Points decided.

THE PEOPLE v. W. A. HENDERSON.

TIME OF OBJECting to Grand JURORS.—If the defendant is in custody, objections to grand jurors, on the ground of not being citizens or taxpayers, must be taken by challenge when the grand jury is impanelled, or they are waived.

CHALLENGE OF TRIAL JURY FOR CAUSE.--Unless it clearly appears from the answers of the juror that the District Court erred in its ruling

upon a challenge *for cause in a criminal case, the verdict will [466] not be set aside on that ground by an appellate Court.

TESTIMONY OF QUARRELS OF DECEASED ON MURDER TRIAL.- On a trial for murder, testimony of quarrels of the deceased with a person other than the defendant, and threats made by deceased against such person immediately before the homicide, is not admissible on the part of the defense, if the defendant was not present and the facts were not brought to his knowledge before the killing.

ERROR IN REJECTING TESTIMONY CURED.-If, on the trial of a criminal case, the Court erroneously rejects testimony offered by the defense, and the testimony is closed, and the Court adjourns until the next day, and upon the meeting of the Court on the next day it offers to allow the rejected testimony, and to give time to defendant to send for his witness, or to allow him to read the testimony taken down by the Clerk on a former trial, and he elects to read, and does read the testimony taken down, the judgment will not be reversed because of the first error.

INSTRUCTION IN LANGUAGE OF STATUTE.--There was no error in giving section thirty-seven of the Act concerning crimes and punishments, in the language of the statute as an instruction to the jury.

REPUDIATION OF AGREEMENT IN CRIMINAL CASE.--The appellate Court will not reverse a judgment of conviction in a criminal case, by reason of

, alleged error in a proceeding had in the course of the trial, by express agreement of the defendant and his counsel, unless bound to do so by some controlling rule of law.

CHANGE OF JUDGES DURING A CRIMINAL TRIAL BY CONSENT.-If, after the evidence is closed on the trial of a criminal case, the Judge of another district, with the consent of the defendant and his counsel, upon the request of the Judge who commenced the trial, takes the place of the presiding Judge, charges the jury, and receives the verdict, a verdict of guilty will not be set aside on the ground of irregularity in this respect. WAIVER OF OBJECTION TO CHANGE OF JUDGES IN CRIMINAL CASE.-- If, in the progress of a criminal trial, the Judge of the district leaves the bench, and another Judge takes his place, and hears the argument and receives the verdict, and the Judge of the district afterwards resumes his seat upon the bench, and passes on a motion for new trial without objection, the defendant waives any objection to the further control of the proceedings, and the passing of sentence by the Judge of the district in which the trial was had.

Argument for Appellant.

CHANGE OF JUDGES BEFORE SENTENCE IS PRONOUNCED.-The Judge of a district in which the cause was tried may pass sentence on a verdict of guilty, when the Judge of another district presided during the argument of the case to the jury and received the verdict.

WHO MAY PRONOUNCE SENTENCE ON VERDICT.--A Judge who did not try the case, if legally presiding, has jurisdiction to pronounce sentence.

APPEAL from the District Court, Fourteenth Judicial District, Placer County.

The defendant was indicted for killing one James Drew. This was the second trial of the defendant on the indictment.

The defendant appealed from the judgment and order denying a new trial.

[467] *The other facts are stated in the opinion of the Court.

Jo. Hamilton, for Appellant.

The Court erred in allowing the challenge to the juror tried for cause. He had neither formed nor expressed an unqualified opinion. (Wood's Dig. 296, Sec. 347; People v. Reynolds, 16 Cal. 110.)

Eisner's testimony should have been stricken out. The defendant does not appear to have been cognizant of or had anything to do with Mills' declarations or acts, and his testimony was calculated to prejudice him in the minds of the jury.

The Court should have allowed the testimony of McIntire, Ford, and Harford. The defense was that the act was committed in self-defense. Whatever tended to show that the defendant had reasonable cause to believe himself in danger was admissible. This testimony, although defendant was not present, would have shown the dangerous character of deceased. (People v. Arnold, 14 Cal. 476.)

The Court erred in rejecting the testimony of witness Starr, as to what a witness for the defendant, who had died, had testified to on the first trial of defendant. (1 Phil. on Ev. 337, 338, 339; 1 Greenl. Ev., Secs. 163, 166.) The prosecution contend that this error was cured by the subse

Argument for the People.

quent offer of the Court to admit the testimony. A defendant intrusts his case to his attorney, who arranges his testimony and introduces one branch of it at a time. If testimony is improperly rejected and the case closed, and an offer made the next day to allow it, the effect on the jury is prejudicial to the defendant. They had the period of the adjournment of the Court to reflect on the case as it stood, and of course their minds are influenced by it.

The assent of the defendant to a change of Judges cannot cure the error. (Muldrow v. Norris, 2 Cal. 78.) The Judge who had not heard the argument or reviewed the verdict was not authorized to pronounce sentence. Section 27 of Stat. 1863, p. 336, is fully explanatory of this point.

*J. G. McCullough, Attorney-General, for the People. [468] The defendant was in custody, and should have challenged the grand jurors in the County Court. Assuming that the challenge of Kind was for implied bias, I contend that allowance of a challenge to a trial juror for implied. bias is not a ground of exception. (Cr. Pr. Act, Sec. 433.) If the defendant challenges, and the challenge is disallowed, this may be a reversible error. Even if the allowance of a challenge is ground of an exception, how can it be said that the defendant suffered any injury? (Cr. Pr. Act, Sec. 499.) The defendant was tried by a competent jury. (People v. Gatewood, 20 Cal. 149.)

The testimony of Eisner about the knife was a part of the res gesta. The rejection of the testimony of McIntire and others was not error. The acts of the deceased towards persons other than defendant were not relevant. The case of People v. Arnold decides that where the plea is selfdefense, the declaration of deceased at the time of borrowing the weapon may be proved to show the purpose for which it was borrowed. The alleged error in rejecting Starr's testimony was cured by the subsequent action of the Court. Merely because the Court made an error and then rectified it, is not ground of reversal. (1 Greenl. Ev., Sec. 431.)

Opinion of the Court-Sawyer, J.

Defendant had a right to agree to a change of Judges. (People v. Garcia, 25 Cal. 531; French v. Teschemacher, 24 Cal. 559.) The new Judge had a right to sit and hold a Court (not a term merely, as the law formerly stood) on the request of the presiding Judge. (Stat. 1863, 336, Sec. 27; People v. Wells, 2 Cal. 207.)

By the Court, SAWYER, J.:

The defendant was indicted for murder, tried and found guilty in the second degree.

Defendant moved to set aside the indictment on the

ground that Charles Gould, one of the grand jurors, [469] at the time he was summoned, was not a citizen,

although he was a citizen at the time the Grand Jury was impanelled, he having, in the meantime, been naturalized; and that Gould Osborne, another grand juror, was not a taxpayer. The defendant, being in custody, was present in Court with his counsel at the time the Grand Jury was impanelled, examined such jurors as he saw fit as to their qualifications, and exercised his right of challenge. No objection was then made to either of these two jurors, nor did defendant question them upon the points referred to. Conceding the point to be otherwise good, under these circumstances the objection came too late, when taken for the first time after indictment found. The objection should have been made by challenge at the time of the impanelling of the jury. (Cr. Pr. Act, Secs. 183, 189, 297; People v. Colmere, 23 Cal. 632; People v. Arnold, 15 Cal. 479; People v. Chung Lit, 17 Cal. 322; People v. Romero, 18 Cal. 93.)

The answers of the juror Kind are such that we should not be justified in saying that the Court erred in allowing the challenge on the part of the prosecution. The most that can be said is, that the answers do not disclose a clear case, and where error is not clearly shown the ruling of the District Court will not be disturbed.

There was no error in refusing to strike out the testimony of Eisner.

Opinion of the Court-Sawyer, J.

The Court having refused to permit defendant to prove by McIntire, Ford, Harford and others, that at the public meeting on the evening of the homicide, deceased drew his knife upon a stranger, and would have cut him had he not been prevented; also, that he slapped the naked knife. against the cheek of another man, at the same time using threatening language, this ruling is assigned as error. Defendant was admitted not to have been present at the time the transactions offered in evidence took place, and defendant's counsel did not offer to show that these acts were brought to the knowledge of defendant. The counsel for the prosecution at the time stated that he did not object to their giving in evidence any *declaration [470] made by deceased against the defendant. We think there was no error in excluding these acts and quarrels of deceased with other parties having no relation to the defendant. With still less plausibility can it be urged that the acts of a similar character, which transpired some ten days before, offered to be proved by other witnesses, were admissible.

No exception was taken to the ruling in rejecting Carnahan's testimony to declarations of defendant made an hour or so before the homicide. Besides, they were inadmissible. (People v. Wyman, 15 Cal. 74.)

The defendant offered to prove by Starr what a witness testified at a former trial, said witness having since died. The Court rejected the testimony, on objection by the District Attorney. The testimony having been closed, Court adjourned till the next morning. On the opening of Court. in the morning, the District Attorney stated that he was inclined to think the testimony ought to have been admitted, and offered to allow the case to be opened and the testimony introduced, to which suggestion the Court assented. The defendant then raised the objection that his witness. had gone home, whereupon the Court offered to give him any reasonable time to procure the witness, or to allow him, if he preferred it-the District Attorney consenting-to read the testimony of the deceased witness from the min