trial jury which has tried another person for the offense charged in the indictment: Sixth. Having been one of a jury formerly sworn to try the same indictment, and whose verdict was set aside, or which was discharged without a verdict, after the case was submitted to it: Seventh. Having served as a juror in a civil action brought against the defendant, for the act charged as an offense : Eighth. Having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged: Ninth. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror. 1935. SEC. 348. An exemption from service on a jury is not a cause for challenge, but the privilege of the person exempted. 1936. SEC. 349. In a challenge for implied bias, one or more of the causes stated in section three hundred and forty-seven must be alleged. In a challenge for actual bias, it must be alleged that the juror is biased against the party challenging. In either case the challenge may be oral, but must be entered on the minutes of the court. 1937. SEO. 350. The adverse party may except to the challenge in the samne manner as to a challenge to the panel, and the same proceedings shall be had thereon as prescribed in sections three hundred and thirty-two and three hundred and thirtythree, except that if the exception be allowed, the juror shall be excluded. He may orally deny the facts alleged as the ground of challenge. 1938. SEC. 351. If the facts be denied, the challenge shall be tried as follows: First. If it be for implied bias, by the court. Second. If it be for actual bias, by triers. 1939. SEC. 352. The triers shall be three impartial persons, not on the jury panels, appointed by the court; all challenges for actual bias shall be tried by three triers thus appointed, a majority of whom may decide. 1940. SEO. 353. The triers shall be sworn generally to inquire whether or not the several persons who may be challenged, and in respect to whom the challenges shall be given to them in charge, are biased against the challenging party, and to decide the same truly according to the evidence. 1941. SEC. 354. Upon the trial of a challenge to an individual juror, the juror Juror may be challenged may be examined as a witness to prove or disprove the challenge, and shall be compelled to answer every question pertinent to the inquiry therein. examined witnesses. 1942. SEC. 355. Other witnesses may also be examined on either side, and the rules And other of evidence applicable to the trial of other issues, shall govern the admission or exclusion of testimony on the trial of the challenge. bias. 1943. SEC. 356. On the trial of the challenge for an implied bias, the court shall Trial for implied determine the law and the facts, and shall either allow or disallow the challenge, and direct an entry accordingly on the minutes. triers. 1944. SEC. 357. On the trial of a challenge for actual bias when the evidence is Instructions to concluded, the court shall instruct the triers that it is their duty to find the challenge true if in their opinion the evidence warrants the conclusion that the juror has such a bias against the party challenging him, as to render him not impartial, and that if from the evidence they believe him free from such bias, they must find the challenge not true. The court shall give them no other instruction. final. 1945. SEC. 358. The triers must thereupon find the challenge either true or not Triers' decision true, and the decision is final. If they find it true, the juror shall be excluded. 1946. SEC. 359. All challenges to an individual juror except peremptory must be Order of making taken first by the defendant, and then by the people, and each party must exhaust all 6 Cal. 405. his challenges to each juror as he is called before the other begins. challenges. 1947. SEC. 360. The challenges of either party need not all be taken at once, but Order of they must be taken separately in the following order, including in each challenge all the causes of challenge belonging to the same class: challenges. First. To the panel. Second. To an individual juror for a general disqualification. Fourth. To an individual juror for an actual bias. 1948. SEC. 361. If all the challenges on both sides be disallowed, either party may Peremptory still take a peremptory challenge, unless the peremptory challenges be exhausted. TITLE VII. OF THE TRIAL. CHAPTER I. TRIAL. challenge. 1949. SEC. 362. The jury having been impanelled and sworn, the trial shall proceed Order of trial. in the following order: First. If the indictment be for felony, the clerk must read the indictment and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with. Second. The district attorney or other counsel for the people must open the cause and offer the evidence in support of the indictment. Third. The defendant or his counsel may then open the defense, and offer his evidence in support thereof. Fourth. The parties may then respectively offer rebutting testimony only, unless the court, for good reasons, in furtherance of justice, permit them to offer evidence upon their original cause. Fifth. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the counsel for the people must open and may conclude the argument. 8 Cal. 341. 12 Cal. 345. Sixth. The judge shall then charge the jury if requested by either party; he may 6 Cal. 246. state the testimony and declare the law; but shall not charge the jury in respect to 8 Cal. 423. matters of fact; such charge shall be reduced to writing before it is given; and in no 9 Cal. 115. case shall any charge or instructions be given to the jury, otherwise than in writing, unless by the mutual consent of the parties.(") [Amendment, approved May 7, 1855, 275; took effect from June 1, 1855. (*) The original section differed from the amendment in the fifth and sixth subdivisions. The language of the fifth was that "the counsel for the people must commence, and the defendant or his counsel may conclude the argument to the jury." The sixth was, "the court shall then charge the jury, if requested by either party." The original section had been previously amended by act passed May 15, 1854, 169, which inade the fifth subdivision road as in the text. Departures from above order. Arguments of counsel. Presumption of innocence. Presumption as to degree of guilt. Separate trials. 5 Cal. 183. 8 Cal. 801. Discharge of co-defendant to make witness. Discharge of eo-defendant for 1950. SEC. 363. When the state of the pleadings require it, or in any other case for good reasons, and in the sound discretion of the court, the order prescribed in the last section may be departed from.(") [Amendment, passed May 15, 1854, 169. 1951. SEC. 364. If the indictment be for an offense punishable with death, two counsel on each side may argue the cause to the jury, in which case they must do so alternately. If it be for any other offense, the court may in its discretion restrict the argument to one counsel on each side. 1952. SEC. 365. A defendant in a criminal action is presumed to be innocent until the contrary be proved, and in case of a reasonable doubt whether his guilt be satisfactorily shown, he is entitled to be acquitted. 1953. SEC. 366. When it legally appears that a defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only. 1954. SEC. 367. When two or more defendants are jointly indicted for a felony, any defendant requiring it shall be tried separately. In other cases the defendants jointly indicted shall be tried separately or jointly in the discretion of the court. 1955. SEC. 368. When two or more persons are indicted in the same indictment, the court may at any time before the defendant has gone into his defense, on the application of the district attorney, direct any defendant to be discharged from the indictment, that he may be a witness for the people. 1956. SEC. 369. When two or more persons are included in the same indictment, want of evidence, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it shall order him to be discharged from the indictment, before the evidence shall be deemed closed, that he may be a witness for his co-defendant. Such discharge deemed acquittal. Evidence in treason cases. The same. Conspiracy. Rape. Evidence of accomplice. 16 Cal. 110. Evidence of false pretense. Personating another. 1957. SEO. 370. The order mentioned in the last two sections shall be deemed an acquittal of the defendant discharged, and shall be a bar to another prosecution for the same offense. 1958. SEC. 371. 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. 1959. SEC. 372. Upon a trial for treason evidence shall not be admitted for an overt act not expressly charged in the indictment, nor shall the defendant be convicted unless one or more overt acts be expressly alleged therein. 1960. SEC. 373. Upon a trial for conspiracy in a case where an overt act is required by law to constitute the offense, the defendant cannot be convicted unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts alleged be proved, but other overt acts not alleged in the indictment may be given in evidence. 1961. SEC. 374. Proof of actual penetration into the body is sufficient to sustain an indictment for rape or for the crime against nature. 1962. SEC. 375. A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely show the commission of the offense or the circumstances thereof. 1963. SEC. 376. Upon a trial for having, with an intent to cheat or defraud another, designedly, by any false pretense obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property, or valuable thing, the defendant cannot be convicted if the false pretense be expressed in language, and unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof, be in writing, subscribed by, or in the handwriting of the defendant, or unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances.(') [Amendment, approved March 13, 1862, 53. 1964. SEC. 377. The last section shall not apply to a prosecution for falsely representing or personating another, and in such assumed character receiving any money or property. 1965. SEO. 378. Upon a trial for (") The original section had the following words in addition, "but in every case the defendant shall have the right to close the argument to the jury." () Original section: SEC. 876. Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having ob having, under promise of marriage, seduced and tained from any person any money, personal property, or valnable thing, no evidence shall be admitted of a false pretense expressed in language and unaccompanied by a false token or writing, unless the pretense or some note or memorandum thereof be in writing, either subscribed by or in the handwriting of the defendant. seduction. had illicit connexion with an unmarried female of previous chaste character, the Evidence of defendant shall not be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense. 1966. SEO. 379. If it appear by the testimony that the facts proved constitute an Proceedings where higher offense of a higher nature than that charged in the indictment, the court may direct offense than the jury to be discharged, and all proceedings on the indictment to be superseded, charged proved and may order the defendant to be committed or continued on, or admitted to bail, to answer any new indictment which may be found against him for the higher offense. 1967. SEC. 380. If an indictment for a higher offense be dismissed by the grand Where indictment for higher iury, or be not found at or before the next term, the court shall again proceed to try offense not the defendant on the original indictment. found. 1968. SEC. 381. The court may also direct the jury to be discharged when it appears Discharge of that it has not jurisdiction of the offense, or that the facts charged in the indictment jury for want of jurisdiction, &c. do not constitute an offense punishable by law. 1969. SEC. 382. If the jury be discharged because the court has not jurisdiction Discharge of of the offense charged in the indictment, and it appear that it was committed out of the jurisdiction of this State, it shall order the defendant to be discharged. defendant. committed tion of another 1970. SEC. 383. If the offense were committed within the exclusive jurisdiction of Proceedings another county of this State, the court shall direct the defendant to be committed for where offense such time as shall be deemed reasonable to await a warrant from the proper county within jurisdicfor his arrest, or if the offense be a misdemeanor only, it may admit him to bail in a county. recognizance, with sufficient securities that he will, within such time as the court may appoint, render himself amenable to a warrant for his arrest from the proper county, and if not sooner arrested thereon will attend at the office of the sheriff of the county where the trial was had at a certain time particularly designated in the recognizance, to surrender himself upon the warrant, if issued, or that his bail will forfeit such sum as the court may fix, and to be mentioned in the recognizance. 1971. SEU. 384. In the case provided for in the last section, the clerk shall forth- Transmission of copies of papers. with transmit a certified copy of the indictment, and of all the papers filed in the action, to the district attorney of the proper county, the expense of which transmission shall be chargeable to that county. 1972. SEC. 385. If the defendant be not arrested, as provided in section three hun- When defendan discharged. dred and eighty-three, on a warrant from the proper county, he shall be discharged from custody, or his bail in the action shall be exonerated, or money deposited instead of bail, shall be refunded, as the case may be, and the sureties in the recognizance shall be discharged. arrest. 1973. SEC. 386. If he be arrested, the same proceedings shall be had thereon as Proceedings on upon the arrest of a defendant in another county, on a warrant of arrest issued by a magistrate. when facts offense. 1974. SEC. 387. If the jury be discharged because the facts as charged do not con- Proceedings stitute an offense punishable by law, the court shall order that the defendant, if in proved do not custody, be discharged; or if admitted to bail, that his bail be exonerated, or if he constitute an have deposited money instead of bail, that the money deposited be refunded to him, unless in the opinion of the court a new indictment can be framed, upon which the defendant can be legally convicted, in which case it may direct that the case be submitted to the same or another grand jury. anew. 1975. SEC. 388. If the court direct that the case be submitted anew, the same pro- Case submitted ceedings must be had thereon as are prescribed in sections two hundred and eightyfour and two hundred and eighty-five, both inclusive. advise an 1976. SEC. 389. If at any time the evidence on either side is closed, the court Court may deem the same insufficient to warrant a conviction, it may advise the jury to acquit acquittal. the defendant. But the jury shall not be bound by such advice, nor shall the court for any cause prevent the jury from giving a verdict, except as provided in sections three hundred and sixty-eight, three hundred and sixty-nine, three hundred and seventy-nine, and three hundred and eighty-one. 1977. SEC. 390. Whenever in the opinion of the court it is proper that the jury View of should view the place in which the offense is charged to have been committed, or in premises which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of the sheriff, to the place, which shall be shown to them by a person appointed by the court for that purpose. 19 Cal. 426. 1978. SEC. 391. No person shall be suffered to speak to the jury on any subject con- No person to speak to jury. |