TITLE VII. Of Proceedings after the Commencement of the Trial and before Judgment. CHAP I. CHALLENGING THE JURY, §§ 1055-88. II. THE TRIAL, §§ 1093-1131. III. CONDUCT OF THE JURY AFTER CAUSE IS SUB- IV. THE VERDICT, §§ 1147-67. V. BILLS OF EXCEPTION, §§ 1170-6. VII. ARREST OF JUDGMENT, §§ 1185-8. CHAPTER I. CHALLENGING THE JURY. § 1055. Definition and division of challenges. § 1061. § 1062. Exception, if sufficiency of the challenge be denied. 1063. § 1065. Proceedings, if challenge allowed. § 1066. Defendant to be informed of his right to challenge. § 1067. Kinds of challenges to individual juror. § 1068. Challenge, when taken. S1069. Peremptory challenge, what, and how taken. § 1070. Number of peremptory challenges. § 1071. Definition and kinds of challenge, for cause. § 1072. General causes of challenge. § 1073. Particular cause of challenge. § 1074. Ground of challenge for actual bias. 1076. Causes of challenge, how stated. § 1077. Exceptions to challenge and denial thereof. § 1078. Challenge, how tried. § 1079. § 1080. Triers, how appointed. Majority may decide. [Repealed.] § 1084. Instructions on trial for actual bias. [Repealed.] § 1085. Verdict of triers, and its effect. [Repealed.] $1086. Challenges, first by the defendant. 1087. Order of challenges. $ 1088. Peremptory challenges, when may be taken. 155. A challenge is an objection made to the trial jurors, and is of two kinds: PEN. CODE.-35. 1. To the panel. 2. To an individual juror. Challenges.-The court may, of its own motion, for any good reason, excuse a qualified juror-32 Cal. 43; see 2 Mason, 91; 10 Gratt 767; 20 Ga. 164; 2 Dev. & B. 221. The rejection of a juror by the court does not prejudice the defendant, and is not matter available in error -32 Cal. 46; 17 id. 80; 7 id. 140; 4 Gray, 19. 1056. When several defendants are tried together, they cannot sever their challenges, but must join therein. Severing challenges.-Where defendants elect to be tried jointly they cannot sever their challenges-8 Cal. 301; 26 Ala. 107; 10 Ohio, ; 10 R. I. 159. 1057. The panel is a list of jurors returned by a sheriff to serve at a particular court, or for the trial of a particular action. 1058. A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party. 1059. A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civi actions, or on the intentional omission of the sheriff to summon one or more of the jurors drawn. Challenge to the panel.-A challenge to the panel is based on the partiality, or bias, or default of the officer making the return of the venire-49 Cal. 175; 1 Mann. (Mich.) 451; 1 Leach, 101; or if the statute requirements are not complied with-20 La. An. 356; 13 Minn. 341. will not lie on the ground that the jury was summoned after con mencement of the term-10 Cal. 5). That all persons of a particus fraternity have been excluded, is no ground of challenge, if these returned possess the requisite qualifications-3 Wend. 314. It must be taken before plea-8 Barn. & C. 417; 2 Moody & R. 406. 1060. A challenge to the panel must be taken befce a juror is sworn, and must be in writing or be noted by the phonographic reporter, and must plainly and distinct state the facts constituting the ground of challenge. 1061. If the sufficiency of the facts alleged as groun of the challenge is denied, the adverse party may exce to the challenge. The exception need not be in writing but must be entered on the minutes of the court, or of ter phonographic reporter, and thereupon the court mas proceed to try the sufficiency of the challenge, assum the facts alleged therein to be true. In writing.-It should be in writing-1 Mann. (Mich.) 451; 1 Car. & K. 235, 519. An amended challenge takes the place of the original48 Cal. 256; see post, § 1068, note. Trial by the court.-An opinion imperfectly formed, or one based upon the supposition that facts are as they have been represented, may be proved on such a challenge-2 Parker Cr. R. 16; 13 Fla. 675. A fixed opinion of guilt or innocence need not be proved when the challenge is for favor-id. And any fact or circumstance from which bias and prejudice may be inferred is admissible in evidence-1 Denio, 281; see 3 id. 121. It is not sufficient to prove that a juror has formed an unfavorable opinion of the defendant-2 Barb. 216; see post, § 1076, note. 1062. If, on the exception, the court finds the challenge sufficient, it may, if justice requires it, permit the party excepting to withdraw his exception, and to deny the facts alleged in the challenge. If the exception is allowed, the court may, in like manner, permit an amendment of the challenge. Challenge to panel.-An amended challenge is a substitute for the original-48 Cal. 256. 1063. If the challenge is denied, the denial may be oral, and must be entered on the minutes of the court, or of the phonographic reporter, and the court must proceed to try the question of fact; and upon such trial, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge. Evidence on challenge.-The defendant cannot offer his ex parte affidavit in evidence in support of the challenge-48 Cal. 256. 1064. When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner, as if made to a juror. Bias on summoning.-This section only allows a challenge of the panel, on account of such bias in the officer or person serving the venire, as is mentioned in § 1073-49 Cal. 178. Where the sheriff, acting, had formed and expressed an opinion that defendant was guilty, the challenge, on the ground of bias, ought to have been allowed-40 Cal. 592. See 10 Cal. 50. 1065. If, either upon an exception to the challenge or a denial of the facts, the challenge 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 impanneled. [In effect April 9th, 1880.] 1066. Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror he must do so when the juror appears, and before he is sworn. 1067. A challenge to an individual juror is either1. Peremptory; or, 2. For cause. Subd. 1. See 46 Cal. 122; 37 id. 678. Subd. 2. See 37 Cal. 678. 1068. It must be taken when the juror appears, and before he is sworn to try the cause; but the court may for cause permit it to be taken after the juror is sworn, and before the jury is completed. Challenge, when taken.-A peremptory challenge cannot be take after a juror is sworn to try the issues, except for cause showCal. 122; 37 id. 678; 10 id. 59. In a criminal action, twelve names шIK be drawn from the jury-box, and the defendant may examine ea separately, and exhaust his challenges for cause before challeng any one peremptorily. If he should accept say six, and challenges & those accepted must then be sworn, and six additional names maste drawn and presented for examination, with which the same process should be repeated, and so continued until the jury is complete Pac. C. L. J. 882; 37 Cal. 678; 46 id. 122; 45 id. 323. If a party attend to challenge for implied bias, and it being disallowed he then car lenges peremptorily, if it does not appear affirmatively that he exhausted his peremptory challenges at the time a full panel was sworn, he is not prejudiced by disallowance of the challenge 430. See 20 Cal. 147. 1069. A peremptory challenge can be taken by either party, and may be oral. It is an objection to a juror ! which no reason need be given, but upon which the cour must exclude him. Peremptory challenge, how taken.-A peremptory challenge 2 not be allowed after the juror is sworn to try the issue, exce;t f cause shown-46 Cal. 122; 37 id. 678. The right inay be exercised afte the twelve jurors are passed or taken, but before they are sworn tac the issue-4 Cal. 200; 16 id. 131. He may interpose his chair. any time after appearance of the juror, till he is sworn in, anal a za of court, restricting him to a particular time, would be in contacts the preceding section-24 Cal. 13; see 37 id. 690. The court, in thes ercise of a sound discretion, may allow the prosecution to inter. peremptory challenge after the juror has been accepted, and t he is sworn to try the cause-53 Cal. 577; and the court may, for cas after the juror is sworn and before the jury is complete, permit pď |